030-SLLR-SLLR-2005-V-3-LEELAWATHIE-vs.-EKANAYAKE.pdf
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LEELAWATHIEVS.EKANAYAKECOURT OF APPEALSOMAWANSA, J. (P/CA) ANDWIMALACHANDRA, J,
CALA 374/2004.
DC COLOMBO 15179/L.SEPTEMBER 21,2005.
Civil Procedure Code, sections 82(2), 88(1), 88(2), 752, 754(2), and 754 (5) ■Vacating previous order of dismissal of plaintiff’s action for non appearance -Restoring the case back to the trial roll – Right to a direct appeal or leave toappeal? – What is a judgment?-What is an Order?.
Held:Section 88(1) lays down that no appeal shall lie against any judgmententered upon default, and order setting aside or refusing to set asidethe judgment entered upon default shall be accompanied by a judgmentadjudicating upon the facts and specifying the grounds upon which it ismade.
The statute states that the order shall be accompanied by a judgmentadjudicating on the facts; it is a judgment as defined in section 754(5)and a direct appeal lies from the said final order.
APPLICATION for leave to appeal from an order of the District Court ofColombo.
Cases referred to:Siriwardane vs. Air Lanka Ltd (1984) SLR 286
Salaman vs. Warner (1891) QB 734
2- CM 7220
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(2005) 3 Sri L ft
Bonzon vs. Altrichan Urban Development Council (1903) KB 547 at549
A. S. Sangarapillai and Brothers vs. Kathiravelu – 2 Sri Kantha LawReports – 99
Wijenayake Vis. Wijesinghe – Sri Kantha Law Reports 28
D. Alwis for respondent – petitioner,
S. A. D. S. Suraweera for plaintiff-respondent.
Cur. adv.vult.
December 09, 2005
Andrew Somawansa, J. (P/CA)
This is an application for leave to appeal from the order of the learnedDistrict Judge of Colombo dated 10.09.2004 vacating the previous orderof dismissal of the plaintiff – petitioner – respondent’s action for nonappearance and restoring the case back to the trial roll and if leave isgranted to quash and set aside the aforesaid order dated 10.09.2004 anddismiss the plaint of the plaintiff-petitioner-respondent.
When this application was taken up for hearing counsel for the plaintiffpetitioner-respondent (hereinafter called the respondent) took up apreliminary objection to the maintainability of this application for the reasonthat the impugned order gives the right to a direct appeal and not anapplication for leave to appeal.
Both counsel agreed to tender written submissions on the aforesaidpreliminary objection taken by Counsel for the respondent and accordinglyboth parties have tendered their written submissions.
Counsel for the defendant – respondent – petitioner (hereinafter calledthe petitioner) submits that section 82(2) of the Civil Procedure Codestates that an order in terms of the said section shall be liable to anappeal to the Court of Appeal. However the said section does not specifywhether leave of the Court of Appeal should be first had and obtained withregard to such an appeal. He submits that when one examines theprovisions of sections 754 (1) and 754(2) of the Civil Procedure Code, it isclear that a leave to appeal application is instituted against an order madein the course of any civil action as opposed to a final appeal which as the
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word “final” itself indicates is instituted against a judgment finallyadjudicating the rights of parties. Thus as in the iristant action when anorder made under section 82(2) sets aside the judgment made in defaultand refixes the case for trial the said order quite obviously does not finallyadjudicate the rights of parties but leaves the rights of parties to be decidedby way of further trial. For this proposition of law he cites several authoritiesboth local as well as foreign decisions.
The local case cited was the Supreme Court decision in Siriwardena
vs. Air Lankd'K
“To decide whether a party dissatisfied with the order of a civil courtshould lodge a direct appeal under section 754(1) of the Civil ProcedureCode or appeal with the leave of Court first had and obtained undersection 754(2) of the Civil Procedure Code the definitions of ‘judgment’and ‘order’ in section 754(5)’ should be applied.
In view of the definition in section 754(5) of the Civil Procedure Codethe procedure of direct appeal is available to a party dissatisfied not onlywith a judgment entered in terms of section 184 of the Civil ProcedureCode but also with an order having the effect of a final judgment, that is afinal order. Orders which are not judgments under section 184 of the CivilProcedure Code or final orders are interlocutory orders from which a partydissatisfied can appeal but only with leave to appeal.
The tests to be applied to determine whether an order has the effect ofa final judgment and so qualifies as a judgment under section 754(5) of theCivil Procedure Code are —
It must be an order finally disposing of the rights of the parties.
The order cannot be treated as a final order, if the suit or the actionis still left alive for the purpose of determining the rights and labilitiesof the parties in the ordinary way.
The finality of the order must be determined in relation to the suit.
The mere fact that a cardinal point in the suit has been decided oreven a vital and important issue determined in the case, is not enoughto make an order a final one.”
Counsel for the petitioner also has cited Privy Council decision in thecase of Salaman vs Warner(2).
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“I think that a judgment or order will be final within the meaning of therule when whichever way it went it would finally determine the rights of theparties. On the other hand if the decision if given in one way will finallydispose of the matter in dispute but if given in the other will allow theaction to go on then I think it is not final but interlocutory”.
A similar view been expressed by Lord Alverstone, CJ in the caseBorzorms. Altricham Urban District Council at 549.
However I am not impressed with the aforesaid submission for the reasonthat provisions contained in section 88(2) clearly indicates that what iscontemplated therein is not a interlocutory order but a judgment adjudicatedupon the facts and specifying the ground upon which it is made. It is fromthis judgment that an appeal lies to the Court of Appeal.
Section 88(1) and (2) of the Civil Procedure Code reads as follows:
“88(1) No appeal shall lie against any judgment entered upon default".
The order setting aside or refusing to set aside the judgmententered upon default shall be accompanied by a judgment adjudicatingupon the facts and specifying the grounds upon which it is made, andshall be liable to an appeal to the Court of Appeal”.
At this point it would be pertinent to consider section 754(a) (2) and (5)of the Civil Procedure Code which reads as follows:
“ 754(1) Any person who shall be dissatisfied with any judgmentpronounced by any original court in any civil action, proceeding ormatter to which he is a party may prefer an appeal to the Court ofAppeal against such judgment for any error in fact or in law.
Any person who shall be dissatisfied with any order made in 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 inlaw, with the leave of the Court of Appeal first had and obtained.
Notwithstanding anything to the contrary in this Ordinance, forthe purpose of this Chapter –
“judgment” means any judgment or order having the effect of a finaljudgment made by any civil court; and
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“order” means the final expression of any decision in any civil action,
proceeding or matter which is not a judgment”.
The aforesaid sections were considered in the case of A. S. Sangarapillaiand Bros. Vs. KathiraveldA) wherein the judgment were as follows:
Ex-parte decree entered for default-defendant ejected – applicationin court that no summons served and to have the proceedings vacated- Court set aside all proceedings – Civil Procedure Code Sections84,88,753 and 754.
Meaning of “Judgment” and “Order” -Revisionary powers of court-when revision lies.
HELD:“Order made under section 88(2) of the Civil Procedure Code givesrise to a direct appeal and not leave to appeal.
The onus is on the defendant to prove that summons were notserved on him.”
At page 103 Siva Selliah, J. made the following observations:
“The facts material for the determination of these applications are asfollows: The plaintiff filed action in D. C. Chavakachcheri No. 5933 on7.8.80 praying for ejectment of the defendant from certain shop premises.Summons was served on the defendant returnable on 12.11.81 on whichdate the defendant did not appear and the case was thereafter fixed for ex-parte trial on 04.12.80 and judgment and decree were entered in favour ofthe plaintiff. The decree was served on the defendant on. 01.01.81 and on23.01.81 plaintiff moved for issue of writ which was allowed and the writwas executed on 27,. 01.81. On 9. 02.81 the defendant filed applicationto set aside the ex- parte judgment against him for default on the groundthat summons had not been served on him. This was set down for inquiryand order delivered on 1.9.83 setting aside the judgment entered againsthim for default of appearance and allowing the defendant to file answerand also ordering restoration of possession of the premises to thedefendant. Against this order the plaintiff-appellant has filed these presentapplications for leave to appeal and revision. Certain preliminary objectionswere taken to these applications: (a) that leave to appeal is not availableas the order complained of is an appealable order and therefore notice ofappeal should have been filed”.
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“In the instant case I am of the view that the determination of the DistrictJudge made on 1.9.83 setting aside judgment entered against the defendantfor default of appearance due to non service of summons and allowing himto file answer is an ‘order’ made under section 88(2) of the Civil ProcedureCode and that due to the special provision contained therein and the inbuilt safeguard provided thereby and considering the tenor of the judgmentsof Vaitilingam, J. and Abdul Cader, J. and O. S. M. Senevirate, J. quotedabove, I hold that a direct appeal is provided for in the circumstances andthat an application by way of leave to appeal does not lie”.
Also in the case of Wijenayake vs. Wijenayake<S) the aforesaid sectionviz: Section 88 (1) and (2) and also section 754 of the Civil ProcedureCode were considered. The facts as narrated by Palakidnar, J. are asfollows:
The defendant petitioner Gamini Wijenayake is seeking the leave ofthis Court to appeal from a judgment of the District Judge of Mount Laviniadated 18.08.1986 entered ex-parte in favour of the plaintiff-respondent SunilWijenayake in a rent and ejectment matter (No. 2534/Re-D. C. MountLavinia).
On 02.09.1986 the defendant made an application to set aside thisorder on the grounds that summons was not served on him. On 12.05.1987the learned District Judge made order refusing to set aside the ex-partejudgment and decree. An earlier application for revision of this judgment536/87 to this court was withdrawn.
A preliminary objection was taken to this application by counsel for therespondent that this remedy sought by the defendant in this manner ismisconceived in law. It was the learned counsel’s contention that a directappeal lies from this order and there was no provision in law for leave toappeal as prayed for by the defendant. This although it has been averredthat there are other serious factual irregularities which made the defendant-petitioner’s position untenable before this Court.
This section 88(2) sets out clearly and unambiguously the right of appealgiven to a party in either event, the order though so described is accompaniedby judgment adjudicated upon the facts. Thus any misconception withregard to the appealability of the order under section 88(2) is clearly removed.It is a final order accompanied by a judgment deciding the rights of theparties in a conclusive way within the contemplation of the term judgment
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set out in section 754(1) of the Civil Procedure Code. An order as interpretedin section 754(5) is a final expression of any decision in any civil actionproceeding or matter which is not a judgment. In the instant case statuterequires that the order has to be accompanied by a judgment adjudicatingon the facts. Thus it is clearly a judgment as defined in section 754(5).
The right of appeal is given by the words “shall be liable to appeal’>Thus one cannot conceive it to be an order to appeal from which leave fromthe Supreme Court should be first had and obtained as set out in section754, subsection (2). The remedy sought is therefore misconceived.
It was contended by learned counsel for the respondent that section752(2) repeals section 88(2), in that it confers a right to appeal from anyorder for the correction of any error of fact or law with the leave of theSupreme Court first had and obtained. If section 88 (2) did not contain therequirement that the order shall be accompanied by a judgmentadjudicating upon the facts and specifying the grounds on which it ismade, one may deem it to be an order contemplated in section 752(2),and that the instant application was correctly made. But section 88(2)makes it very plain that the order shall be accompanied by a judgmentand is an appealable order as distinct from an order for which leave hasto be had and obtained from the Supreme Court. On the mere reading ofthe two sections 754(2) and section 88(2) one has to reject withouthesitation the argument that the former repeals the latter,. Therefore thisapplication for leave to appeal has to be rejected as a relief misconceivedin the circumstances and the application is dismissed with costs fixedat Rs. 205.
I have no hesitation in agreeing with the reasoning of Palakidnar, J. Imight also add that there is no ambiguity in the words used in section88(2) of the Civil Procedure Code which provides a specific statutory rightof a final appeal. This is clearly spelt out when it is stated very clearly inthe section that the order setting aside or refusing to set aside the judgmententered upon default shall be accompanied by a judgment adjudicatingupon the facts and specifying the grounds upon which it is made andshall be liable to an appeal to the Court of Appeal’.
For the foregoing reasons, I would hold that the petitioner has failed toresort to the statutory remedy provided by law in not lodging a directappeal to this Court and the instant application for leave to appeal is
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misconceived in law and hence the petitioner cannot have and maintainthis action. In the circumstances the preliminary objection raised withregard to the maintainability of this application is well taken. Accordinglythe application for leave to appeal will stand rejected with costs fixed atRs. 10,000/-
WIMALACHANDRA, J -1 agree.
Appeal dismissed.