039-SLLR-SLLR-1997-2-VANIK-INCORPORATION-LTD-v.-JAYASEKARA.pdf
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Vanik Incorporation Ltd. v. Jayasekara
365
VANIK INCORPORATION LTD.v.
JAYASEKARA
COURT OF APPEAL.
EDUSSURIYA, J.
A. (REV) 198/97.
C. COLOMBO 4827/SPL.
MAY 27, 1997.
Enjoining Order – Revision – Applicability of section 666 of the Civil ProcedureCode as amended by Act, No. 19 of 1988 – Revisionary powers – Miscarriage ofjustice – Is there a violation of a fundamental rule of procedure?
The defendant-petitioner seeks to set aside the Order issuing an enjoining orderon the ground that the learned District Judge acted illegally in not hearing thepetitioner’s Counsel who was present in Court prior to issuing the said enjoiningorder.
The plaintiff-respondent, took the objection that, the present application should bedismissed in as much as the petitioner had failed to avail himself of section 666 ofthe Act, No. 79 of 1988, to have the enjoining order set aside.
Held:
Revisionary powers should be exercised where a miscarriage of justice hasoccurred due to a fundamental rule of procedure being violated, but only when astrong case is made out amounting to a positive miscarriage of justice.
Even if the learned District Judge erred in proceeding on the basis that thedefendant-petitioner could not be heard because the plaintiff-respondent wasentitled to support an application for enjoining order ex parte, no prejudice hasbeen caused to the petitioner. The impugned Order issuing the enjoining orderdoes not suggest that there was an end to the matter and that the learned DistrictJudge is not prepared to hear the petitioner, if he came under section 666 to havethe enjoining order set aside, even now it is open to the defendant-petitioner toavail himself of section 666.
If it is contended that had the petitioner been heard, the enjoining order would nothave been issued, that has been done and is over. Therefore, that cannot now becorrected, as the meeting scheduled for 05.03.97 was stayed.
In the circumstances even though the learned Additional District Judgerefusing to hear the Counsel may be termed an illegality, this is not a case inwhich Court should exercise its revisionary powers.
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APPLICATION in revision from the Order of the District Court of Colombo.
Cases referred to:
Perera v. Muthalib, 45 NLR 412.
Attorney-General v. Podi Singho, 51 NLR 385.
Finnegen v. Galadari Hotels (Lanka) Ltd., [1989] 2 SLR 272.
K.N. Choksy P.C. with Nigel Hatch for defendant.
Wijedasa Rajapakse with Kurera de Zoysa and Dhammika Abeygunawardena forplaintiff-respondent.
Cur. adv. vult.
June 29, 1997.
EDUSSURIYA, J.
This is an application to this Court to act in revision and set asidethe order of the learned Additional District Judge of Colombo dated5th March, 1997 issuing an enjoining order as prayed for in paragraph(e) of the prayer to the plaint dated 5th March 1997, on the groundthat the learned Additional District Judge acted illegally in nothearing the petitioner’s Counsel who was present in Court, prior toissuing the said enjoining order.
At the hearing of this application the respondent’s Counsel tookthe objection that the petitioner’s present application should bedismissed in as much as the petitioner had failed to avail himself ofthe procedure laid down in section 666 of the Civil Procedure Codeas amended by Act, No. 79 of 1988 to have the enjoining order setaside.
On the question of what exactly took place when the petitioner’sinstructing Attorney sought to file proxy, the only material available tome are (1) the affidavit filed on behalf of the petitioner in this Court,(2) the affidavit filed by the plaintiff-respondent in the Supreme Courtwhen the plaintiff-respondent sought special leave to appeal from theSupreme Court against the interim order issued by the Court ofAppeal and (3) the proceedings of 05th March, 1997.
The plaintiff-respondent to this application has stated in heraffidavit that when the petitioner's instructing Attorney moved to fileproxy he was told by Court that he could do so after the plaintiff-
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respondent was heard. That, thereafter, although the instructingAttorney informed Court that he had retained Counsel Mr. Kanag-Iswaran, that Mr. Kanag-lswaran was not in Court. That, thereafter,although the instructing Attorney was told that he can file proxy theinstructing Attorney informed Court that he did not wish to file proxyand that the learned Additional District Judge made the impugnedorder subsequently.
However, the defendant-petitioner’s affidavit sets out that when theinstructing Attorney sought to file proxy and moved that he be heardthough Counsel Nigel Bartholermeuz, the Judge disallowed theapplication.
That, after the plaintiff-respondent’s counsel had madesubmissions, the instructing Attorney once again sought to tender theproxy and be heard but the Judge said that the defendant-petitioner’sproxy could be tendered and he be heard only after the order, andthat thereafter the instructing Attorney did not tender the proxy.
The proceedings of the relevant date only show that the learnedAdditional District Judge had informed the defendant-petitioner’sinstructing Attorney that he could tender the proxy after the ex parteapplication is made. The proceedings therefore are not helpful inascertaining exactly what happened.
It so happens in Courts almost every day that some Attorneys-at-Law and Counsel make submissions and address Court in Sinhalawhile others in the same case address Court in English and thestenographers leave out parts of the submissions made, in English,since the Stenographers in the District Court are conversant only inSinhala.
Only last week I dictated an order in English and almost at the veryend Counsel for the respondent made a further submission which Itold the stenographer to record. Then the Counsel after havingstarted out to repeat his submission stopped half way and said itwas not necessary. I then, told the stenographer to score that off andvery much later on the following day I came to know that thestenographer had struck-off my entire order up to that point and I leftit at that rather than have someone for his benefit saying that I
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dictated the order later. This is due to the so called “Englishstenographers" available being hardly competent and notunderstanding what we dictate. Thus, as hereinbefore mentioned, itappears that what the defendant-petitioner's instructing Attorney saidhas not been recorded because it may have been said in English.
In the circumstances, I will for the present proceed assuming onlyfor the purpose of this order that the learned Additional District Judgedid not allow the defendant-petitioner’s instructing Attorney to fileproxy and consequently did not allow the defendant-petitioner to beheard though Mr. Bartholermeuz, although the plaintiff-respondentdoes not concede this and further it is her position that thedefendant-petitioner's instructing Attorney wanted CounselMr. Kanag-lswaran to be heard but that Mr. Kanag-lswaran was not inCourt.
Learned Counsel for the petitioner drew the attention of this Courtto Article 145 of the Constitution and submitted that this Court isempowered to call for a record ex mero motu or on application andmake any order thereon in the interests of justice and submittedfurther that the 1978 Constitution conferred on the Court of Appealmuch wider powers than it had up to that time.
Counsel also drew attention of this Court to the amended section753 of the Civil Procedure Code, and contended that specialcircumstances warranting the exercise of the revisionary powers ofthis Court existed in that the impugned order is illegal and invited theCourt to quash the impugned order on the ground of illegality.Learned Counsel for the petitioner also referred to the cases ofPerera v. Muthalib0), Attorney-General v. Podi Singho<2) and Finnegenv. Galadari Hotels (Lanka) LtdP in support of his contentions.
In Perera v. Muthalib (supra) Soertsz, J. set out that the revisionarypowers of the Supreme Court are not limited to those cases in whichno appeal lies or in which no appeal has been taken for some reasonand that the Court would exercise revisionary powers where therehas been a miscarriage of justice owing to the violation of afundamental rule of procedure, but that this power would beexercised only when a strong case is made out amounting to a
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positive miscarriage of justice. In that case the bond of surety hadbeen forfeited without an inquiry.
In the case of Attorney-General v. Podi Singho (supra) Dias, J.held that even though the revisionary powers should not be exercisedin cases when there is an appeal and was not taken, the revisionarypowers should be exercised only in exceptional circumstances suchas (a) miscarriage of justice (b) where a strong case for interferenceby the Supreme Court is made out or (c) where the applicant wasunaware of the order. Dias, J. also observed that the Supreme Courtin exercising its powers of revision is not hampered by technical rulesof pleading and procedure.
That was a case where a sentence below the minimum sentenceprescribed by law had been imposed.
Although both those cases were decided long before the presentConstitution was promulgated (incorporating Article 145) and theamendment to section 753 of the Civil Procedure Code in 1988, theSupreme Court expressed the view that its revisionary powers shouldbe exercised where a miscarriage of justice has occurred due to afundamental rule of judicial procedure being violated, but only whena strong case is made out amounting to a positive miscarriage ofjustice. A common feature in both those cases was that there was noprocedure available to the aggrieved party, by which he could seekto have that order set aside or varied in the original Court itself. Sothat, although the aggrieved parties had failed to appeal, theSupreme Court exercised its powers of revision due to the reasonsmentioned in those judgments. In the present case too it is thecontention of the Petitioner’s Counsel that there has been a violationof a fundamental rule, that the defendant-petitioner should have beenheard prior to the enjoining order being issued, as the defendant-petitioner was present and that is an illegality, although the AdditionalDistrict Judge was empowered to grant an injunction ex parte in theabsence of the defendant-petitioner. However it was not contendedthat a miscarriage of justice had occurred.
In the case of Finnegen v. Galadari Hotels (Lanka) Ltd. (supra), theCourt had suspended an enjoining order on the ex parte application
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of the party who had been enjoined, and it was held that the merepresence of the junior Counsel appearing for the plaintiff and statingthat he came to know about the application only that morning and hehad no papers with him and moving for a postponement did notmake the proceedings inter partes. The Supreme Court held that theplaintiff was questioning the legality of that order on fundamentalissues including the failure to hold a fair inquiry amongst other thingsand were exceptional circumstances warranting the exercise of therevisionary jurisdiction of the Court of Appeal.
The legality of the learned District Judge in that case, makingorder suspending the enjoining order issued at the instance of thedefendant, without giving the plaintiff an opportunity of being heardwas questioned in that case.
On the question whether the plaintiff could have maintained theapplication for revision in the Court of Appeal without first seeking tohave the order suspending the enjoining order canvassed before theDistrict Court, both Bandaranayake, J. and Kulatunge, J. observedthat as the District Court had formed an opinion ex parte on thefundamental issue of the maintainability of the action without givingthe plaintiff an opportunity of being heard, and thereafter fixed thecase to be called on the date on which notice of the application forinterim injunction was returnable, suggested that the Court was notready and willing and did not intend to hear the plaintiff on thequestion of the suspension of the enjoining order, the plaintiff wasentitled to come by way of revision to the Court of Appeal without firstcanvassing that order before the District Court.
In the present case if at all, the learned Additional District Judgehas erred in proceeding on the basis that the petitioner could only beheard after the enjoining order is granted. However it must be bornein mind at this juncture that, as hereinbefore mentioned the affidavitsof the petitioner and the respondent are at variance and theproceedings of 5th March, 1997 too do not bear out what is stated inthe petitioner’s affidavit but sets out only that the petitioner can fileproxy after the plaintiff-respondent’s application. The proceedings donot state that the petitioner’s proxy would be accepted after an orderis made on the plaintiff-respondent’s application. There is also the
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deference in the respondent’s affidavit regarding the petitioner'sregistered Attorney mentioning that President’s Counsel Kanag-Iswaran was appearing for the petitioner and Mr. Kanag-lswaran notbeing in court at that time, whereas the petitioner’s affidavit statesthat the petitioner’s registered Attorney stated that Counsel NigelBartholemeuz was appearing for the petitioner. So that even if thelearned Additional District Judge erred in proceeding on the basisthat the defendant-petitioner could not be heard because the plaintiff-respondent was entitled to support an application for enjoining orderex parte no prejudice has been.caused to the petitioner, unlike in theGaladari case (supra) where the Court expressed its view on a matterwhich should have been decided at the trial and also made whatappeared to be a final order regarding the suspension of theenjoining order suggesting that there was an end to the ex parteenjoining order matter. Further, the impugned order issuing theenjoining order in this case does not suggest that there was an endto the matter and that the learned Additional District Judge is notprepared to hear the petitioner if he came under section 666 of theCivil Procedure Code to have the enjoining order set aside, even nowit is open to the petitioner to avail himself of section 666 of theCivil Procedure Code. If it is contended that had the petitioner beenheard the enjoining order would not have been issued, that has beendone and is over. Therefore that cannot now be corrected as themeeting scheduled for 5th March, 1997 was stayed. In thecircumstances even though the learned Additional District Judgerefusing to hear the petitioner’s Counsel may be termed an illegality, itis my view that this is not a case in which this Court should exerciseits revisionary powers. The application is dismissed with costs fixedas Rs. 3150/-.
Application dismissed.