Thilagaratnam V. E. A. P. Edirisighe

006-SLLR-SLLR-1982-1-Thilagaratnam-V.-E.-A.-P.-Edirisighe.pdf


56
Sri Lanka Imw Reports
{19821 I S.L.R
COURT OF APPEALThilagaratnamV.
A.P. Edirisinghe
C.A. 1265/81 — CA — LA 50/81 — D.C. Colombo 32484/S
Cheque – Civil Procedure Code Sections 704. 705, 754, 755, 756, 759, 765 – Courtcan exercise revisionary powers even if Right of Appeal is available -exceptional circumstances.
Respondent instituted action against Petitioner for recovery of a sum ofRs.15,000/- due on a cheque dated 10.2;77, (drawn by Petitioner. Petitionermoved to file answer unconditionally. After inquiry Judge made ordergiving leave to Petitioner to file answer on 10.5.81 on condition shedeposited a sum of Rs.7,500/- Petitioner appealed against this order.
It was argued for the Respondent that application for leave to appealagainst the order was out of time and that Petitioner could not moveCourt to act in revision.
It was further argued that though a copy of the cheque was not attachedto the summons no prejudice was caused to the Respondent- Petitioneras the cheque leaf which was attached to the Plaint could have been inspected.
Petitioner argued that Judge should not have issued summons becausethere was an alteration on the face of the cheque.
Held 1) thatsectibn(759(2)gives the Court of Appeal the discretionto grant reliet in appropriate cases in case of any mistake,omission or defect in complying with the provisions of Section754 and 756.
Though the Appellate Courts' powers to act in revision werewide and would be exercised whether an appeal has been takenagainst the order of the original court or not such powers wouldbe exercised only in exceptional circumstances.
That there were no exceptional circumstances in this caseto justify exercise of the Court’s powers of revision.
No prejudice was caused to Respondent by not attachingcopy of cheque to summons as Cheque was annexed to plaintand could have been inspected.
Judge had addressed his mind to the fact of alteration andthe allegation could not be sustained.
CA
Thitagaratnam v. Edirisinghe 11 . II. tir Alwis. ./.)
57
Application for leave to appeal from and revision of order, ofthe District Judge bf Colombo.
Before:
Counsel:
Argued on:Decided on:
L.H. De. Alwis. J & Seneviratnc. J..N. Kanagasunderam for Petitioner.
S. A. Parathalingam for Respondent.24th & 27th of November 1981.
15.1.1982
Curr adv. vult.
H. DE ALWIS. J.,
These two applications were taken up together at the instance ofcounsel for the respective parties. C.A. – A.L- 50/81 filed on 21.4.1981,is an application by the petitioner for Leave to .Appeal against theorder of the District Court of Colombo dated 6th March 1981.“refusing an application for leave to appear and defend unconditionally”under Cap. LIII Civil Procedure Code, and is the first in point oftirtie. Actually the order of the learned District Judge is that theDefendant, who is the petitioner, should deposit a sum of Rs 7.5(H)/-.in order to appear and defend the action.
A. Application No. 1265/81 is an application for revision of thesame order of the District Court, Colombo dated 6th March 1981,and though the petition is dated 22.9.81 it has been filed, accordingto the date stamp on it, only on the 23rd October 1981..
Action No. 32484/S was instituted by the respondent in the DistrictCourt of Colombo, under Cap. 53 . of the Civil Procedure Code,claiming a sum of Rs. 15,000/- on cheque No. A/45 – 769942 dated10.2.77 drawn by the petitioner on the Bank of Ceylon, Borella.Summons was served on the petitioner on the 13th November 1980and the petitioner moved to file answer unconditionally setting outthe facts disclosing her defence. The matter was taken up for inquiryand on the 6th March 1981, the learned District Judge made ordergiving the petitioner leave to file answer on 15.5.81 on the conditionthat she deposits a sum of Rs. 7,500/-. This is the order that is beingcanvassed in these two applications.
58
Sri Lanka Law Reports
11982J 1 S.L.R
Learned Counsel for the respondent raised a preliminary objectionin the Leave to Appeal application No. 50/81, that it was out oftime, and submitted further that this Court would not exercise itsrevisionary powers ex mero motu or in Application No. CA. 1265/81,to grant relief to the petitioner.
The Leave to Appeal application is clearly out of time. The orderof the learned District Judge was made on the 6th March 1981, andin terms of the mandatory provisions of section 756 (4) of the CivilProcedure Code the application should have been made within 14days thereof. But it was filed only on the 20th April 1981-nearly amonth from the date of the expiration of the prescribed period.
The Leave to Appeal application first came up for hearing on10.7.81 and on the application of counsel for the respondent it wasre-fixed for hearing for the 5th August 1981. On that day it wasput off for argument for 8th September 1981 and was again re-fixedfor the 20th October 1981. It finally came up for hearing on the24th November 1981. On the 23rd of September 1981, theAttorney-at-Law for the petitioner filed an affidavit and sought toexplain the delay in filing the application. She stated that althougha motion was filed for the issue of certified copies of several documentson 9.3.81, the certified copies were issued to her from time to timeonly from the 15th March to the 10th April ’81. Incidentally the15th March 1981 was a Sunday and an examination of the certifiedcopies in the docket of the record LA 50/81 shows that the datestamp of the District Court of Colombo on P2, P3, P4 and theunmarked certified copy of the journal entries, is 16.3.81 and not15.3.81. True enough there was unavoidable delay in obtaining thecertified copy of the last document viz. the cheque till 10.4.81, butthe certified copy of the Order, P5 was obtained on 7.4.81 so thatthere was no reason why the application could not have been filedbefore 21.4.81, considering that altogether only 14 days are allowedfor the filing of the application and also taking into account the;,intervention of the Sinhala New Year public holidays.
The Attomey-at-Law for the respondent filed a motion in replystating that the petitioner’s Attomey-at-Law filed her affidavit only,after it was pointed out by counsel for the respondent in open Courton 5.8.81, that the application for Leave to Appeal was out of time.The affidavit of the Attomey-at-Law of the petitioner was filed in
CA
Thilaf’aratnum r. Etlirtsinghe (/.//.t/n/v. J.
59
Court only on the 23rd September, 1981 in the Leave , to Appealapplication 50/81, while the application for revision No. CA 1265/81bearing the same date as the affidavit, was filed much later on the23rd October, 1981.
The Leave to Appeal application No. 50/81 as stated earlier, isadmittedly out of time. Counsel for the petitioner however invitedthis Court to exercise its powers of revision ex mcro motu or.jnapplication No. 1265/81 and grant the petitioner relief under section759(2) of the Civil Procedure Code. Section 759(2) provides that
“in the case of any mistake, omission or defect on the part;of any appellant in complying with the. provisions of the.foregoing sections, the Supreme Court may. if it should beof opinion that the respondent has not been materiallyprejudiced grant relief on such terms as it may deem just.”
Learned counsel for the respondent submitted that section 759(2)deals only with appeals from a final judgment of an original Courtand not to applications for leave to appeal from an order of thatCourt and therefore this subsection was not applicable to the presentcase. In support of his contention he pointed out that the. word‘appellant' used in that subsection refers to an appeal filed againsta judgment. The ‘appellant’, he submitted, is a person who givesnotice of appeal under section 754(4) against a judgment of anoriginal Court and files his petition of appeal under section 755(3).Section 756(2) on the other hand relates to applications for leave toappeal against an order made in the course of a civil action and .theperson who makes the application, it is submitted, is called a.‘Petitioner’ and not an ‘Appellant’. But that very subsection to section756 does not support learned Counsel’s contention. The last sentence,!of that subsection describes a person who applies for Leave to Appeal,as an ‘Appellant’. Similarly subsections 4 & 6 of section 756 referto him an an ‘Appellant*.
A plain reading of section 759(2) makes it abundantly clear thatfor the purposes of that subsection,, no distinction is made betweenan appeal against a judgment of a Court or .an application for leave.,to appeal against an order of a Court, Subsection (2) tq, section. 75$)..gives the Supreme Court, now the Court of Appeal, the discretionto grant relief in appropriate cases, in the case of any mistake.
60
Sri Lanka Law Reports
[1982] 1 S.L.R
omission or defect made in complying with the provisions of theforegoing sections, (the. emphasis is mine.) The foregoing-sections ofthat chapter include both section 7^4,,which deals with appeals froma judgment or a decree of an original Court, and section 756 whichdeals with applications for leave to Appeal.
Learned Counsel for the respondent .next contended that section759 could only be invoked if the appeal is filed in time. It wassought to argue that this subsection does not cure any failure on thepart of an appellant to comply with the limitations as to time containedin sections 754(4), 755(3) and 756(4) of the Civil Procedure Code.But this argument is untenable in view of the .decision of the SupremeCourt in Vitana Vs. Weerasinghe and another, [1981] 1 S.L.R. Vol.I, S.C.Part II, page. 52, which was a case of delay on the part ofan appellant to file his petition -of appeal within 60 days prescribedin section 755(3).
Wanasundera, J., said at page 56:
“If section 765 has no application, we have to turn ourattention to the provisions of section 759(2) which enablesrelief to be given ‘in the case of any mistake, omission 6rdefect on the part of. any appellant in complying with theprovisions of the foregoing sections! It would be sufficient hereto state that these provisions are wide enough to apply to thepresent case, without attempting to rule on the full scope ofthis section.”
Section 765 which deals with appeals notwithstanding lapse of timecan only be invoked where the provisions of sections 754 and 756have not been observed. In the present case where the applicationfor leave to Appeal was out of time, the petitioner could have soughtrelief under section 765 of the Civil Procedure Code. Counsel forthe respondent therefore contended that where a remedy is availableby way of appeal, this Court would not exercise its revisionary powersin granting relief.
But the trend of recent decisions is that the Court of Appeal hasthe power to act in revision even though the procedure by way ofappeal is available, in appropriate cases. In Rustom Vs. Hapangama& Co., (1978-79, 2 S.L.R. Vol. II – C.A. Part VIII, page 225, it
04
Thilagaratnam v. Edirisinghe (L.H. de Alwis, J.)
61
was held that the powers by way of revision conferred on the appellateCourt are very wide and can be exercised whether an appeal hasbeen taken against an order of the original Court or not. However,such powers would be exercised only in exceptional circumstanceswhere an appeal lay and as to what such exceptional circumstancesare is dependent on the facts of each case. See also Fernando Vs.Fernando, 72 N.L.R. page 749 and Atukorale Vs. Samynathan, 18C.L.R. 200.
The question now is whether exceptional circumstances have beenmade out by the petitioner for the exercise by this Court of itsrevisionary powers….
.•'* ft;
Counsel for the petitioner submitted that there are blatant errorsof law and procedure apparent on the face of the record and theyamount to exceptional circumstances. He submitted that in the .presentcase the copy of the cheque sued upon or its contents have not beenfurnished with the summpns served on the petitioner, as providedfor in form No. 19 issued' under section 703 of the Civil ProcedureCode. Form No. 19, requires that the instrument sued on be copiedout and where it is a negotiable instrument and carries endorsements,the endorsements too should be set out. A certified copy of thesummons was hied marked PI, and it does not reproduce the contentsof the cheque sued upon with the endorsements made thereon.
The cheque is dated 10.3.1977. The figure ‘3* appears to be analteration for ‘2’. There is an endorsement by the bank' in red inkthat the alteration in the date requires the drawer’s confirmation.The endorsement made by the Bank places it beyond any doubt thatthe figure ‘2’ has been altered into ‘3’. The cheque in question thusdiscloses an obvious alteration in regard to its date. The petitionerin her affidavit states that-the cheque was dated 10.2.77 and thatshe gave it to her father for no consideration. Her father died onthe 19th of August 1977 and she alleges that respondent altered thedate of the cheque to 10.3.77 in order to enable him to present thecheque for payment within 6 months of the date of its making.
Learned counsel for the petitioner submitted that under section70S(2) of the Civil Procedure Code the learned District Judge hadno jurisdiction to issue summons on the defendant-appellant whenthe cheque sued upon was open to suspicion by reason of the
62
Sri Lanka Law Reports
11982/ 1 S.L.R
alteration. Section 705(2) reads as follows:
‘If the instrument appears to the Court to be properly stamped,and not open to suspicion by reason of any alteration orerasure or other matter on the face of it, and not to be barredby prescription, the Court may in its discretion make an orderfor the service on the defendant of the summons abovementioned.”
Learned counsel submitted that in view of the alteration in the{fate of the cheque which was apparent oh the face of the cheque,the learned Judge’s order in issuing summons on the petitioner wasmade without jurisdiction and is erroneous in law.
In Sinnathangam Ks. Meeramohideen, 60 N.L.R. 394, it was heldthat the Supreme Court possess: the power to set aside, in revision,ah erroneous decision of the District Court in an appropriate caseeven though an appeal against such decision has been correctly heldto have abated on the ground of non-compliance with some technicalrequirements in respect of the notice of security. T.S. Fernando, J,
said – “We do not entertain any doubt that this Court possess thepower to set aside an erroneous decision of the District Courtin an appropriate case even though an appeal against suchdecision has been correctly held to have abated. It only remainsfor us to examine whether there is a substantial question oflaw involved here and whether this is an appropriate case forus to exercise the powers of revision vested in this Court bysection 753 of the Civil Procedure Code.”
iff[Rustom Vs. Hapangama & Co., (supra) Vythialingam, J., said -“Where an order is palpably wrong and affects the rights ofa party also, this Court would exercise its powers of revisionto set aside the wrong irrespective of whether an appeal wastaken or was available.”
In Central Union Insurance Company Limited Vs. Boteju, 56 N.L.R.149, it was held by the Supreme Court that a condition precedentto the issue of summons in an action by summary procedure on aliquid claim is that the document on which the action is based shouldbe properly stamped, as required by section 705(2) of the CivilProcedure Code. In that case the document bore no stamp at all.
CA
Thilagaratnam v. Edirisinghe (L.H de Alwis, J.)
63
In the present case the learned Judge has given his mind to bothmatters urged by learned counsel for the petitioner. In his order herefers to the submissions of counsel for the defendant that thesummons did not have a copy of the cheque annexed to it and tothe submission of counsel for the plaintiff that the original chequetogether with a photostat copy of it was annexed to the Plaint. Thelearned Judge has evidently come to the conclusion that the failureto annex the cheque or give its contents in the summons in form19 is not a very material omission and I see no reason to disagreewith him. For, the petitioner always had the opportunity of examiningthe cheque or the photostat copy of it annexed to the plaint afterit had been filed in Court and could not have been prejudiced..
As regards the alteration in the date of the cheque the learnedJudge has considered this matter also. Ln. his order he states –
“I examined the photostat copy of the cheque today in regardto the allegation that the date of the cheque had.bep,n altered.Attprney-at-Law Mr. Parathalingam states that the Defendantmade the alteration and handed .it over to the plaintiff.Attorney-at-Law Mr. Kanagasunderam states that the alterationmust have been , made by the plaintiff. I have examined theaffidavit of the Defendant. The defendant docs not state inher affidavit the reason' why she gave the cheque to her father.On a consideration of the submissions made and the affidavitfiled I have a reasonable doubt in my mind as regards theright of the defendant to put forward her defence.".
What he no doubt meant to say was that he did not think thedefence was prima facie sustainable. It is true that the learned Judgehas examined the photostat copy of the cheque only at the laterstage of the inquiry and has expressed no definite opinion on thealteration in the date of the cheque in his order. But the necessaryimplication from the order he subsequently made against the petitioner,is that the alteration was not open to suspicion. It was undoubtedlyhis duty to have examined the cheque itself and satisfied himself inregard to the matters referred to in section 705(2) before he decidedto issue summons on the petitioner. But in this particular case hisfailure to do so has not prejudiced the substantial rights of thepetitioner or occasioned a failure of justice since his ultimate viewwas impliedly that the cheque was not open to suspicion and he has
64
Sri Lanka Law Reports
11982] 1 SLR
not refused the petitioner outright, leave to appear and defend theaction. In the circumstances I do not think this is an appropriatecase in which we should interfere with the order of the learnedDistrict Judge especially as the application for revision has beenmade very belatedly.
No exceptional circumstances thus have been made out by thepetitioner as to why this Court should exercise its powers of revisionex mero motu. As regards the Revision Application No. 1265/81itself, it has been made very belatedly. According to the motiondated 12.10.81 filed by the Attorney-at-Law for the respondent, itwas pointed out by Counsel for the respondent in open Court on5.8.81 that the application for Leave to Appeal was out of time.This statement has not been denied by the petitioner, so that eventhough the petitioner was well aware that her application for Leaveto Appeal was ou| of time, she took no prompt steps to file anapplication for revision until the 23rd October, 1981. The ordersought to be revised is dated 6.3.81 and in view of the inordinatedelay of over seven months to file the application for revision No.1265/81, it must be dismissed.
For the reasons given I dismiss both applications with costs fixedat Rs. 525/-
SENEVIRATNE,J. — L agree.
Applications dismissed.