029-SLLR-SLLR-2006-V-1-SANJEEWA-AND-ANOTHER-vs.-PIYATISSA-AND-ANOTHER.pdf
CA
Sanjeewa and Another vs
Piyatissa and Another (Andrew Somawansa, J.)
241
SANJEEWA AND ANOTHERVSPIYATISSA AND ANOTHERCOURT OF APPEALSOMAWANSA, J. (P/CA) ANDWIMALACHANDRA, J.
CA 480/2004 NWLTDC KULIYAPITIYA10590/L,
MARCH 28,2005
Civil Procedure Code, sections 754, 755, 756 and 765 – Appeal notwithstandinglapse of time- Prevented by causes not within his control?-Kandyan LawDeclaration and Amendment Ordinance, No. 59 of 1939, section 51(d) -Revocation?- In what circumstances?- Statutory right to revoke. ?
Held:A mistake or oversight on the part of the registered attorney-at-law is not a cause within the meaning of section 765.
Miscalculation of time or some other mistake or the failure beingdue to attorney's neglect are not causes within the meaning ofsection 765.
Held further:The amending Ordinance to the Ordinance, No. 59 of 1939, hasenacted a uniform rule requiring an express and not merelyinferential renunciation of the right of revocation.
The renunciation must be effected in a particular way, by adeclaration containing the words “I renounce the right to revoke"or words of substantially the same meaning. The statutory rightto revoke has to be exercised in a particular way.
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Sri Lanka Law Reports
(2006) 1 Sri L R.
APPLICATION for leave to appeal notwithstanding lapse of time from ajudgment of the District Court of Kuliyapitiya.
Cases referred to:
Rakira vs. Silindu 10 NLR 376
Julius vs. Hodgson 11 NLR 25
Ratnayakevs. Bandara – (1990) 1 Sri LR 156
Sunil Cooray with Shaminda Silva for defendant petitionersM. C. Jayaratne with Sobha Adhikari for plaintiff respondents.
Cur. adv. vult.
May 20,2005
ANDREW SOMAWANSA, J. (P/CA)
This is a leave to appeal application nothwithstanding lapse of timeseeking to set aside and vacate the judgment of the learned District Judgeof Kuliyapitiya dated 02.08.2002 and the interlocutory decree entered inthis action and for the grant of reliefs prayed for in the answer of thedefendants – petitioners or a declaration that under Kandyan Law,irrevocable deeds of gift cannot be subsequently revoked and to stay allfurther proceedings and for the issue of an interim order staying theexecution of the writ for ejectment.
Counsel for the plaintiffs – respondents did not file objections but at thehearing both parties agreed to resolve the matter by way of writtensubmissions and both parties have tendered their written submissions.
It is common ground that the judgment sought to be vacated by thedefendants- petitioners is dated 02.08.2002 and the application for appealnotwithstanding lapse of time is dated 16.02.2004. In terms of Section765 of the Civil Procedure Code the burden is on the defendants- petitionersto satisfy Court that the defendants-petitioners were prevented by causesnot within their control from complying with the provisions of Sections 754and 755 and that the defendants – petitioners have a good ground of appeal.The relevant Section 765 of the Civil Procedure Code reads as follows:
“It'shall be competent to the Court of Appeal to admit and entertain apetition of appeal from a decree of any original court, although the provisionsof sections 754 and 756 have not been observed.
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Sanjeewa and Another vs
Piyatissa and Another (Andrew Somawansa, J.) P(CA)
243
Provided that the Court of Appeal is satisfied that the petitioner wasprevented by causes not within his control from complying with thoseprovisions; and
Provided also that it appears to the Court of Appeal that the petitionerhas a good ground of appeal, and that nothing has occurred since the datewhen the decree or order which is appealed from was passed to render itinequitable to the judgment -creditor that the decree or order appealedfrom should be disturbed”.
It is common ground that the trial in the instant action commenced on17.06.2002 with 4 admissions and 9 issues settled between the parties.The 1 st plaintiff respondent testified to the fact that he revoked the deed ofgift given in favour of the 1 st defendant – petitioner as the 1 st defendant -petitioner was unkind to him. With this evidence the plaintiffs-respondentsclosed their case.
It is the position of the defendants – petitioners that at the end of the 1 stplaintiff-respondent’s evidence a date was moved for on behalf of thedefendants for the defence case. However as a practice in that Court atthat period the learned District Judge refused to grant a date andaccofdinglythe trial was concluded on the same day. The position of the defendants-petitioners is that the refusal of the adjournment sought by the defendants-petitioners from presenting their case was unreasonable and arbitrary andthat they were thereby deprived of a reasonable opportunity of being heardon the defences which they have taken up in this action. However on anexamination of the proceedings of 17.06.2002 the statement appears tobe incorrect and a misrepresentation of facts as to what took place thatday. The proceedings of that day reads as follows:
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I might also say that the record does not indicate that an applicationhas been made to revise this order dated 17.06.2002 and I might observethat the learned District Judge cannot be faulted for making the aforesaidorder which I think is a correct order, considering the circumstancesexplained by him.
It is also common ground that the judgment in .the instant case wasdelivered on 02.08.2002 in favour of the plaintiffs-respondents and thereafterthe defendants-petitioners filed a notice of appeal. However it is admittedthat the defendants-petitioners did not file a petition of appeal. The reasongiven by the defendants- petitioners for their failure to tender a petition ofappeal is that they did not contact their Attorney-at-Law thereafter on thebelief that the appeal procedure had been completed with the filing of thenotice of appeal. Accordingly no petition of appeal has been filed in thiscase and on 16.08.2002 the appeal had been referred to the Court ofAppeal. In the circumstances applying the provisions of Section 765 of theCivil Procedure Code to the reasons adduced by the defendants-petitionersfor failure to comply with the provisions in Section 755, my consideredview is that the defendants-petitioners have failed to satisfy Court that thedefendants – petitioners were prevented by cause not within their controlfrom complying with the provisions in Section 755.
In the case of Rakira vs. Silindu(1) it was held :
“A mistake or oversight on the part of the proctor of a party to suit is notsuch cause within the meaning of section 765 of the code as would entitlesuch party to the relief of leave to appeal notwithstanding the lapse oftime”.
Again in Julius vs. Hodgson(2) it was held:
CA
Sanjeewa and Another vs
Piyatissa and Another (Andrew Somawansa, J.) P(CA)
245
“The practice is not to give leave to appeal where the only ground reliedon is that the appellant or his proctor made some miscalculation of time orsome other mistake, or that the failure was due to the proctor’s neglect”.
The circumstances enumerated by the defendants-petitioners are notsufficiently unusual and compelling to satisfy that they were causes notwithin the defendants-petitioner’s control. There was negligence, inactionand want of bona tides on the part of the defendants- petitioners.
For the foregoing reasons, the contention of the submission of thecounsel for the defendants-petitioners that the defendants-petitioners havea very good case in appeal as they were not afforded a reasonableopportunity of being heard at the trial and that they were unable to file thepetition of appeal because of reasons beyond their control is without anymerit and has to be rejected.
In passing I might refer to another matter raised by the defendants-petitioners in that it is submitted by counsel for the defendants- petitionersthat as per clause 9(c) of the Kandyan Law a deed of gift in which the rightto revoke has been expressly renounced by the donor. Such deed of giftcannot be subsequently revoked. However this submission appears to beincorrect in view of the decision in Ratnayake vs. Bandara3 which held:
“ (1) The Kandyan Law Declaration and Amendment Ordinance, No. 59of 1939 is an Ordinance to declare and amend the Kandyan Law. It seeksto amend the Kandyan Law and not to make a mere restatemet of the lawas it was prior to 1939 when the intention to renounce the right to revokewas inferred or deduced from the particular words used. The amendingOrdinance has enacted a uniform rule requiring an express and not merelyinferential renunciation of the right of revocation. The words “expresslyrenounced” in s. 5(1) (d) of the Ordinance recognize a pre-existing right torevoke which every Kandyan donor had in Kandyan Law. What theOrdinance contemplates is an express and deliberate renunciation by thedonor of his right to revoke. From the words “ absolute and irrevocable” itmay be implied that the Donor intended to revoke but such an expressionwould not constitute an express renunciation of the right to revoke.
There is a further requirement that the renunciation must be effected ina particular way, viz. by a declaration containing the words “I renounce theright to revoke” or words of substantially the same meaning.
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The Ordinance by s. 5(1) (d) has now vested in the Donor a statutoryright to revoke and he is required to exercise that right in a particular way.
The words “ absolute and irrevocable” are only an adjectival descriptionof the gift but the essential requirement is a transitive verb of expressrenunciation. Words merely of further assurance are insufficient.
The use of the words “ absolute and irrevocable” and “to hold the premisesfor ever” do not satisfy the requirement of s. 5(1 )(d) of the Ordinance. DeedNo. 8247 was revocable.”
For the foregoing reasons, the application for leave to appealnotwithstanding lapse of time will stand dismissed with costs fixed atRs.7500.
WIMALACHANDRA, J. — I agree.
Application dismissed.