047-SLLR-SLLR-2006-V-1-KUMARASIRI-AND-ANOTHER-vs.-RAJAPAKSE.pdf
CA
Kumarasiri and Another vs.
Rajapakse (Somawansa, J. (P/CA)
359
KUMARASIRI AND ANOTHERVS.RAJAPAKSECOURT OF APPEAL,
SOMAWANSA J (P/CA)
CA 132/04 (REV)
D. C. ANURADHAPURA17801/MJULY 8,2005
Civil Procedure Code, section 754 (2) – Oaths and Affirmation Ordinance,section 12 (3) – Affidavit – Court of Appeal (Appellate Procedure) Rules1990 – Rule 3(1) (a)- Leave to appeal not filed – Revision – Exceptionalcircumstances.
The defendant petitioners sought to revise the order made by the DistrictCourt of Anuradhapura, overruling the objections taken to the acceptanceof the amended plaint.
The plaintiff respondent raised two preliminary objections that (i) theaffidavit filed is defective and (ii) that, the petitioner ought to have come by wayof leave to appeal and not by way of revision.
HELD:
On an examination of the affidavit, it is clear that the jurat therein is notin conformity with the law. It is rather confusing and incorrectly worded;it does not state where the affidavit was affirmed.
Per Somawansa J., (P/CA)
“It is to be seen that, it is the flesh and blood of the affidavit which giveslife to the skeleton in the petition.”
HELD FURTHER;
The defendant Petitioners have also failed to take steps in terms ofthe statutory right given to them before moving in revision, thoughreasons for the delay in filing the revision application are given, no
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explanation as to why they failed to come by way of leave to appeal,which is the statutory right available to them, is given.
Per Somawansa, J (P/CA)
“Order accepting the amended plaint is a matter that can be canvassedin the final appeal and no prejudice is caused, if this court decides notto go into the merits of the application.
APPLICATION in revision from an order of the District Court of Anuradhapura.Cases referred to:
Selliah Marimuttu Vs. Sivapakkiyan -(1986) 1 CALR 264
Halwan and others Vs. Kaleelul Rahuman – (2000 )3 Sri LR 50 at 51
Cur. adv. vult
K. Patabendige for defendant petitioners.
C. Paranagama for plaintiff respondent.
July 08,2005
ANDREW SOMAWANSA, J. (P/CA)This is an application for revision seeking to set aside the order of thelearned District Judge of Anuradhapura dated 12.11.2003 overruling theobjection taken by the defendants – petitioners to the amended plaint andaccepting the same.
Both parties have agreed to resolve the matter by way of writtensubmissions and both parties have tendered their written submissions.
The plaintiff respondent in his objections have taken up two preliminaryobjections to the maintainability of this application in that-
The affidavit filed by the defendants petitioners is defective.
The defendants – petitioners have no right to come to this Court byway of a revision application against the order of the learned DistrictJudge as the stipulated procedure in the Civil Procedure Code is by
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Kumarasiri and Another vs.
Rajapakse (Somawansa, J. (P/CA)
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way of leave to appeal ai*ld no special circumstance pleaded in thepetition.
As for the first objection that the affidavit filed by the defendantspetitioners is defective, I would say there is force in this argument. For onan examination of the affidavit tendered in support of the petition it isclear that the jurat therein is not in conformity with the law. The jurat readsas follows:
“Having read and explained to us and having understood the impotenceif the foregoing facts and affirming to the veracity thereof placed oursignatures on this 21 st day of January 2004”.
As it can be seen the jurat itself is rather confusing and incorrectlyworded. On the other hand, it does not state where the affidavit wasaffirmed and thus violate the provisions contained in Section 12 (3) of theOaths and Affirmation Ordinance. The affidavit in question has beenaffirmed before B. R. K. Patabandige, attorney – at – law and Commissionerfor Oaths. It is useful to consider at this point Section 12 (3) of the Oathsand Affirmations Ordinance which reads as follows:
“Every Commissioner before whom any oath or affirmation isadministered, or before whom any affidavit is taken under this Ordinance,shall state truly in the jurat or attestation at what place and on what datethe same was administered or taken, and shall initial all alterations,arrears, and interlineations appearing on the face thereof and made beforethe same was so administrated or taken”.
Thus it could be seen that the jurat in question is certainly not inconformity with the aforesaid provisions of the Oaths and AffirmationsOrdinance for it does not state at what place it was administered andcannot be accepted as a valid affidavit in law.
Court of Appeal Appellate Procedure Rules provides for the manner inwhich an application to Court of Appeal should be made. The relevantCourt of Appeal (Appellate Procedure) Rules 1990 reads as follows:
“Rule 3 (1) (a) “Every application made to the Court of Appeal for theexercise of the powers vested in the Court of Appeal by Articles 140 or
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141 of the Constitution shall be by way of petition, together with an affidavitin support of the averments therein, and shall be accompanied by theoriginals of documents material to such application (or duly certifiedcopies thereof) in the form of exhibits. Where a petitioner is unable totender any such document, he shall state the reason for such inabililityand seek the leave of the Court to furnish such document later. Where apetitioner fails to comply with the provisions of this rule the Court may,ex-mero motu or at the instance of any party, dismiss such application.
(b) Every application by way of revision or restitution in integrum underArticle 138 of the Constitution shall be made in like manner together withcopies of the relevant proceedings (including pleadings and documentsproduced), in the Court of First Instance, tribunal or other institution towhich such application relates.”
It is to be seen that it is the flesh and blood of the affidavit which giveslife to the skeleton in the petition. In the absence of a valid affidavitsupporting the averments in the petition, the petition becomes a nullity. Inthe instant revision application the petition becomes a nullity for the affidavitfiled in support of the revision application is a defective affidavit whichdoes not bear any evidentiary value.
It must be stated that there is a line of thinking that the defect in theaffidavit could be cured. However in the instant application objection hadbeen taken in the objections filed by the plaintiff – respondent to themaintainability of this application in view of the defective affidavit. The sameobjection has been reiterated in the written submission of the plaintiff -respondent. However up to date the defendants petitioners have not takenany steps to cure the defect and the defendants – petitioners must sufferthe consequences.
Considering the aforesaid second objection it is clear that the impugnedorder dated 12.11.2003 which is being canvassed in the instant revisionapplication is only an incidental order falling within the ambit of Section754 (2) of the Civil Procedure Code.
Section 754 (2) of the Civil Procedure Code reads as follows:
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Kumarasiri and Another vs.
Rajapakse (Somawansa, J. (P/CA)
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“Any person who shall be dissatisfied with any order made by anyoriginal court in the course of any civil action, proceeding, or matter towhich he is or seeks to be a party, may prefer an appeal to the Court ofAppeal against such order for the correction of any error in fact or in law,with the leave of the Court of Appeal first had and obtained".
In the circumstances as pointed out by the counsel for the plaintiff -respondent the defendants – petitioners also have failed to take steps interms of the statutory right given to them before moving in revision. It wasincumbent on the defendants petitioner to follow the procedure laiddown in Section 754(2) before moving the matter in revision application,but does not given any explanation as to why they failed to come by wayof leave to appeal which is the statutory right available to them. Anapplication for revision is available where the failure to exercises the rightof appeal is explained to the satisfaction of the Court.
Selliah MarimutturVs. Sivapakkiyani1)
(2)
In the case of Halwan and Others Vs Kaleelul Rahuman at 51 S. N.Silva, J as he then was observed:
“A party dissatisfied with a judgment or order, where a right of appeal isgiven either directly or with leave obtained has to invoke and pursue theappellate jurisdiction. When such a party seeks judicial review by way ofan application for a writ, he has to establish an excuse for his failure toinvoke and pursue the appellate jurisdiction. Such excuse should bepleaded in the petition seeking judicial review and be supported byaffidavits and necessary documents. The same principle is applicable toinstances where the law provides for a right of appeal from a decision ororder of an institution or an officer, to a statutory tribunal. The reason isthat such appellate procedure as established by law being the ordinaryprocedure should be availed of before recourse is had to the extraordinaryjurisdiction by way of judicial review as provided in Article 140 of theConstitution”.
Even to file this revision application, it appears that the defendants -petitioners have taken over two months from the date of the order. As perparagraph 16 of the petition the delay had been due to the delay in obtainingcertified copies and consulting lawyers in Colombo.
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In any event, the question of correctness of the learned District Judge'sorder in accepting the amended plaint is a matter that can be canvassedin the final appeal and no prejudice would be caused to the defendants -petitioners if this Court decides not to go into the merits of the applicationand I must say I do not intend to do so.
For the foregoing reasons the revision application will stand dismissed.In all the circumstances of the case, I make no order as to costs.
Application dismissed.