019-SLLR-SLLR-1990-V-1-SAMARASEKERA-v.-MUDIYANSE-AND-OTHERS.pdf
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Samarasekera v. Mucfyanse and Others
137
SAMARASEKERA
v.MUDIYANSE AND OTHERS
COURT OF APPEAL.
A. DE Z. GUNAWARDANA, J.
C.A. 253/86 – M.C. HAMBANTOTA 644.
FEBRUARY 26 AND 26. 1990.
S.C. Rules, 1978, Rule 46 – Mandatory nature ot the said Rule.
The petitioner filed this application to revise an Order made by the Magistrate Hambantotaon 24.1.86, sitting as a Judge of the Primary Court, in a complaint made under section 62of the Primary Courts Procedure Act. The petitioner filed only a certified copy of the saidorder along with the petition and affidavit and failed to file the relevant proceedings of theoriginal Court as required under Rule 46. A preliminary objection was taken by the Counselfor the 1st respondent that the petitioner cannot maintain the said application as he hasfailed to comply with Rule 46 of the S.C. Rules.
Held:
(r) Following the decision in Navaratnasingham vs. Arumugam and Another (1980) 2 SLRpage 1, that proceedings under Rule 46 would mean *so much of the record as would benecessary to understand the order sought to be revised and to place It in its proper context."
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[1990] 1 Sri L.R.
{it) The rules of procedure have been devised to eliminate delay and facilitate dueadministration of justice. The instant case is a good example which illustrates that therevisionary powers of this Court cannot be exercised without the petitioner furnishing to thisCourt the relevant proceedings on which the order sought to be revised is based on. Rule46 had been formulated to avert such situations. The observance of Rule 46 is mandatory.
Cases referred to :
Navaratnasingham vs. Ammugam and Another (1980) 2 Sri LR I
Mohamed Hanifia Rasheed Ali vs. Khan Mohamed Ali and Another S.C. 6/81 andS.C. Minutes of 20.11.81.
W.M. Kiriwanthe vs. N.M.A. Navaratne and Another C.A. 626/89 – C.A. Minutesof 19.01.90
Nicholas vs. O.L.M. Macan Markar Ltd. and Others (1981) 2 Sri LR I
PRELIMINARY OBJECTION to Application in Revision of an order of the Magistrate ofHambantota.
Batty Weerakoon for petitioner.
K. Balapatabendi for 1st respondent.
Cur.adv. vult.
April 14, 1990.
A. DE Z. GUNAWARDANA, J.
This is an application for Revision of an order made by the MagistrateHambantota on 24.1.86 sitting as Primary Court Judge, on a complaintmade under section 62 of the Primary Courts Procedure Act. After inquiry,the learned Magistrate by his said order has held that the 1 st respondentwas in possession of the lands called Mailagahakumbura,Kongahakumbura and Siyabalagahawatte, at the relevant time, and thatthe petitioner has not been evicted from the said lands.
A preliminary objection was raised by the 1 st respondent's Counselthat the petitioner cannot maintain this application as he has failed tocomply with Rule 46 of the Supreme Court Rules, in not having filed therelevant proceedings of the original court as required under the said Rule.At the time the said application was filed in court the petitioner has filedonly a certified copy of the said order along with the petition and affidavit.The evidence upon which the said order was based and the documentsrelating thereto, have not been filed along with the said order. The petitionhad been filed on the 5th of March 1986 and was supported on 11.3.86before this Court on which date the Court has issued notice on therespondents. On the notice returnable date Counsel for the 1 st respondent
Samarasekera v. Mudiyanse and Others (A. de. Z. Gunawardana, J.)
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had appeared and had asked for time to file objections. On or about28.5.86 objections have been filed by the 1st respondent. On 24.1.90when this application came up for argument before this Court thepetitioner had moved to file a certified copy of the proceedings containingthe evidence led and the documents produced before the Primary Court.At this stage Counsel for the 1 st respondent had objected to the filing ofthese documents as they ought to have been filed with the petition asrequired under Rule 46. The Court however had allowed the documentsto be filed and fixed the matter in regard to the said objection to theadmission of the said documents for argument on 31.1.90. Thereafterboth parties have filed written submissions relating to the said objectiontaken by the 1st respondent.
At the out set it would be appropriate to quote the relevant Rulewhich reads as follows :
Rule 46, “Every application made to the Court of Appeal for theexercise of powers vested in the Court of Appeal by Articles 140 and141 of the Constitution shall be by way of petition and affidavit insupport of the averments set out in the petition and shall be accompaniedby originals of documents material to the case or duly certified copiesthereof, in the form of exhibits. Application by way of revision orrestitutio in integrum under Article 138 of the Constitution shall bemade in like manner and be accompanied by two sets of copies ofproceedings in the Court of First Instance, tribunal orother institution.”
Thus according to Rule 46 when an application for revision or restitutioin integrum is made to the Court of Appeal it is necessary that two setsof copies of proceedings in the Court of First Instance, Tribunal orInstitution should be filed along with the said application. The word“proceedings” is not defined in the said Rule. However in the case ofNavaratnasingham vs. ArumugamandAnother( 1) Justice Soza has heldthat:—
”… the term ‘proceedings’ as used in Rule 46 means so much of therecord as would be necessary to understand the order sought to berevised and to place it in its proper context. This expression can, andoften will, include the pleadings, statements, evidence and judgment.”
I am in respectfull agreement with the above definition of the word“proceedings" as referred to in the said Rule 46.
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[1990] 1 Sri LR.
The petitioner in his prayer to the petition has sought-
“to revise the order of the learned Magistrate by setting it aside andto hold that the complainant/ petitioner is entitled to be put intopossession of the lands in suit;"
Since, by this plea, the petitioner is seeking to canvass the said ordermade by the learned trial Judge, based upon the evidence and thedocuments placed before him, it will be incumbent on this Court toexamine the evidence and the documents produced in the case, if in factthis Court is to review the said order. In my view it would be praticallyimpossible to do so without considering the evidence and the documentsthat were presented to the learned trial Judge. However the petitionerwhen he filed this application has filed only a copy of the said order of thelearned Magistrate. He had failed to file the proceedings upon which thesaid order was based. The present step taken by the petitioner appearsto be, an effort to cover that lacuna by seeking to file the said proceedingsat this stage. This, in my view, is, a clear case of non-compliance with themandatory requirements of Rule 46.
Further more the petitioner in his petition had urged in para 14 that:
“the learned Magistrate erred both on the law and on the facts
when he failed to appreciate the fact that the 3 lands were possessedas one continuous stretch of lands and the dispossession took placewhen the complainant-petitioner's Agent was turned out of the 2roomed structure which stood on the land. He further states that thelearned Magistrate erred on the facts when he held that thedispossession or the alleged dispossession took place on differentdates and/or that the dispossession took place more than two monthsprior to the information being filed."
In paragraph 15 the petitioner states:
It is further respectfully staled that the learned Magistrate failed totake into consideration that:
(a) the documentary evidence of the complainant – petitionershowed that he was in possession of the said lands, and thatthis documentary evidence consisted of licences issued to thecomplainant-petitioner and his agents in respect of the land andof entries in official records;
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Samarasekera v. Mudiyanse and Others (A. de Z. Gunasekera, J.)
the only basis on which the 1st respondent claimed he was inpossession, which is the alleged ownership of the said lands by hisfather-in-law Dionis was proved false from the certified records ofa previous action in respect of this land."
Thus the above two paragraphs of the petition shows that the petitioneris canvassing the facts proved in this case based upon the evidence andthe documents. For this Court to look into these averments, it is essentialthat the evidence and the documents which were presented to thelearned Magistrate be available to this Court, but the petitioner when hefiled his petition has failed to furnish the said documents and theevidence. This he cannot do now, because Rule 46 required thatproceedings which are material to the case should be filed along with thepetition and affidavit.
in the case of Mohamed Manilla Rasheed Ali vs. Khan Mohamed AHand Another (2) the majority of the judges expressed the view that Rule46 is mandatory. This view in regard to Rule 46 had been followed by thisCourt in the case of W. M. Kiriwanthe vs. N. M. A. Navaratne and Another
. A similar view had been adopted by this Court in construing themandatory nature of Rule 47 of S.C. Rules, in the case of Nicholas vs. O.
M. Macan Markar Ltd. and Others (4).
The rules of procedure have been devised to eliminate delay and tofacilitate due administration of justice. The instant case is a good examplewhich illustrates that the revisionary powers of this Court cannot beexercised without the petitioner furnishing to this Court the relevantproceedings upon which the order sought to be revised, is based on. Thusit is seen that Rule 46 had been formulated to avert such situations.Hence in my view the observance of Rule 46 is mandatory.
The petitioner in this application had failed to file the relevant proceed-ings as required under Rule 46 and therefore I am of the view that the 1 strespondent is entitled to succeed in his preliminary objection. Hence thisapplication is dismissed with costs fixed at Rs. 210/-.
Objection upheld.
Application dismissed.