NOTICE OF APPEAL- FAILURE TO CITE A PARTY- IS IT CURABLE
IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST
REPUBLIC OF SRI LANKA
In the matter of an Application for Leave to Appeal under
the provisions of the High Court of the Provinces (Special Provisions)
(Amendment) Act No. 54 of 2006
1.
S.M. Heenmenike,
2.
S.K.A. Priyanthe
Senanayake
3.
S.K.A. Chamila Kumari
Senanayake All of 1/27, Main Street,
Rambukkana.
SC Appeal No. 41/2012
SC HC CA LA No. 179/2011
Civil
Appellate High Court Appeal Vs.
No. 639/2009
DC Kegalle
Case No. 7692/Special 1.
Suraweera Aratchchilage Mangalika
Malkanthi
2.
Kaluaratchchilage Pushpa Kaluaratchchi Both of “Abaya Niwasa”
WalalgodaRambukkana Plaintiffs-Respondents-Respondents
Priyasath
Dep, PC, J
The Substituted- Defendant -Appellant- Appellants/ hereinafter referred to as “Appellants”) filed a Leave to Appeal Application against the judgment dated 25.04 2011 of the Provincial High Court (Civil Appeal) of the Sabaragamuwa Province holden at Kegalle in Case No. SP/HCCA/KAG/639/2009 and obtained leave to appeal from this court.
The Substituted- Defendant -Appellant- Appellants/ hereinafter referred to as “Appellants”) filed a Leave to Appeal Application against the judgment dated 25.04 2011 of the Provincial High Court (Civil Appeal) of the Sabaragamuwa Province holden at Kegalle in Case No. SP/HCCA/KAG/639/2009 and obtained leave to appeal from this court.
The Plaintiffs-Respondents-Respondents (hereinafter
referred to as “Respondents”) instituted action in the District Court of
Kegalle in Case No. 7692/Spl against the Defendant-Appellants. When the action
was proceeding in the District Court the 2nd Plaintiff passed away
and the 1st Plaintiff who is the mother of the 2nd
Plaintiff filed a petition and an affidavit dated 15th July 2008 and
moved to substitute her in place of the deceased 2nd Plaintiff. The
Court allowed the substitution and substitution was effected on 02.07.2008.
This is reflected in page 55 of the Appeal Brief. The Court ordered the 1st
Plaintiff Respondent to file an amended caption. However, this was not complied
with. Thereafter trial proceeded and the judgment was delivered in favour of
the Plaintiffs.
The Defendants-Appellants appealed against the judgment of
the District Court to the Provincial High Court (Civil Appeals). In the Notice
of Appeal and in the Petition of Appeal, the Appellants had cited the 2nd
Plaintiff who is dead as a Respondent. The Plaintiff-Respondents at the hearing
of the appeal took up a preliminary objection to the effect that the Notice of
Appeal and Petition of Appeal filed by the Defendants are defective for the
reason that the 2nd Respondent named therein was dead on the date of
filing of the appeal.
The Appellant submitted that in the District Court it was
the 1st Plaintiff-Respondent- Respondent who filed papers to
substitute her in place of the deceased 2nd Plaintiff who is her
daughter. The 1st Plaintiff -Respondent-Respondent had failed to
amend the caption as ordered by court. The Appellant submitted that 1st Plaintiff-Respondent- Respondent after
the substitution became the only Respondent and she was properly cited as the
Respondent in the appeal and there is no prejudice caused.
The Honourable High Court judges held that the Petition of Appeal is not
in conformity with 758(1) of the Civil Procedure Code. 758(1) deals with the
language and the form of the appeal and it reads thus;
758 (1) The petition of appeal shall be distinctly written
upon good and suitable paper, and shall contain the following particulars:-
(a)
the name of the court
in which the case is pending;
(b)
the name of the
parties to the action;
(c ) the name of the
Appellant and of the respondent:
(d)
The address to the
Court of Appeal;
(e)
A plain and concise
statement of the grounds of objection to the judgment, decree or order appealed
against - such statement to be set forth in duly numbered paragraphs;
(f)
A demand of the form
of relief claimed.
The Respondents heavily
relied on the decision of the Court of Appeal in the case of Wimalasiri and another vs. Premasiri (2003) 3 SRI
LR page 330 where it was held that:
“Default of citing a person not living as the Respondent in
the Notice of Appeal and the Petition of Appeal which resulted from the
negligence of the Defendant- Appellant and the Registered Attorney-at-Law would
render notice and the Petition of Appeal void ab
initio. The defect being incurable the Defendant- Appellant cannot seek
relief under section 759(2)”.
“There is a distinction between mistakes or inadvertence of
an Attorney-at-law or party and negligence, a mere mistake can generally be
excused but not negligence.”
The learned High Court Judges upheld the preliminary
objections and rejected the appeal. The Appellants filed a Leave to Appeal
Application and obtained leave on following questions of law.
1.
Has the Civil
Appellate High Court misinterpreted the judgment in the case of Wimalasiri Vs. Premasiri (2003) 3 ,Sri.LR 330, in
applying the same to the facts of the case at hand ? and
2.
In the aforesaid
context has the Civil Appellate High Court misdirected in law in coming to the
finding that, the failure to name the 2nd Defendant Respondent a
party to the Appeal, is an incurable defect which cannot be allowed to be
rectified or relief could be sought under section 759(2) of the Civil Procedure
Court ?
The Appellants submit that
the facts in this case are different from the facts in the case of Wimalasiri vs. Premasiri (Supra) which was relied
upon by the Respondents. The Appellants submited that the Hon. Judges of the
High Court misinterpreted the judgment when it applied the same principles to
the present case. In Wimalasiri vs. Premasiri
there was only one defendant and he was dead at the time of instituting the
action. In the present case there are two Plaintiffs and the 2nd
Plaintiff died pending the action. 1st Plaintiff was duly
substituted in the place of the deceased 2nd Plaintiff. The Learned
Counsel for the Appellants submits that no prejudice would be caused as the 1st
Plaintiff-Respondent is cited as a party and she is one and the same
person substituted in the place of the deceased 2nd Plaintiff.
Therefore, appeal could proceed against her despite the fact that she was not
cited as the 2nd Substituted Plaintiff-Respondent.
The Appellant submitted that though substitution had taken
place in the District Court, the Plaintiff-Respondent had failed to amend the
caption as ordered by Court. The initial mistake was done by the Respondent and
the Respondent is precluded from raising the objection. The learned Counsel for
the Plaintiff -Respondent submitted that there is no legal requirement to amend
the caption though as a matter of practice it is done. In support of his
argument he cited section 394 of the Civil Procedure Code. According to this
section what is required is for the court to ‘cause an entry to that effect to
be made on the record and proceed with the action’.
The Learned Counsel for the Respondents submitted that the
1st Plaintiff represents her interest as the 1st Plaintiff.
As the 2nd substituted Plaintiff her capacity is different as she
represents the estate the deceased 2nd Plaintiff. Therefore, in the
caption her name should also be included as a party substituted in the place of
the deceased 2nd Plaintiff.
The learned Counsel for the Respondent cited cases where Supreme Court
held that citing a deceased person as a party or failure to cite all the
parties cited in the court below render the appeal ab initio void.
In SC SPL LA No. 39/2010,
(Supreme Court Minutes dated 14.05.2010) then, Chief Justice J.A.N. de Silva
(Sripavan J, and Ekanayake J. agreeing) dismissed the application upholding a
preliminary objection that the application is defective for the reason that a
dead person has been made a party.
In Illangakoon Mudiyanselage
Gnanathileke Illangakoon vs. Anula Kumarihamy SC HC LA 277/11 (SC
Minutes of 21.01.2013) Sripavan J, (Hettige, PC J and Dep PC J agreeing) upheld
the preliminary objection and dismissed the Plaintiff’s leave to appeal
application for noncompliance with Rule 28(2) of the Supreme Court Rules of
1990. In that case it was held that the Plaintiff has failed to set out the
full title in the application which includes all the persons cited as parties
in the proceedings below.
These two cases refer to leave to appeal applications filed
against the judgments of the High Court (Civil Appeal) to the Supreme Court for
which Supreme Court Rules of 1990 applies. Therefore these two judgments are
not relevant to the present appeal. In the case before us, we are dealing with
an appeal from the District Court to the High Court (Civil Appeal). The
sections applicable to this case are 758 ,759 (2) and 770 of the Civil
Procedure Code.
The Learned Counsel for the Appellants submitted that the
mistake in citing a deceased party and the failure to name the substituted 2nd
Plaintiff as a Respondent is a curable defect under section 759(2) of the Civil
Procedure Code. The section 759(2) reads thus:
759(2) In the case of any mistake, omission or defect on
the part of any Appellant in complying with the provisions of the foregoing
sections,(other than a provision specifying the period within which any act or
thing is to be done) the Court of Appeal may, if it should be of opinion that
the Respondent has not been materially prejudiced, grant relief on such terms
as it may deem just.
The decision of the Supreme Court in Nanayakkara vs. Warnakulasuririya [1993] 2 Sri.
L.R 289 would be relevant to the present case. In this case the notice of
appeal was accompanied by security for the Respondent’s costs of appeal as
required under section 755(2).However there was a failure to hypothecate the
sum of money tendered by bond as required under section 755 ( C ) of the Civil
Procedure Code. In the said case Kulatunga, J held that:
“ The power of the Court to grant relief under section
759(2) of the code is wide and discretionary and is subject to such terms as
the Court may deem just. Relief may be granted even if no excuse for
non-compliance is forthcoming. However, relief cannot be granted if the Court
is of opinion that the respondent has been materially prejudiced in which event
the appeal has to be dismissed.”
In the course of the judgment in the said case Kulatunga,
J.at page 293further observed that :-
“ In an application for relief under section 759(2), the
rule that the negligence of the Attorney-at-Law is the negligence of the client
does not apply as in the case of default curable under sections 86(2), 87(3)
and 771 of the Civil Procedure Code. Such negligence may be relevant, but it
does not fetter the discretion of the Court to grant relief where it is just
and fair to do so.”
In Keerthisiri vs Weerasena [1997] 1 Sri.LR 70 , the
Appellant failed to duly stamped the notice of appeal as required under section
755 (1) of the Code. G.P.S.de Silva CJ held that:
“What is required to bar relief is not any prejudice but
material prejudice, i.e. detriment of the kind which the respondent cannot
reasonably called upon to suffer. In this instant case there is nothing to
suggest that the respondent has been materially prejudiced. I accordingly hold
that the Court of Appeal had jurisdiction to grant relief in terms of section
759(2) of the present Code.”
The section 770 of the Civil
Procedure Code which is reproduced below is also applicable to this case.
770. “ If, at the hearing of the appeal, the respondent is
not present and the court is not satisfied upon the material in the record or
upon other evidence that the notice of appeal was duly served upon him or his
registered attorney as herein before provided, or if it appears to the court at
such hearing that any person who was a party to the action in the court against
whose decree the appeal is made, but who has not been made a party to the
appeal, the court may issue the requisite notice of appeal for service.”
In KiriMudiyanse vs. BandaraMenika 76 NLR Page 371 an
objection was taken that some of the parties in the lower court were not joined
as Respondents in the Notice of Appeal and in the Petition of Appeal. It was
held that:
‘The Supreme Court had the discretionary power under section 770 of the
Civil Procedure Code to direct the 1st to the 3rd and the
6th to the 8th defendants to be added as respondents. The
exercise of the discretion contemplated in section 770 is a matter for the decision
of the judge who hears the appeal in the particular case. Furthermore, it
should be exercised when some good reason or cause is given for non-joinder.
The discretion which is an unfettered one must, of course, be exercised
judicially and not arbitrarily and capriciously.
In Jayasekera andLakmini and others [2010} 1Sri.L.R
at page 41 there was a failure to comply with sections 755(1), 755(2) and
758(1) of the Civil Procedure Code. The Appellant had failed to :-
(a)
to name the parties to
the action,
(b)
to name all the
respondents to the action,
( c) to give required
notices of this appeal to the 1st 2nd and 3rd
defendants, and to submit proof thereof.
(d) to provide
security for the 1st 2nd and 3rd defendants
costs of appeal?
In Jayasekera
and Lakmini (supra). Chandra Ekanayake, J.,
cited with approval the judgments in Nanayakkara vs. Warnakulasuririya(supra) Keerthisiri vs
Weerasena(supra) and KiriMudiyanse vs. BandaraMenika(supra) and held :
“ In the case at hand the notice of appeal had been filed by
the registered attorney-at-law and the failure to comply with section 755
appears to be a negligence on his part - such negligence though relevant does
not fetter the discretion of Court to grant relief when it appears that it is
just and fair to do so”- what is required to bar relief under Section 759(2) is
not any prejudice but material prejudice - I am inclined to the view that the
Plaintiff being the only respondent named in the notice of appeal would not be
materially prejudiced by the grant of relief under section 759(2).
Having considering the
authorities cited above, I hold that failure to comply with section 755(1) by
not citing the 2nd Substituted Plaintiff as a Respondent in the
Notice of Appeal and in the Petition of Appeal is a curable defect under
sections 759 (2) and section 770 of the Civil Procedure Code. I set aside the
judgment in the High Court ( Civil Appeal), Kegalle in case No. 639/2009.
I direct the learned judges of the High Court ( Civil
Appeal) Kegalle to delete the name of the deceased 2nd Plaintiff-
Respondent and add the 2nd Substituted- Plaintiff as the 2nd
Substituted- Plaintiff-Respondent and proceed to hear the appeal on merits and
deliver judgment according to law.
I order the 1st Plaintiff- Respondent-Respondent to pay Rs.
50 000/= to the Defendent- Appellant- Appellant as costs of this application.
Judge of the Supreme Court
Anil Goonerathne J, I agree.
Judge of the Supreme Court
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