032-SLLR-SLLR-2006-V-1-NAVARATNE-vs.-WADUGODAPITIYA-AND-OTHERS.pdf
CA
Navaratne vs
Wadugodapitiya and others
275
NAVARATNEvs
WADUGODAPITIYA AND OTHERSCOURT OF APPEALSOMAWANSA, J. (P/CA)
CALA 452/2004DC KANDY 21172/1MARCH 17, 2005
Civil Procedure Code, sections 438/754(2)/757 and 759(2) — Leave to appeal
Not supported by a valid affidavit — Consequences ?—Affidavit not signedby the party — Bona fide mistake in signing the petition and not the affidavit ?
Acceptance of same 7 — Could a corrected affidavit be submitted later ?Should an affidavit accompany the petition ?
The defendants respondents contended that the application for leave toappeal is not properly constituted in that the plaintiff petitioner’s amendedpetition is not supported by a valid affidavit – not being signed by the plaintiff-petitioner – and in the circumstances should be dismissed in limine.
The position of the plaintiff petitioner was that after reading the affidavit,thinking he signed the affidavit placed his signature on the petition instead ofplacing same on the affidavit, and that it is a bona fide mistake.
HELD:
The purported affidavit does not comply with the provisions containedin section 438.
It is seen that in the instant application for leave, the averments containedin the petition are not supported by a valid affidavit. The application forleave to appeal is not properly constituted and has to be rejected.
Per SOMAWANSA, J. (P/CA)
“In the instant application in making the purported affidavit, I would say notonly the attorney-at-law on record, but the plaintiff petitioner as well as theJustice of Peace had been negligent and careless. Such acts should not becondoned or considered as technicalities that should be overlooked.”
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Per SOMAWANSA, J. (P/CA)
Though in section 757 the words used are “such petition shall be supportedby affidavit" which indicate that the affidavit need not be accompanied with thepetition and the supporting affidavit could be tendered after any mistake hasbeen corrected with permission of court, I am not inclined to hold such a view- my considered view is that a valid affidavit in compliance with section 438should be tendered supporting the averments in the petition, and section759(2) cannot be made use of to bring about legal validity or sanctity to apurported affidavit invalid and unacceptable in law."
APPLICATION for leave to appeal from an order of the District Court of Kandy,on a preliminary objection raised.
Cases referred to:
Clifford Ratwatte vs Thilanga Sumathipala (2001) 2 Sri LR 56
Keerthiratne vs Udena Jayasekera (1990) 2 Sri LR 346
Meeruppe Sumanatissa Therunnanse vs Warakapitiya SanganandaTherunanse 66 NLR 333
A. Anees for petitioner.
D. Jayasuriya with Jeffry Zainudeen for respondents.
June 03,2005ANDREW SOMAWANSA, J. (P/CA)When this application for leave to appeal was taken up for inquiry, counselfor the defendants-respondents took up a preliminary objection that theapplication for leave to appeal is not properly constituted in that the plaintiff-petitioner’s amended petition filed in this Court is not supported by a validaffidavit. Since the purported affidavit tendered with the amended petitionhas not been signed by the plaintiff-petitioner, the plaintiff-petitioner’spurported application ought to be dismissed in limine. On the aforesaidpreliminary objection both parties agreed to tender written submissionsand have tendered their submissions.
CA
Navaratne vs
Wadugodapitiya and others (Andrew Somawansa, J.) (P/CA))
277
The relevant facts are the plaintiff-petitioner filed the instant applicationfor leave to appeal initially by a petition and affidavit dated 01.12.2004.Thereafter the plaintiff-petitioner obtained leave of this Court and filed anamended petition and an affidavit purported to be that of the plaintiff-petitionerbut not signed by the plaintiff-petitioner.
This fact is conceded by the counsel for the plaintiff-petitioner in hiswritten submissions wherein he says the plaintiff-petitioner has filed anaffidavit but apparently not placed the signature at the end of the affidavitagainst the jurat clause. He submits that this is a bona fide mistake onthe part of the petitioner who obviously placed the signature after readingthe affidavit thinking that he signed the affidavit in the presence of theJustice of Peace who attested his signature, but that the affirmant bymistake has placed the signature on the petition instead of placing thesame on the affidavit. He further submits that a bona fide mistake in notplacing the signature on to the right paper should not jeopardize thegenuine application for leave to appeal for the plaintiff-petitioner in thebelief that he signed an affidavit has by mistake placed his signature on tothe petition.
Be that as it may, the aforesaid mistake on the part of the plaintiff-petitioner clearly indicates that the purported affidavit has not been readover and explained to the plaintiff-petitioner nor has the plaintiff-petitionerhimself read the affidavit which is fatal to the validity of the said affidavit. Ifas the plaintiff-petitioner tries to make out that he placed his signature onthe petition instead of on the affidavit then the purported affidavit has beensigned by the Justice of Peace prior to the plaintiff-petitioner placing hissignature on the petition, for it is obvious that the Justice of Peace shouldhave observed that the affirmant’s signature was not on the affidavit whenhe entered the jurat clause. In effect it is obvious that the purported affidavitdoes not comply with the provisions contained in section 438 of the CivilProcedure Code which reads as follows:
“Every affidavit made in accordance with the proceedingprovisions shall be signed by the declarant in the presence of
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the court, Justice of the Peace, or Commissioner for Oaths orperson qualified before whom it is sworn or affirmedn.
Provision relating to application for leave to appeal are laid down inSection 754(2) read together with section 757 of the Civil Procedure Code.The relevant provisions of section 757 of the Civil Procedure Code readsas follows:
“Every application for leave to appeal against an order of courtmade in the course of any civil action, proceeding or mattershall be made by petition duly stamped, addressed to the Courtof Appeal and signed by the party aggrieved or his registeredattorney. Such petition shall be supported by affidavit”.
Thus it is to be seen that in the instant application for leave, the avermentscontained in the petition are not supported by a valid affidavit. Thereforeone has to concede that the plaintiff-petitioner’s application for leave toappeal is not properly constituted and has to be rejected.
In the case of Clifford Ratwatte vs Thilanga Sumathipalsfv
it was held:
‘The deponent states that he is a Christian and makes oath,the jurat clause at the end of the affidavit states that the deponanthas affirmed. The affidavit is defective.”
It was further held:
“Subsequent explanation cannot be used to correct in any waywhat is obvious on the face of the affidavit in question andtherefore it is not an affidavit which has any legal validity orsanctity and therefore there was no affidavit as required by lawfiled with the Petition within 14 days, as contemplated in section757(1) – C.P.C. “It is not a mistake as to formality that can becured under s. 759(2).”
CANavaratne vs279
Wadugodapitiya and others (Andrew Somawansa, J.) (P/CA))
Counsel for the plaintiff-petitioner also refers to section 759 of theCivil Procedure Code which reads as follows:
759(1) “If the petition of appeal is not drawn up in the manner in the lastpreceding section prescribed, it may be rejected, or be returned to theappellant for the purpose of being amended, within a time to be fixed bythe court; or be amended then and there. When the court rejects underthis section any petition of appeal, it shall record the reasons for suchrejection. And when any petition of appeal is amended under this section,the Judge, or such officer as he shall appoint in that behalf, shall attest theamendment by his signature.”
“In the case of any mistake, omission or defect on the part of anyappellant in complying with the provisions of the foregoing sections, theCourt of Appeal may, if it should be of opinion that the respondent has notbeen materially prejudiced, grant relief on such terms as it may deemjust”.
In this respect, I would refer to the decision in Keerthiratne vs UdenaJayasekeraf2>
wherein it was held :
“The provisions of section 759(2) of the Civil Procedure Codecannot be invoked to condone the negligence and carelessnessof the attorney-at-law on record”.
In the instant application in making the purported affidavit, I would saynot only the Attorney-at-Law on record but the plaintiff-petitioner as wellas the Justice of Peace had been negligent and careless. Such actsshould not be condoned or considered as technicalities that should beover-looked.
Counsel for the plaintiff-petitioner also invites us to compare provisionscontained in section 757 of the Civil Procedure Code with section 766 of
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the Civil Procedure Code and submits that in section 757 of the CivilProcedure Code words used are “such petition shall be supported byaffidavit” which indicate that the affidavit need not be accompanied withthe petition and the supporting affidavit could be tendered after any mistakehas been corrected with permission of Court. However I am not inclined tohold such a view. My considered view is that a valid affidavit in compliancewith section 438 of the Civil Procedure Code should be tendered supportingthe averments in the petition and section 759(2) cannot be made use of tobring about legal validity or sanctity to a purported affidavit invalid andunacceptable in law.
Counsel for the plaintiff-petitioner also has cited the decision in MeeruppeSumanatissa Therunnanse vs Warakapitiya Sangananda Terunnanse<3!
where it was held :
“In an application for conditional leave to appeal to the PrivyCouncil in terms of Rule 2 of the Schedule to the Appeals(Privy Council) Ordinance, the absence of an affidavit is notfatal to a grant of leave.”
However the aforesaid dicision has no relevance to the facts of theinstant application for that decision dealt with appeals (Privy Council)Ordinance Schedule Rules 1 (a) 2 and 3 which are repealed and no longeroperative.
For the foregoing reasons, I would hold that the purported affidavitaccompanying the petition tendered by the plaintiff-petitioner is not a validaffidavit. In the circumstances, I would uphold the preliminary objectiontaken on behalf of the defendants-respondents and dismiss the plaintiff-petitioner’s application for leave to appeal with costs fixed at Rs. 5000.
Preliminary objection upheld; application dismissed.