008-SLLR-SLLR-2006-V-2-SAMANTHA-KUMARA-vs.-MANOHARI.pdf
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Samantha Kumara vs. Manohari
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SAMANTHA KUMARAVS.MANOHARISUPREME COURT.
S.N. SILVA, C.J.
FERNANDO, J.
AMARATUNGA, J.
SC 44/2005.
HC KALUTARA NO. 118/2003.
MC MATUGAMA NO. 13390.
MARCH 13,2006.
MARCH 24,2006.
High Court of the Provinces Act, No. 19 of 1990, section 9 – Maintenance Act,
No. 37 of 1999, section 14(2) – Maintenance Ordinance, No. 19 of 1889-
Maintenance Ordinance, No. 13 of 1925 – Constitution Article 138-Articie-
154P 3(b)-13th Amendment – Appeal from the High Court – Applicability of
Rules of Supreme Court 1990 – Procedure.
HELD:
The 13th amendment to the Constitution which came into force on14.11.1987 by Article 154P(3)(b) vested the High Court of the Provinceswith jurisdiction in respect of orders made by the Magistrates.
The present Maintenance Act section 14 specifically provided for anappeal to the Provincial'High Court and from there to the SupremeCourt with the leave of the Supreme Court and when such leave isrefused with special leave of the Supreme Court first had and obtained.
Supreme Court Rules of 1990 have categorized appeals to theSupreme Court into three groups. The instant appeal falls into thecategory of other appeals Part 1C.
Per Raja Fernando, J.
“When the appeal is with leave of the High Court then Supreme CourtRules under Part 1C applies; if the appeal is with special leave of theSupreme Court, then rules under Part 1A shall apply.”
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Sri Lanka Law Reports
(2006) 2 Sri L R.
In determining the time for an aggrieved party to lodge an applicationfor special leave to appeal – when no time is fixed by statute or Rules- the time frame is 42 days.
Following the same reasoning the time frame for a petitioner to file anappeal from a High Court order is 42 days from the date leave toappeal is granted by the High Court.
According to Rule 28(2) every such petition of appeal when leave isgranted by the High Court shall be lodged at the Supreme CourtRegistry not in the Registry of the High Court.
The appellant should also tender a notice of appeal with his petitionof appeal-Rule 28(3).
HELD FURTHER:
The petition of appeal has been tiled in the Registry of the High CourtKalutara contrary to Rule 28(2).
The appellant has also failed to comply with Rule 28(3) which re-quired the appellant to tender with his petition of appeal the notice ofappeal.
APPEAL from an order of the High Court, Kalutara on a preliminary objection'raised.
Cases referred to:
Tea Small Holders Ltd., vs. Weragoda 1994 3 Sri LR 353
Mahaweli Authority of Sri Lanka vs. United Agency Corporation (Pvt)Ltd. 2002 1 Sri LR 8
D. Amarasekera for petitioner.
Rohan Sahabandu with Athula Perera for respondent.
Cur.adv.vult.
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Samantha Kumara vs. Manohari (Raja Fernando, J.)
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June 15, 2006.
RAJA FERNANDO J.The applicant Respondent-Respondent hereinafter referred to as theRespondent instituted action No. 13390 (Maintenance) on 6th July 2000in the Magistrate’s Court of Mathugama claiming maintenance from theRespondent-Appellant-Appellant (hereinafter referred to as the Appellant)for the child bom out of wedlock.
The teamed Magistrate by his order dated 17.12.2002 ordered theRespondent to pay a sum of Rs. 750 per month as maintenance for thechild.
Being aggrieved by this order the appellant appealed to the High Courtunder Article 154 P of the Constitution read with section 14 of theMaintenance Act, No. 37 of 1999, and the High Court dismissed the appealon 10.03.2005.
The Appellant thereafter sought leave to appeal to the Supreme Courtin terms of section 14(2) of Act, No. 37 of 1999 read with section 9 of Act,No. 19 of 1990 from the High Court and leave was granted by the HighCourt on 06.06.2005.
After leave to appeal to the Supreme Court has been granted by theHigh Court on 06.06.2005 the appellant on 13.06.2005 has filed a petitionof appeal addressed to the Supreme Court in the Registry of the HighCourt.
When the matter came up before this Court counsel for the Respondenttook up a preliminary objection that the Petition of Appeal has not beenfiled in terms of the Rules after the High Court granted leave.
Written submissions of both parties were filed on 24.03.2006.
It was the position of the respondent that the Petition of Appeal hasbeen filed out of time and that the Petition of Appeal ought to have beenfiled in the Supreme Court whereas the appellant has lodged the petitionin the High Court and therefore there is no valid appeal before Court.
Under the old Maintenance Ordinance No. 19 of 1889 as amended byAct, No. 13 of 1925 an appeal from the order under the Maintenance
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Sri Lanka Law Reports
(2006) 2 Sri LR.
Ordinance was to the then Supreme Court and the procedure was thesame as if the order was by the Magistrate in a criminal case. (Videsection 17 of the Maintenance Ordinance No. 19 of 1889).
In 1978 with the new Constitution when the Court of Appeal wasestablished Article 138 vested the Court of Appeal with appellate jurisdictionin respect of orders made by courts of first instance, resulting in all appealsunder the Maintenance Ordinance which hitherto came to the SupremeCourt being directed to the Court of Appeal.
The 13th Amendment to the Constitution which came into force on14.11.1987 by Article 154 P 3(b) vested the High Court of the Provincewith jurisdiction in respect of orders made by the Magistrate.
The present Maintenance Act, No. 37 of 1999 repealed the MaintenanceOrdinance and Section 14 specifically provides for an appeal to the ProvincialHigh Court and from there to the Supreme Court with the leave of the HighCourt and when such leave is refused with the Special Leave of the SupremeCourt first had and obtained, (vide Section 14 of Act, No. 37 of 1999).
The Appellant in this case has in terms of section 14 of the MaintenanceAct, No. 37 of 1999 read with Article 154 P 3 (b) of the Constitution madean appeal to the High Court of the Province. He has obtained leave toappeal to this Court from the High Court.
The Appellant has thereafter filed a petition of appeal addressed to theSupreme Court in the registry of the High Court.
This procedure is being challenged by the Respondent as being contraryto the Supreme Court Rules of 1990.
The Appellant submits that no Rules exist at present governing appealsfrom the Provincial High Court to the Supreme Court and there is no defaulton his part.
Supreme Court Rules of 1990 have categorised Appeals to the SupremeCourt into three groups:
Part 1 A – Appeals with special leave obtained from the Supreme Court
Part 1B – Appeals with leave to appeal from the Court of Appeal
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Samanlha Kumara vs. Manohari (Raja Fernando, J.)
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Part 1C – Other appeals
Part 1C – Rule 28 of the Supreme Court rules read as follows:
“(1) Save as otherwise specifically provided by Parliament, the provisionsof the rule shall apply to all other appeals to the Supreme Court from anorder, judgment, decree or sentence of the Court of Appeal or any othercourt or Tribunal”
The present Appeal is neither with special leave from the SupremeCourt nor with leave of the Court Of Appeal but with leave from the HighCourt. Therefore the instant appeal clearly falls into the category of otherappeals and hence rules in Part 1C dealing with other appeals wouldapply.
The position of the Appellant that there are no rules governing appealsfrom the Provincial High Court to the Supreme Court is therefore incorrect
An appeal to the Supreme Court from an order of the Provincial HighCourt can be either with the leave of the Provincial High Court or withspecial leave obtained from the Supreme Court upon a refusal of leave bythe High Court.
If the appeal is with leave of the High Court then Supreme Court rulesunder Part 1C (other appeals) shall apply; if the appeal is with specialleave of the Supreme Court then Supreme Court rules under Part 1A (specialleave to appeal) shall apply mutatis mutandis since Rule 2 relates to everyapplication for special leave to appeal”
As regards the procedure in the instant case the rules applicable toother Appeals in Part 1C of the Supreme Court rules shall apply.
A question arises in fixing the time within which the Appeal is to be filedin the Supreme Court for the reason that the Rules are silent on the matter.
In determining the time for an aggrieved party to lodge an application forspecial leave to the Supreme Court where no time is fixed either in thestatute or the rules; this Court has in the case of Tea Small HoldersLimited vs. Weragoda(1) and in the case of Mahaweli Authority of SriLanka vs. United Agency Construction (Pvt.) Ltd.(2) held that the Petitioner
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(2006) 2 Sri LR.
should make his application within a reasonable time, and relying on thetime period prescribed in the rules for similar applications has held that 42days is reasonable time.
Following the same reasoning I am of the view that the time frame for apetitioner to file an appeal should be 42 days from the date leave to appealis granted by the High Court.
Coming to the preliminary objection with regard to the place of filing ofthe appeal papers after having obtained leave from the High Court; Part 1C(other appeals) is clear in its provisions as to the papers that need to befiled and also the place where it has to be filed.
According to rule 28(2) “every such appeal shall be upon a Petition inthat behalf lodged at the Registry” (Supreme Court).
It is undisputed that the petition of appeal has been filed in the Registryof the High Court contrary to the provisions of Rule 28(2) of Supreme CourtRules 1990.
Further the Appellant has failed to comply with rule 28(3) which requiresthe Appellant to tender with his petition of appeal a notice of appeal.
Therefore I hold that the Appellant is guilty of non-compliance of theRules and hence the preliminary objection raised by the Respondent mustsucceed.
Accordingly this appeal of the Appellant is rejected.
The Respondent is entitled to the costs of this application.
Registrar is directed to return the record to the High Court of Kalutara tobe forwarded to the Magistrate’s Court of Matugama.
S.N. SILVA C. J. — / agree.
AM ARATUNG A, J. — / agree.
Appeal rejected.