JAYASEKERA vs. LAKMINI AND OTHERS

004-SLLR-SLLR-2010-V-1-JAYASEKERA-vs.-LAKMINI-AND-OTHERS.pdf


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JAYASEKERA VS. LAKMINI AND OTHERSSUPREME COURTJ. A. N. DE SILVA C.J.
MARSOOF, J.
CHANDRA EKANAYAKE, J.
SC 15/2009
SC HC (CALA) 29/09
WPHCCA/ KALUTARA 101/2003
DC PANADURA 745/P
APRIL 30, 2009
JUNE 5, 2009
JUNE 10, 2010
Civil Procedure Code – Section 755 (1) Section 755 of (2) (a) – 2b -Section 758 (1), Section 759 (2) Section 770 – Complying mandatory?-All necessary parties to be made parties in the appeal? – Partition Act21 of 1977 – Section 67 – Failure to complete required steps – Fatal?Prejudice caused? Can Appellate Court add a respondent as a party? -Discretion?*
The 4th defendant-appellant failed to name the 1** and 2nd defendantsin the District Court in the partition action as the respondents in theappeal – only the plaintiff was made a party. On the objection raisedby the plaintiff-appellant that the appeal is not property constitutedthe High Court overruled the objection stating that, all necessaryparties had been noticed by the 4th defendant-appellant in compliancewith Section 755 and fixed the case for argument.
The plaintiff-respondent sought leave to appeal from the said order andleave was granted.
Held
An appeal lodged against the judgment/decree made or entered byCourt in a partition action all the provisions of the Civil procedureCode shall apply.
The issue at hand falls within the purview of a mistake, omis-sion or defect on the part of the appellant in complying with the
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provisions of Section 755. In such a situation if the Court ofAppeal was of the opinion that the respondent has not beenmaterially prejudiced, it was empowered to grant relief to theappellant on such terms as it deemed just.
The power of the Court to grant relief under section 759 (2) iswide and discretionary and is subject to such terms as the Courtmay deem just. Relief may be granted even if no excuse for noncompliance is forthcoming – relief cannot be granted if the Court isof the opinion that the respondent has been materially prejudicedin which event the appeal has to be dismissed.
Per Chandra Ekanayake, J.
“In the case at hand the notice of appeal had been filed by theregistered attomey-at-law and the failure to comply withSection 755 appears to be a negligence on his part – such negligencethough relevant does not fetter the discretion of Court to grantrelief when it appears that it is just and fair to do so” – what isrequired to bar relief under Section 759 (2) is not any prejudicebut material prejudice -1 am inclined to the view that the plaintiffbeing the only respondent named in the notice of appeal wouldnot be materially prejudiced by the grant of relief under Section759 (2)
Held further
Section 770 shows that if it appears to the Court at the hearing ofthe appeal that any person who was a party to the action in theCourt against whose decree the appeal, is made but who has notbeen made a party to the appeal, it is within the discretion of thecourt to issue the requisite notice of appeal on those parties forservice.
If a particular party in a partition action who should have beenmade a respondent is not made a respondent in the appeal,then granting relief to the appellant will not help such a party tosafeguard his rights and making him a respondent would notact to the prejudice of the appellant. A discretion necessarily in-vokes an attitude of individual choice, according to the particularcircumstances, and differs from a case where the decision followexdibito juctitiae, once the facts are ascertained. The exercise ofthe discretion contemplated in Section 770 is a matter for thedecision of the Judge who hears the appeal.
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Jayasekera vs. Lakmini and others
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APPEAL from an order of the High Court of Kalutara on a preliminaryissue.
Cases referred to
Kiri Mudiyanse and others vs. Bandara Menike – 1974 76 NLR371
Nanayakkara vs. Wamakulasuriya – 1993 – 2 Sri LR 289
Keerthisiri vs. Weemsena – 1997 – 1 SLR 70
Dias vs. Arnolis- 17 NLR 289
Ibrahim vs. Beebe – 19 NLR 289
Evans vs. Bartlam – 1937 – 2 AER 646 at 655
Gardiner vs. Jay – 1885 Ch.D. 50
Hope vs. Great Western Railway Company -1937 1AU ER 625
Jerkins vs. Bushby – [1891] 1. Ch. 483
Manohara de Silva PC with Arinda Wijesundera and G. IV. C. BandaraThalagune for plaintiff-respondent-appellant.
UdithaEgalahewawith AmaranathFemando for ^defendant-appellant-respondent.
October 10th, 2010CHANDRA EKANAYAKE, J.
The plaintiff-respondent-petitioner (hereinafter sometimesreferred to as the plaintiff) by her petition dated 25.02.2009has sought inter alia, special leave to appeal to this Courtfrom the order of the learned Judges of the High Court of CivilAppeal of the Western Province (Holder in Kalutara) dated15.01.2009 marked “E”, to uphold the preliminary objectionsraised on her behalf and to dismiss the appeal filed by the4th defendant-appellant-respondent (hereinafter sometimesreferred to as the 4th defendant). When the above applicationwas supported this Court by its order dated 19.03.2009 hadgranted special leave to appeal on the questions of law set
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out in sub paragraphs (a) to (g) of paragraph 9 of the said
petition. Those sub paragraphs are reproduced below:
The said order is contrary to law and against the weight ofthe evidence,
The learned Judges of the High Court erred in holdingthat “all necessary parties have been noticed" by the 4thdefendant appellant,
The learned Judges of the High Court failed to take in toconsideration that only the plaintiff has been named asrespondent in the notice of appeal, and only the plaintiffand the 1st defendant are named as respondents in thePetition of Appeal,
The learned Judges of the High Court failed to take intoconsideration that the bond furnished by the appellantonly covers the cost of the plaintiff-respondent and doesnot cover the cost of the 1st, 2nd, and 3rd respondents andthat the appellant has failed to obtain an acknowledge-ment or waiver of security from the said 1st, 2nd and 3rdrespondents as required by Section 755 (2) (a) of the CivilProcedure Code as amended by Act No. 79/1988.
The learned Judges of the High Court failed to take into consideration that the appellant had failed to serve acopy of the notice of appeal on all the respondents and tofurnish proof of service as required by Section 755(2) (a) ofthe Civil Procedure Code.
The learned Judges of the High Court erred by consideringthat “the 1st and 2nd defendants both have tendered oneproxy and not tendered a statement of claim” (which factonly establishes that the 1st and 2nd defendants did notdispute the plaintiffs claim in the District Court) and
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thereby concluding that the 1st and 2nd defendantswould not be contesting the appeal of the 4th defendant-appellant.
The learned Judges of the High Court erred by holdingthat “in the instant case only the plaintiff and 3rd and 4thdefendants remain as disputed parties” as in the event theDistrict Court judgment is set aside -or varied in anymanner, the rights of the 1st and 2nd defendants who havenot been given an opportunity to be heard before the HighCourt, would be prejudiced.
According to Section 5C (1) of the said Act No. 54 of 2006an appeal shall lie directly to the Supreme Court from anyjudgment, decree or order pronounced or entered by a HighCourt established by Article 154 P of the constitution, withleave of the Supreme Court first had and obtained. But in thepresent case the plaintiff-respondent-petitioner (hereinafterreferred to as the plaintiff) by petition dated 25-02-2009 hassought special leave.
At the hearing of the appeal before this Court the Counselfor the plaintiff vehemently stressed on the preliminaryobjection raised in the High Court on 25.08.2008 by theplaintiff which had been to the following effect – (vide pg – 4of the written submissions of the plaintiff filed in this Courton 30.04.2009):
“that the 4th defendant-appellant-respondent had failedto comply with the mandatory provisions of Sections 755 (1),755 (2) (a), 755 (2) (b) and 758 (1) by
failing to name the parties to the action,
failing to name all the respondents to the action,
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failing to give required notices of this appeal to the 1st, 2ndand 3rd defendants, and to submit proof thereof.
failure to provide security of the 1st, 2nd and 3rd defendantscosts of appeal?
With regard to (c) and (d) above it has to be noted that 3rddefendant had died before the delivery of the judgment by theDistrict Judge.
In addition to the oral submissions made here plaintiff-respondent-petitioner and 4thdefendant-appellant-respondenthave filed their written submissions also. The appealpreferred by the 4th defendant was one against the judgmentpronounced by District Judge of Panadura in case bearingNo. 745/ Partition – instituted against the Is* to 4th defen-dants, to partition the land morefully described in the amend-ed plaint filed in the said partition case. The Learned HighCourt Judges by their judgment dated 15.01.2009 had con-cluded that all necessary parties had been noticed by the 4thdefendant-appellant-respondent in compliance with theprovisions of Section 755 of the Civil Procedure Code andproceeded to fix the case for argument after overruling theaforementioned preliminary objection raised by the plaintiffwith regard to the maintainability of the appeal in the HighCourt.
However, perusal of the notice of appeal (Cl) filed in theDistrict Court makes it clear that only following particularswere included under items (3) and (5) thereof:-
Under item (3) i. e. – Names and Only plaintiffs
addressesand 4th defendant’s
of the partiesnames and addresses
given.
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Under item (5) i. e. Name of the Only plaintiff’s name andrespondent address given.
What needs to be examined now is whether the finding ofthe learned High Court Judge viz- ‘all necessary parties werenoticed in compliance with Section 755 of the Civil ProcedureCode’ – is correct?
To examine same one should first consider theprocedure that has to be followed when preferring an appealagainst an interlocutory decree or judgment entered in apartition action. It is undisputed that the appeal in hand is anappeal preferred from the judgment of the District Court. NowSection 67 of the Partition Act No. 21 of 1977 (as amended)would become relevant. The said section thus reads asfollows:
67. “An appeal shall lie to the Supreme Court against anyjudgment, decree or order made or entered by any courtin any partition action; and all the provisions of the CivilProcedure Code shall apply accordingly to any suchappeal as though a judgment, decree or order made orentered in a partition action were a judgment, decree ororder made or entered in any action as defined for thepurposes of that Code. ”
A plain reading of the above section would make it amplyclear that in an appeal lodged against the judgment /decreemade or entered by Court in a partition action – all theprovisions of the Civil Procedure Code shall apply. This rendersthe entire chapter in the Civil Procedure Code pertainingto appeals namely – Chapter LVIII applicable to an appealpreferred from a judgment entered in a partition action also.
The relevant Section in the Civil Procedure Code withregard to ‘Notice of Appeal’ – appears to be Section 755.
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As the requisites of notice of appeal are embodied insub-paragraph (i) of Section 755 same is reproduced below:
755(1) ’ Every notice of appeal shall be distinctly writtenon good and suitable paper and shall be signed by theappellant or his registered attorney and shall be dulystamped. Such notice shall also contain the followingparticulars:
the name of the court from which the appeal ispreferred;
the number of the action;
the names and addresses of the parties to the action;
the names of the appellant and respondent;
Provided that where the appeal is lodged by the Attorney-General, no such stamps shall be necessary. *
Further Section 755(2) of the Civil Procedure Codeis clear enough as to what should accompany a notice ofappeal – namely security for a respondent’s costs of appealin such amount and nature as is prescribed in the rulesenacted under Article 136 of the Constitution, or acknowl-edgement or waiver of security signed by the respondent or hisregistered attorney. Sub Section 755 (2) (a) and 2 (b) thusread as follows:
755 (2) “The notice of appeal shall be accompanied by –
except as proinded herein, security for respondent’scosts of appeal in such amount and nature as isprescribed in the rules made by the Supreme Courtunder Article 136 of the Constitution, or acknowledge-
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merit or waiver of security signed by the respondentor his registered attorney; and
Proof of service, on the respondent or on the hisregistered attorney, of copy of the notice of appeal, inthe form of a written acknowledgement of the receiptof such notice or the registered postal receipt in proofof such service. ”
Examination of the security bond in this case (02)amply demonstrates that it only covers the cost of the plaintiff-respondent and it does not cover the costs of 1st and 2nddefendant-respondents and it accompanied the proof ofservice only on the plaintiff. Therefore it has to be observedthat the security bond C2 is not in compliance with theprovisions of sections 755 (2) (a) and 755 (2) (b).
The contention of the Counsel for the plaintiff was thatwhen it comes to statutes of procedure, failure to completerequired steps within the specified time frame, is fatal to thecase and thus the preliminary objection should have beenupheld by the Learned Judges of the High Court due to non-compliance of the provisions of Section 755 (1), 755(2)(a) and755(2)(b) which had to be complied with when the notice ofappeal was tendered and that was within 14 days from thejudgment.
The main submission of the 4th defendant-appellant-respondent’s Counsel was that – no prejudice was causedto the 2nd defendant-respondent-respondent by not makingher a party and further this Court has the power to addthe 2nd defendant as a party to the said appeal. This meritscareful consideration in the light of the circumstance of thiscase. It is to be noted that the following matters were not indispute:-
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plaintiff had instituted this partition action naming 1 to 4defendants as the defendants in the case,
the 3rd defendant who had passed title to the 4th defen-dant reserving life interest had died on 29.03.2003.
by the judgment of the learned District Judge dated21.07.2003 pronounced after trial, only the plaintiff, 1stdefendant and 2nd defendant (who got only life interestof the share allocated to the 1st defendant) were givenshares,
as per the notice of appeal filed by the 4th defendant (Cl)only the plaintiff had been named as a party (naminghim as a respondent) but not the 1st and 2nd defendants,
failure to give required notice of the appeal to the 1st and2nd defendants,
failure to provide security for the costs of appeal of the Is*and 2nd defendants.
From the above it is manifestly clear that although shareswere given to the plaintiff, 1st defendant and 2nd defendant(to whom life interest of 1st defendant’s share was given bythe judgment) none of them were made respondents to theappeal or given notice, and failed to provide security for thecosts of appeal of 1st and 2nd defendants. Even in the petitionof appeal dated 02.09.2003 (C3) only the plaintiff and the1st defendant were named as respondents and as such thepetition of appeal too is not in conformity with the provi-sions of Section 758 (1) of the Civil Procedure Code. Thus thequestions of law on which special leave was grated by thisCourt are answered in the affirmative and the impugnedjudgment of the High Court is hereby set aside.
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The 4th defendant’s position is that the failure to makethe 2nd defendant a party to the appeal and non-complianceof the provisions of Section 755 of the Civil Procedure Codehas not caused any prejudice to the plaintiff-appellant. TheLearned Counsel for the 4th defendant-appellant-respondenthas submitted that Court has the power even at this stageto add the 2nd defendant as a party to the appeal. For thissubmission he has relied on the principle of law enunciatedin the decision in Kiri Mudiyanse and another vs. BandaraMenikePK
This leads me to the next point viz – *would it be correctto say that failure on the part of the 4th defendant to complywith the requirements of Section 755 has not caused anyprejudice to the other parties to the main partition case?’ Thegist of the submission of the Counsel for the plaintiff was thatas it is mandatory to comply with steps that need to be takenduring a permitted period of time and as the 4th defendanthas failed to comply with the same, the preliminary objectionraised in the High Court should have been upheld and theappeal was liable to be dismissed there. Further he has urgedthat since the 4th defendant has failed to move Court for re-lief under Section 759 of the Civil Procedure Code grantingrelief under said section (S. 759) does not arise. I am unableto agree with the said submission for the reason that it isundoubtedly incumbent upon the Court to utilize the statutoryprovisions and grant the relief embodied therein if it appearsto Court that it is just and fair to do so. In this backgroundSection 759 (2) of the Civil Procedure Code [which is similarto former section – 756 (3) of the old Civil Procedure Code]has to be considered. Section 759 (2) thus reads as follows:
“In the case of any mistake, omission or defect on the part
of any appellant in complying with the provisions of the
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foregoing sections, (other than a provision specifying theperiod within which any act or thing is to be done) theCourt of Appeal may, it if should be of opinion that therespondent has not been materially prejudiced, grant re-lief on such terms as may deem just.”
The issue at hand clearly falls within the purview ofa mistake, omission or defect on the part of the appellant(i. e. – 4th defendant) in complying with the provisions ofSection 755 when filing the notice of appeal. In such asituation if the Court of Appeal was of the opinion thatthe respondent has not been materially prejudiced, it wasempowered to grant relief to the appellant on such terms as itdeemed just. A plain reading of the said subsection (2) makesit clear that the power of Court to grant relief under the sameis discretionary. In this regard the decision of the SupremeCourt in Nanayakkara vs. Wamakulasuriycf21 would lendassistance. In the said case per Kulatunga, J.
“The power of the Court to grant relied under Section759(2) of the Code is wide and discretionary and issubject to such terms as the Court may deem just. Reliefmay be granted even if no excuse for non-complianceis forthcoming. However, relief cannot be granted ifthe Court is of opinion that the respondent has beenmaterially prejudiced which event the appeal has to bedismissed.”
In the course of the judgment in the said case (at 293)Kulatuga, J. had further observed that:-
“In an application for relief under section 759 (2), therule that the negligence of the Attomey-at-Law is thenegligence of the client does not apply as in the case ofdefaults curable under sections 86(2), 87(3) and 77 of the
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Civil Procedure Code. Such negligence maybe relevant, itdoes not fetter the discretion of the Court to grant reliefwhere it is just and fair to do so.”
It was a case where the failure to hypothecate the sumdeposited as security by bond as required by section 757 (1)was considered by Court. In the case at hand also the noticeof appeal (Cl) had been filed by registered attorney-at-law andthe failure to comply with the provisions of section 755 asalready concluded above appears to be a negligence on hispart. In view of the above principle of law I hold that such anegligence though relevant does not fetter the discretion ofcourt to grant relief when it appears that it is just and fair todo so.
Further in this regard it would be pertinent to considerthe pronouncement made by the Supreme Court in the caseof Keerthisiri vs Weerasend3) This too was an instance wherenon compliance of section 755(1) of the Civil Procedure Code(failure to duly stamp the notice of appeal) arose and grantingrelief under section 759 (2) of the Code was considered. In theabove case it was held by G P S de Silva, CJ (with Kulatunga,J. and Ramanathan, J. agreeing) that:
“Section 759(2) of the Civil Procedure Code whichrequired the Notice of Appeal to be ‘duly stamped’ isimperative. However, the Court of Appeal has jurisdictionto grant relief to the appellant in terms of Section 759(2)of the Code in respect of the ‘mistake’ or ‘omission’ insupplying the required stamp fee.”
Further, G P S de Silva, CJ. In the course of the said judg-ment has observed that “what is required to bar relief underSection 759 (2) is not any prejudice but “material prejudice”.Per G P S de Silva, CJ at 74:
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“What is required to bar relief is not any prejudice butmaterial prejudice, i. e. detriment of the kind which therespondent cannot reasonably called upon to suffer. Inthis instant case there is nothing to suggest that therespondent has been materially prejudiced. I accordinglyhold that the Court of Appeal had jurisdiction to grantrelief in terms of section 759(2) of the present Code.”
Having considered all the facts and circumstances of thepresent case I am inclined to the view that the plaintiff, beingthe only respondent named in the notice of appeal, would notbe materially prejudiced by the grant of relief under Section759 (2)
It is clearly seen that persons who were parties to theaction in the Court against whose decree the appeal ismade (namely – the District Court) have not been madeparties in the High Court of Civil Appeal. As such although theimpugned judgment of the High Court has been alreadyset aside, I am of the view that Section 770 of the CivilProcedure Code is more to the point. The aforesaid sectionthus reads as follows:-
770 “If, at the hearing of the appeal, the respondentis not present and the court is not satisfied upon thematerial in the record or upon other evidence thatthe notice of appeal was duly served upon him or hisregistered attorney as herein before provided, or if itappears to the court at such hearing that anu personwho was a oartu to the action in the court against whosedecree the appeal is made, but who has not been made apart to the appeal, the court mau issue the requisite noticeof appeal for sendee.”
The above section shows that if it appears to the Courtat the hearing of the appeal that any person who was a party
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to the action in the Court against whose decree the appealis made but who has not been made a party to the appeal,it is within the discretion of the Court to issue the requisitenotice of appeal on those parties for service. In the case athand too the 4th defendant-appellant respondent had failed toname the 1st and 2nd defendants to the District Court case asrespondents in the appeal. The 2nd defendant was madeentitled only to the life interest of the 1st defendant. Theimpugned judgment of the learned District Judge (dated21.07.2003) also reveals that the 4th defendant was givenrights subject to the life interest of the 3rd defendant. Butthe 3rd defendant had died on 29.3.2003. So the question ofadding the 3rd defendant as a respondent to the appeal doesnot arise.
At this juncture it would become pertinent to considerwhether the 1st and 2nd defendants would be prejudiciallyaffected if the 4th defendant appellant succeeds in the appeal.When considering this, the pronouncement of the SupremeCourt in Kiri Mudiyanse & another vs Bandara Menike (Supra)would be of importance. Being a partition suit the main issuein the said case was also a preliminary objection raised by theplaintiff that the appeal was not properly constituted becausesome parties who were allocated shares in the judgment werenot made party respondents to the appeal. In the above casehaving discussed the pronouncements in the previous twoFull Bench decisions, namely, Dias vs Amolisl41 and Ibrahimvs Beebe*5) it was that:
“The Supreme Court had the discretionary power undersection 770 of the Civil Procedure Code to direct the 1stto the 3rd and the 6th to the 8th defendants to be added asrespondents. The exercise of the discretion contem-plated in section 770 is a matter for the decision of
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the Judge who hears the appeal in the particular case.Furthermore, it should be exercised when some goodreason or cause is given for the non-joinder. The discretionwhich is an unfettered one must, of course, be exercisedjudicially and not arbitrarily and capriciously.”
It is evident from the points of content raised at thetrial by the parties that the plaintiff had relied on the title bydeeds and prescription as averred in the amended plaint and3rd and 4th defendants too had claimed the share on deeds andprescription. Further according to the judgement buildingsmarked as A, B and C have been given according to soilrights and improvements D and E given to the 3rd defendantwithout any soil rights in the corpus. Even the plantationhad been given according to soil rights. In view of the aboveI am inclined to conclude that in the present case if theappeal preferred against the judgement pronounced in thepartition case is ultimately allowed, the 1st, and 2nd defen-dants’ rights also would be prejudicially affected. Furtherin the aforementioned Kiri Mudiyanse’s case (Supra) at 375Pathirana J. goes onto say this:
“Intrinsically there is nothing in Section 770 eitherexpressly or by necessary implication to inhibit thediscretion to the principles that have been set out inthe case of Ibrahim v. Beebee as (Supra) to do so will betantamount to saying that the exercise of the discretionis cribbed, cabined and confined exclusively to theseprinciples, limiting the exercise of the discretion in aparticular way, and thereby putting an end to the discre-tion itself. In this connection I would quote the observa-tions made by Lord Wright in Evans v. Bartlam161 at 655:
“To quote again from Bowen L. J., in Gardner v. Jay,,7)at 58;
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“When a tribunal is invested by Act of Parliament or byrules with a discretion without any indication in the Actor rules of the grounds upon which the discretion is tobe exercised, it is a mistake to lay down any rules witha view of indicating the particular grooves in which thediscretion should run, for if the Act or the rules did notfetter the discretion of the judge why should the Courtdo so?
Similarly, it has been held by the Court of Appeal, inHope v. Great Western Railway Companif^, that thediscretion to grant or refuse a Jury in King’s Bench casesis in truth, as it is in terms, unfettered. It is, however,often convenient in practices to lay down, not rules oflaw, but some general indications, to help the Court inexercising the discretion, though in matters of discretionon one case can be an authority for another. As Kay,L. J., said in Jenkins v. Bushbi/9) at 495: the Courtcannot be bound by a previous decision, to exercise itsdiscretion in a particular way, because that would be ineffect putting an end to the discretion.
A discretion necessarily involved a latitude of individualchoice, according to the particular circumstances, anddiffers from a case where the decision follows ex debitojustitiae, once the facts are ascertained.”
When a discretion necessarily involves a range ofindividual choice the manner in which it has to be exercisedwould depend on facts and circumstances of each case. Onthe other hand it is needless to stress that the discretiongiven under Section 770 is a very wide one and same has tobe exercised cautiously which being a power expressly andplainly conferred on the Judge who hears the appeal.
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On the other hand if a particular party in a partitioncase who should have been made a respondent is not made arespondent in the appeal, then granting relief to the appellant(in this case to the 4th defendant) will not help such a party tosafeguard his rights and making him a respondent would notact to the prejudice of the appellant. For the above reasonsI conclude that 1st and 2nd defendants named in the DistrictCourt case should be added as respondents to the appealpending in the High Court.
In view of the above necessity has now arisen to considerwhich Court should exercise this power given by Section 770of the Civil Procedure Code. The impugned judgment of theHigh Court is already set aside. Perusal of the above sectionshows that ‘if at the hearing of the appeal, if it appears toCourt at such hearing that any person who was a party to theaction in the Court against whose decree the appeal is made,but who has not been made a party to the appeal, the Courthas the discretion to issue the requisite notice of appeal forservice. In the case at hand the appeal had been taken upfor hearing in the High Court of Civil Appeal (although itwas originally pending before the Court of Appeal) under theprovisions of High Court of the Provinces (Special Provisions)- Amendment – Act No. 54/2006. Thus it becomes clear thatit is the High Court of Civil Appeal that has to exercise thispower now and, I direct the High Court in terms of Section770 of the Civil Procedure Code that 1st and 2nd defendants inthe District Court case (also named as 1st and 2nd defendant -respondent – respondents in the caption to the presentpetition) be made respondents to the appeal preferred by the4th defendant and to issue the requisite notices of appeal onthem.
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The Learned Judges of the High Court of Civil Appealare further directed to take such other appropriate stepsunder the Civil Procedure Code and to conclude the appealexpeditiously. The plaintiff – respondent – appellant willhowever, be entitled to Rs. 15,000/- as costs payable by the4th defendant-appellant – respondent.
J. A. N. DE SILVA, C. J. – I agree.MARSOOF P C, J. – I agree.Appeal allowed.
Directions given to High Court.