ELANGAKOON v. OFFICER-IN-CHARGE ,POLICE STATION ,EPPAWALA AND ANOTHER

044-SLLR-SLLR-2007-V-1-ELANGAKOON-v.-OFFICER-IN-CHARGE-POLICE-STATION-EPPAWALA-AND-ANOTHER.pdf


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[2007] 1 Sri L.R
ELANGAKOON
v
OFFICER-IN-CHARGE, POLICE STATION, EPPAWALAAND ANOTHER
COURT OF APPEALIMAM, J.
SARATH DE ABREW, J.
CA (PHC) APN 99/2006HC ANURADHAPURA 15/2004MC THAMBUTTHEGAMA 24789MARCH 6, 2006FEBRUARY 23, 2007MAY 5, 2007JUNE 25, 2007JULY 11,2007
Penal Code Section 140, Section 419- Code of Criminal Procedure Act Section27, 179, 185,279, 320(1)-Guilty-Appeal against conviction-Appeal is it aftersentence? – Validity-Laches-Alternative remedies – Exceptional circumstances- Petition of appeal irregularly drawn – Presented to wrong Court – Fatal? – HighCourt of the Provinces (Sp. Pro) Act 19 of 1990 – Section 5(e), Section 9 -Constitution, Articles 138(1) and 154(6) – Document not filed – Fatal?
The petitioner was found guilty and convicted under section 419 of the Penal Coderead with section 179 of the Criminal Procedure Code, and being aggrieved by theverdict of guilty without waiting for the sentence to be imposed on the 14th dayafter the conviction the petitioner preferred an appeal against the conviction to the
CA
Elangakoort v Officer-in-Charge, Police Station, Eppawala and
another:
399
High Court in terms of section 320(1). On the following day the Magistrate imposedthe sentence and sent up the record for hearing of the appeal to the High Court.On an objections being lodged that, the High Court lacked jurisdiction since theappeal had been lodged on a date before the imposition of punishment, the appealwas dismissed, for want of jurisdiction.
The petitioner moved in Revision to set aside the order of the High Court refusingto take cognizance of the petition of appeal.
Held:
The petitioner has failed to file a copy of the petition of appeal filed in theHigh Court. It is fatal.
The petition of appeal filed in the High Court is addressed to His Lordshipthe Chief Justice and their Lordships in the Supreme Court, though thecaption states "In the Court of Appeal bearing a Court of Appeal number.
As the intention of the petitioner appears to be to invoke the revisionaryjurisdiction of the Court of Appeal under Art 138 of the Constitution this isa fundamental defect as the purported petition and affidavit is notaddressed to the Hon. President and the other Lordships of the Court ofAppeal. The petitioner has not made any attempt even on a later dateunder Rule 3(8) to amend his pleadings – This is fatal.
The pleadings (petition of appeal and affidavit in the High Court) are intotal disarray and are ambiguous. In a revision application the pleadingsshould not be ambiguous and specific – the petition should be rejected onthis ground alone.
The Court of Appeal does not have appellate jurisdiction in terms of Art 138(1) read under Art 154(6) in respect of decisions of the Provincial HighCourt made in the exercise of appellate jurisdiction and it is the SupremeCourt that has jurisdiction in respect of appeals from the High Court -Section 9 High Court of the Provinces (Sp. Pro) Act 19 of 1990.
The petitioner should have appealed to the Supreme Court under section9 of Act 19 of 1990 and not to the Court of Appeal.
The petitioner has not pursued the alternative remedy available, by filing alegally tenable appeal before seeking to invoke the revisionary powers ofthe Court of Appeal.
Held further:
The judgement or final order appealable under section 320(1) of the Codedoes not encompass an order of verdict of guilty as contemplated undersection 185 of the Code, section 279 clearly stipulates that in a case ofconviction, the judgment comprises of the verdict and sentence. Hence theappealable final order or judgment contemplated in section 320(1) wouldnecessarily be after the passing of sentence.
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Section 279 reads "The judgmentshall be pronounced in Open Court
after the verdict is recoided or save as provided in section 203 at somesubsequent time – therefore the petitioners claim that the fact that thejudgment was not pronounced on the day the verdict was recorded wasan illegality is clearly unfounded.
Held further
It is also abundantly clear that the petitioner has not specifically orexpressly pleaded such exceptional circumstances in the body of thepetition other than the substantial questions of law.
Held further
The impugned order is dated 16.3.2006 while the petition has been filedon 24.7.2006 entailing an unexplained delay of 4 months and 8 days – inthe absence of an explanation to the contrary this delay be consideredunreasonable.
APPLICATION in revision from an order of the High Court of Anuradhapura.
Cases referred to:-
T. Varapragasam and anotherv S.A. Emmanuel-CA (Rev.) – 931/84 – CAM24.07.91.
CA (Rev) 149/86 – CAM 17.11.1998.
M.A. Sirisena v C.D. Richard Arsala and others CA 536784 – CAM 24.10.90.
W.K.M.B. Perera v People's Bank-SC 141/94 – SCM 12.05.95.
Dharmaratne and another v Palm Paradise, Colombo and others – 2003 – 3Sri LR 179.
UDA v Ceylon Entertainments Ltd., and another CA 1319/2001 – CAM05.04.2002.
Wickremasekera v Officer in Charge, Police Station, Ampara – SC 1/2003 -SCM 30.03.2004.
Camilus Ignetius v OIC Uhana and others – CA Rev. 907/89.
H.S. Watuhewa v S.B. Guruge – CA 141/90 – CAM 25.09.1990.
Biso Menike v Ran Banda and others – CA 95/98 – CAM 09.01.2002
U. Tilakaratne v OIC Kekirawa – CA 346/01 – CAM 16.12.1992.
Forest v Leefe – 13 NLR 119
Upul Jayasuriya with P. Radhakrishnan for appellant-appellant-petitioner.
Ayesha Jinasena SSC for 1st and 2nd respondent-respondents.
October 4,2007
SARATH DE ABREW, J.
This is an application for revision filed by the 2nd Defendant-Appellant-Petitioner (hereinafter referred to as the Petitioner) to setaside the impugned order dated 16.03.2006 (P3) of the High Court of
CA
Elangakoon v Offlcer-in-Charge, Police Station, Eppawala and
another (Sarath De Abrew J.)
Anuradhapura refusing to take cognizance of the Petition of Appealdated 01.03.2004 preferred to that Court by the Appellant-Petitioner. Inthis case the 2nd defendant-appellant-petitioner and 04 others werecharged in the Magistrate Court of Thambuttegama with committingoffences of unlawful assembly and mischief by fire punishable undersection 140 and section 419 respectively of the Penal Code. After trialon 11.02.2004 the 1st, 3rd, 4th and 5th accused were acquitted anddischarged of the aforesaid charges while the 2nd defendant-appellant-petitioner was acquitted and discharged with regard to the1st charge but found guilty and convicted of the 2nd charge undersection 419 of the Penal Code read with section 179 of the Code ofCriminal Procedure, and identification and sentence was put off to
Being aggrieved of the aforesaid verdict of guilty, withoutwaiting for the sentence to be imposed, on the 14th day after theconviction, on 01.03.2004, the petitioner preferred an Appeal againstthe conviction to the High Court of Anuradhapura in terms of section320(1) of the Code of Criminal Procedure. On the following day
the learned Magistrate of Thambuttegama, after perusalof the finger-print report which revealed no previous convictions,imposed a sentence of Rs. 1500/- fine and imprisonment for a periodof one year on the petitioner and sent up the record for hearing of theAppeal to the High Court of Anuradhapura.
On hearing of the Appeal at the High Court, the prosecution hadraised a preliminary objection of law as to the maintainability of the saidAppeal on the following grounds.
That the High Court lacked jurisdiction since the appeal hadbeen lodged on a date before the imposition of punishment.
That an Appeal in terms of section 320(1) of the Code ofCriminal Procedure shall be only against a judgment or finalorder of the Magistrate and that since the order dated11.07.2004 does not include the sentence, it is not ajudgment or final order which attracts the appellatejurisdiction of the High Court.
The learned Judge of the High Court of Anuradhapura, after dueinquiry, had delivered the impugned order on 16.03.2006 upholding theaforesaid preliminary objection of the prosecution and accordingly haddismissed the Appeal of the petitioner for want of jurisdiction. It is
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against the aforesaid impugned order (P3), that the petitioner isseeking to invoke the revisionary powers of this Court in order to setaside the abovementioned order of the High Court refusing to entertainthe Appeal, urging on his behalf questions of law and fact listed (a) to(i) in paragraph 09 of the petition dated 15.07.2006.
The respondents-respondents (hereinafter referred to as therespondents) did not file objections but on the inquiry date of
the learned Senior State Counsel on behalf of therespondents raised a two-fold preliminary objection on questions of lawto be argued and decided, before the main matter is adjudicated on itsmerits. Thereafter the matter was fixed for inquiry with regard to thefollowing preliminary objection raised by the respondents.
Has the petitioner exhausted other remedies available tohim before filing this Revision Application?
Has any delay being caused in filing this RevisionApplication?
On the question of the aforesaid preliminary objection, both partieshave filed two sets of written submissions with case law authoritiesand have also tendered oral submissions when the matter was arguedon 23.05.2007. In order to arrive at a just and reasonable conclusionwith regard to the aforesaid preliminary objection, this Court hasperused the entirety of the petition and affidavit of the petitioner andP1-P3 documents and the copious but illuminating written submissionsand case law authorities filed by both parties.
The revisionary powers of this Court is a discretionary power andits exercise cannot be demanded as of right unlike the statutoryremedy of Appeal. Certain pre-requisities have to be fulfilled by apetitioner to the satisfaction of this Court in order to successfullycatalyse the exercise of such discretionary power. This is bestillustrated in T. Varapragasam & another v S.A. Emmanuel where itwas held that the following tests have to be applied before thediscretion of the Court of Appeal is exercised in favour of a partyseeking the revisionary remedy.
The aggrieved party should have no other remedy.
If there was another remedy available to the aggrieved partythen revision would be available if special circumstancescould be shown to warrant it.
Elangakoon v Officer-in-Charge, Police Station, Eppawala
CAand another (Sarath De Abrew J.)^03
The aggrieved party must come to Court with clean handsand should not have contributed to the current situation.
The aggrieved party should have complied with the law atthat time.
The acts complained of should have prejudiced hissubstantial rights.
The acts or circumstances complained of should haveoccasioned a failure of Justice.
Based on sound principles that have been repeatedly built up,upheld and handed down by our Superior Courts during the lastmillenium, the following too could be added to the aforesaid list of pre-requisites in order to successfully invoke revisionary discretion.
There should not be any unreasonable delay in filing theapplication!2)
There should be full disclosure of material facts and showuberrima tides as non-disclosure is fatal.
(eg. M.A. Sirisena v C.D. RichardArsala & others.!5))
As the conduct of the petitioner is intensely relevant to thegranting of relief, such conduct should not be repellant to theattraction of exercise of revisionary power.
(eg. W.K.M.B. Perera v The People's Bank.!4>)
The petitioner should plead or establish exceptionalcircumstances warranting the exercise of revisionarypowers.
(eg. Dharmaratne and another v Palm Paradise ColomboLtd. and others.!5))
The existence of exceptional circumstances should beexpressly pleased in the petition.
(eg. UDA v Ceylon Entertainments Ltd. & another.!6))
In the light of the above principles that govern the invoking ofrevisionary powers of our Superior Courts, It is now pertinent andopportune to identify and examine the several points in dispute and theseveral contentions of law which springs to the eye with regard to thepreliminary objection raised on behalf of the respondent, which may bebriefly set out as follows:
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Has the petitioner pursued the alternative remedy of filing anAppeal against the impugned order P3.
If so has the petitioner produced this Petition of Appealwhich is a document material to this application under Rule3(1 )(a) of the Court of Appeal (Appellate Procedure) Rules1990.
Has the petitioner filed this Appeal under the correctprovisions of law to the correct forum.
Even if an Appeal is pending or not, does it preclude thepetitioner from invoking the revisionary powers of this Court,provided there are exceptional circumstances.
If so has the petitioner expressly pleaded or establishedsuch exceptional circumstances.
(0 Notwithstanding the above has the petitioner successfullyestablished an error or illegality on the face of the record towarrant intervention by the exercise of revisionary powers.
Is there an unreasonable and unexplained delay in filing thisrevision application.
Has the petitioner suppressed material facts or failed toshow uberrima fides towards Court.
Has the very conduct of the petitioner contributed to thecurrent situation and was the conduct of the petitionerrepellant towards the attraction and invoking of thediscretionary revisionary powers.
Before this Court proceeds to examine the aforesaid contentions itis pertinent to note that the very petition and affidavit of the petitioner isper se defective for the following reasons.
(a) Firstly, though the caption states "In the Court of Appeal ofthe Democratic Socialist Republic of Sri Lanka" and bearsthe Court of Appeal Revision Application No. CA (PHC) APN99/2006, both the Petition and the Affidavit are addressed"To His Lordship the Honourable Chief Justice and the otherHonourable Justices of the Supreme Court of theDemocratic Socialist Republic of Sri Lanka." As the intentionof the petitioner appears to be to invoke the revisionaryjurisdiction of the Court of Appeal under Article 138 of the
Elangakoon v Officer-in-Charge, Police Station, Eppawala
CAand another (Sarath De Abrew J,)405
Constitution, this is a fundamental defect as the purportedPetition and Affidavit is not addressed to the HonourablePresident and the other Honourable Justices of the Court ofAppeal. The petitioner has not made any attempt to correctthis position and amend his pleadings even on a latter dateunder Rule 3(8) of the Court of Appeal (AppellateProcedure) Rules of 1990.
(b) Secondly, the Petition has been drafted in such a way whereit appears to be a mixture of a Petition of Appeal and aPetition in a Revision application. Paragraph 09 of thepetition refers to "the appellant respectfully prefers thisAppeal to Your Lordships Court" while the prayer to thepetition states "where the appellant respectfully prays thatYour Lordship's Court be pleased to" and sub-paragraph (a)to the prayer states "Issue notice of this Appeal to therespondents-respondents." On the other hand the caption ofthe Petition speaks of a "Revision Application" whileparagraph 10 of the Petition speaks of "RevisionJurisdiction."
On an analysis of the juxtaposition of words Appeal and Revision inthe purported Petition and the contraplex meanings generated by thePetition as to whether the relief is sought from the Supreme Court orthe Court of Appeal, it appears to this Court that the pleadings of thepetitioner are in total disarray and are ambiguous giving rise to theconclusion that draftsman of the pleadings was either totally negligentor was completely lost in the realms of revision and appeal, confusedas to whether the relief should be sought in what form or what forum.
In a revision application of this nature the pleadings should not beambiguous but specific and negligence on the part of the draftsman ofthe pleadings should accrue to the disadvantage of the petitioner andthe Petition must be rejected on this ground alone.
However as this matter has escaped the attention of Court at thetime of support and issue of notice and has not been canvassed by therespondents at the inquiry, this Court would now proceed to examinethe validity of the Preliminary objection raised by the respondents.
The main contention of the respondent was that the petitioner hadnot exhausted other remedies available to him before filing this
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Revision Application. The bone of contention was that even if thepetitioner had filed an Appeal against the impugned order (P3), it hasnot been directed to the proper forum under the proper provision of thelaw inasmuch as no proper legally tenable Appeal is pending. InParagraph 11 of the petition, the petitioner had averred that thepetitioner had preferred a Petition of Appeal to the High Court ofAnuradhapura against the impugned order addressed to the Court ofAppeal. The learned Senior State Counsel for the respondents,quoting several case law authorities, had argued that there was noprovision in law for the petitioner to file a second Appeal against thelearned Magistrate's order to the Court of Appeal, but the Appealagainst the impugned High Court order should have been directed tothe Supreme Court section 09 of the High Court of the provinces(Special Provisions) Act No. 19 of 1990, with leave from the High Courtor Special Leave from the Supreme Court.
For the following two-fold reasons this Court is inclined to decidethe issue in favour of the respondents in that the petitioner has failedto satisfy Court that he has pursued an alternative remedy of a legallytenable Appeal before filing this Revision Application.
Firstly, the petitioner had failed to file a copy of this Petition ofAppeal filed in High Court Anuradhapura along with the Petition andAffidavit at the time of filing this revision application, though he had filedsame marked X1 very much later along with his written submissionsfiled on 11.07.2007. Rule 3(1 )(a) and (b) of the Court of Appeal(Appellate Procedure) Rules of 1990 is clear as crystal on this matter.All copies of documents material to the application has to be filed alongwith the petition and affidavit. Where a person is unable to tender anysuch document, he shall state the reason for such inability and seekleave of Court to furnish such document later. This Petition of Appealfiled against the impugned order is a vital document material to theapplication to bolster the Petitioner's position that he has pursued thealternative remedy of Appeal. However, the petitioner has neitherproduced same at the time of filing of the application nor soughtpermission to furnish it later. This is a clear violation of Rule 3(1 )(a) and(b) and therefore the petitioner is precluded from producing thedocument later and using it to support his written submissions.
Secondly, in the 03 Judge Bench Supreme Court decision inWickremasekera v Officer-in-Charge, Police Station, AmparaP) it was
Eiangakoon v Officer-in-Charge, Police Station, Eppawaia
CAand another (Sarath De Abrew J.)^07
held that the Court of Appeal does not have appellate jurisdiction interms of Article 138(1) of the Constitution read with Article 154(6) inrespect of decisions of the Provincial High Court made in the exerciseof its appellate jurisdiction and it is the Supreme Court that has thejurisdiction in respect of appeals from the High Court as set out insection 9 of the High Court of the Provinces (Special Provisions) Act,No. 19 of 1990. Therefore, in the light of the above authority, thepetitioner should have appealed to the Supreme Court under section09 of the Act No. 19 of 1990, and not to the Court of Appeal. Theproposition that Appeals from the High Court exercising appellatejurisdiction should be directed to the Supreme Court and not the Courtof Appeal in further strengthened by the provision in section 5C of HieHigh Court of the Provinces (Special Provisions) Amendment ActNo.54 of 2006 where the Supreme Court is vested with appellatejurisdiction from civil appeals heard by the High Court. Therefore, forthe aforesaid reasons, this Court has to conclude that the petitionerhas failed to satisfy court that he has pursued the alternative remedyof filing a legal Appeal before seeking to invoke the revisionary powersof this Court.
However, it is manifestly clear and well settled law that whether ornot the alternative remedy has been pursued or exhausted revisionwould lie in the following situations.
Presence of profound exceptional circumstances whererevision would lie to avert a miscarriage of Justice.
Presence of an error or illegality on the face of the recordwhich would occasion a failure of Justice.
The legal principle with regard to (a) above is succinctly stated inCamillus Ignatius v OIC Uhana & others where it was held that "thepowers of the Court of Appeal are wide enough to embrace a casewhere an appeal lies but in such a case an application for revisionshould not be entertained save in exceptional circumstances." Theabove principle of law is also contained in the following case lawauthorities.
Eg.(1) M.A. Sirisena v C.C. Richard Arsala & others (supra).
(2) H.S. Wattuhewav S.B. Gurugd9).
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Therefore in processing this application of the petitioner,notwithstanding the fact whether the alternative remedy has beenpursued or not, it is the duty of this Court to examine and verify as tothe presence of such exceptional circumstances before opening thegateway for revision.
Existence of exceptional circumstances is the process by which theCourt should select the cases in respect of which the extraordinarypower of revision should be adopted. This practice has taken deep rootin our law and got cemented into a rule of procedure when dealing withrevision applications. The exceptional circumstances would vary fromcase to case and their degree of exceptionality must be correctlyassessed and gauged by Court taking into consideration allantecedent circumstances using the yardstick whether a failure ofjustice would occur unless revisionary powers are invoked.Exceptional circumstances could broadly be categorized under threelimbs as follows.
Circumstances exceptional in fact bound to lead to amiscarriage of justice.
Circumstances exceptional in law, such as an error or illegalityon the face of the record bound to lead to a failure of Justice.
Circumstances exceptional in both fact and law, which wouldbe a mixture of both (a) and (b) above, having the same result.
In the light of the above findings and observations it is now pertinentto peruse the petition and written submissions of the petitioner in orderto determine whether the petitioner has pleaded or established suchexceptional circumstances. It is abundantly clear that the petitioner hasnot specifically or expressly pleaded such exceptional circumstancesin the body of the petition other than the substantial questions of lawreferred to in paragraph 09 of the Petition in the format of an Appeal.
In Biso Menika v Ranbanda & other^0) and followed by UrbanDevelopment Authority v Ceylon Entertainments Ltd. & another (supra)the rigid rule was formulated that in order to justify the exercise ofrevisionary jurisdiction of the Court of Appeal on examination of eitherthe petition or affidavit must reveal a specific plea as to the existenceof special circumstances. If the above rigid test is to be applied in thiscase, then necessarily ■ the application of the petitioner should bedismissed for want of a specific plea as to the presence of exceptional
CA
Elangakoon v Officer-in-Charge, Police Station, Eppawala and
another (Sarath De Abrew J.)
409
circumstances. However, in Dharmaratne and another v PalmParadise Cabones Ltd. and others (supra) the Supreme Court adopteda much less rigid approach in that it was held that the petitioner shouldplead or establish exceptional circumstances warranting the exerciseof revisionary powers.
Therefore it is now open to this Court to ascertain from a perusal ofthe written submissions filed by the petitioner whether he hassuccessfully established such exceptional circumstances. On aperusal of paragraph 05 B and C of the aforesaid written submissionsit is explicit that the petitioner has based his argument as to thepresence of exceptional circumstances on the bedrock of illegalities onthe face of the record as enumerated in paragraph 05C of theaforesaid written submissions. The crux and thrust of the petitionersargument basically is that a verdict of guilty entered under section 185of the Code of Criminal Procedure Act No. 15 of 1979, is a judgmentor final order contemplated in section 320(1) of the above code againstwhich an appeal lies, and a different interpretation given by the learnedHigh Court Judge of Anuradhapura in her impugned order (P3) wouldamount to an illegality in law which constitute sufficient exceptionalcircumstances to enable the opening of the gateway to the revisionaryremedy.
For the following reasons, this Court is not in a position to agreewith the aforesaid contention of the petitioner.
Section 185 of the Code states as follows:-
"If he finds the accused guilty he shall forthwith record averdict of guilty and pass sentence upon him according to lawand record such sentence”. It is abundantly clear that thefinality of the order does not stop with the recording of averdict of guilty but flows beyond that in the same naturaltransaction to the recording of a sentence, where then only,the entire process would come to a halt and reach finality.
Therefore the judgment or final order appealable under section320(1) of the Code does not encompass an order of verdict of guilty ascontemplated under section 185 of the Code.
In paragraph 05 C (ii) of the written submissions, in interpretingsection 279 of the Code, the petitioner is clearly attempting tomislead Court by suppressing the latter portion of the section
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which Is to his disadvantage. Section 279 reads “The judgmentin every trial under this Code shall be pronounced in open Courtafter the verdict is recorded or save as provided in section 203
at some subsequent timeTherefore the petitioner’s
claim that the fact that the judgment was not pronounced on theday the verdict was recorded in the Magistrate’s Court ofThambuttegama was an illegality is clearly unfounded and is afigment of his imagination. On the contrary, the wording ofsection 27 clearly stipulates that in a case of conviction, thejudgment comprises of the verdict and sentence. Hence theappealable final order or judgment contemplated in section320(1) would necessarily be after the passing of sentence.
Though the petitioner has argued that the learned Magistratehas taken 19 days to pass sentence in contravention of section203 of the Code, section 203 relates to passing of judgment inHigh Court trials and has no relevance at all to the matter inhand which relates to a trial in the Magistrate's Court. Theconduct of the petitioner in making irrelevant and misleadingsubmissions should accrue to his disadvantage.
On a corollary of the above findings it is abundantly dear thatthe word “judgment" contemplated in section 320(1) of the Codeagainst which an appeal lies, consists of the verdict andsentence to make it a final order. This view has been alsoexpressed in U. Tilakaratne v OIC, KekirawaW
The petitioner submitted Forest v Leefd'2) in support of hisargument that the verdict of guilty constituted a final judgmentwhich was appealable under section 320(1) of the Code. In theabove case the learned Magistrate has made an order absoluteunder section 109 of the then Code of Criminal procedure inorder to abate a Public Nuisance. This Order was considered afinal judgment against which an appeal would lie. This casecould be distinguished from the matter in hand where a verdict ofguilty will not reach finality until the sentence is passed. Hencethe petitioner’s argument in this respect is rejected.
Due to the aforesaid findings, this Court has no alternative but toconclude that the petitioner has miserably failed to substantiatepresence of exceptional circumstances by way of illegality or error onthe face of the record, and accordingly his plea for invoking ofdiscretionary revisionary powers of this Court must necessarily fail.
Elangakoon v Officer-in-Charge, Police Station, Eppawala and
another (Sarath De Abrew J,)
411
CA
As the first preliminary objection of the respondent should succeedin view of the above findings, it is purely academic to discuss the 2ndpreliminary objection as to the question of delay. Suffice it to say thatthe impugned order (P3) is dated 16.03.2006 while the petition hasbeen filed on 24.07.2006, entailing an unexplained delay of 04 monthsand 8 days. In the absence of an explanation to the contrary this delaycould be considered unreasonable. The ill-health of the instructingAttorney, as pronounced from the Bar Table, may not be considered asatisfactory explanation as the same Counsel who appeared in thisCourt for the petitioner had also defended his rights -in the High Courtof Anuradhapura.
Therefore, taking into consideration the entirety of the submissionsadduced by both parties, this Court upholds the preliminary objectionraised by the respondents, and for several other reasons set out in thisjudgment, conclude that this is not a fit and proper case to invoke thediscretionary revisionary powers of this Court. Accordingly we dismissthe application of the petitioner. In all the circumstances of this case,we make no order as to costs.
IMAM, J. – I agree.
Application dismissed.