HON. P. PADMAN SURASENA, J (P/CA) section 66 proceedings

 KALINGA EDWIN GUNATHILAKA VS.  HON ATTORNEY GENERAL

 

HON. P. PADMAN SURASENA, J (P/CA)

C A (PHC) 170 / 2010
Provincial High Court of Western
Province (Kalutara)
Revision Application No. 06 / 2010
Primary Court of Matugama
Case No. 15/2009

In the matter of an appeal against judgment of Provincial High Court  exercising its revisionary jurisdiction. 

Kalinga Edwin Gunathilaka,
Keeranthidiya,
Nauththuduwa.

2nd PARTY - PETITIONER - APPELLANT

Vs

1. Officer in charge,
Police Station,
Matugama.

COMPLAINANT - RESPONDENT - RESPONDENT

2. Mayanthuge Sunethra Jayasiri,
Keeranthidiya,
Nauththuduwa.

1st  PARTY - RESPONDENT­
RESPONDENT

3. Hon Attorney General,
Attorney General's Department,
Colombo 12.

RESPONDENT - RESPONDENT

Before:  P. Padman Surasena J (P/CA)
              K K Wickremasinghe J

Counsel : 2nd  Party - Petitioner - Appellant is absent and unrepresented.
                K V Sirisena for the 1st Party - Respondent - Respondent.

Decided on: 2018 - 02 - 28

JUDGMENT

P Padman Surasena J (P/CA)

Learned counsel for the 1st Party Petitioner Appellant agreed when this  case came up on 2017-07-28 before us, to rely fully on his written  submissions. He requested this Court to pronounce the judgment after  considering the written submissions. Therefore this judgment would be  based on the material adduced in the pleadings and written submissions.  

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The Officer in Charge of Police Station, Welipenna filed an information in terms of section 66 (1) (a) in the Primary Court of Mathugama reporting that a dispute between the 2nd  referred to as the Appellant) and the 1st party Petitioner - Appellant (hereinafter party Respondent - Respondent  (hereinafter referred to as the Respondent) pertaining to a road way had  arisen and that dispute would result in a breach of peace.

Learned Primary Court Judge after inquiry pronounced his order on 2010-02-22 holding that the Respondent was entitled to use the disputed right of  way.  

The Appellant thereafter made an application for revision to the Provincial High Court of the Western Province holden at Kalutara against the order of  the learned Magistrate.

Perusal of the judgment dated 2011-09-26 pronounced by the learned Provincial High Court Judge shows that the Appellant has failed to serve  copies of the documents produced marked P2, P3, P4, P5, P6 and P7  on the Respondent.

It appears that the Appellant has not explained as to why he could not provide the above material along with his application. He has neither

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undertaken nor sought leave of Court to tender the said documents even at a subsequent occasion. Admittedly learned Primary Court Judge had  considered these documents when he made the impugned order. 

Thus, it is clear that the Respondent has had no opportunity of considering these documents in order to formulate arguments in preparation of their  case.

In addition to the above ground the learned Provincial High Court Judge has also held that there is no exceptional circumstance to invoke the  revisionary jurisdiction of the Provincial High Court.

It is appropriate at this juncture to turn to the rules relevant to this issue.

Rule 3 (1) (a) ¹ states as follows:

Every application made to the Court of Appeal for the exercise of the  powers vested in the Court of Appeal by Articles 140 or 141 of the  Constitution shall be by way of petition, together with an affidavit in support of the averments therein, and shall be accompanied by the  originals of documents material to such application (or duly certified copies  thereof) in the form of exhibits. Where a petitioner is unable to tender any

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¹Court of Appeal (Appellate Procedure) Rules 1990

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such document, he shall state the reason for such inability and seek the leave of the Court to furnish such documents later. Where a petitioner fails  to comply with the provisions of this rule the Court may, ex mere mortu or  at the instance of any party, dismiss such application. 

(b) Every application by way of revision or restitutio in intergrum under Article 138 of the constitution shall be made in like manner together with  copies of the relevant proceedings (including pleadings and documents  produced), in the Court of First Instance, tribunal or other institution to  which such application relates ............. " 

.............."

(13) It shall be the duty of the petitioner to take such steps as may be necessary to ensure the prompt service of notice, and to prosecute his  application with due diligence. 

Learned Provincial High Court Judge has referred to the case of Kiriwanthe  and another Vs Nawarathne and another2.

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² 1990 (2) S L R 393

This case was decided on then applicable rule 46 of the Supreme Court Rules of 1978. One has to be mindful of the fact that this rule3 did not  specifically provide for dismissal for non- observance and therefore has no  direct application to the instant case in which the issue is a question of  interpretation of  Rule 3(1) (a)4 where it has specifically provided that the  Court may, ex mere mortu or at the instance of any party, dismiss such  application Where a petitioner fails to comply with the provisions of this   rule.

In the case of Shanmugawadivu Vs Kulathilake5  did not  the Supreme court has  held as follows " ....... the new Rules permit an applicant to file documents  later, if he has stated his inability in filing the relevant documents along  with his application, and had taken steps to seek the leave of the Court to  furnish such documents. In such circumstances, the only kind of discretion  that could be exercised by Court is to see whether and how much time  could be permitted for the filing of papers in due course. 

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³ Rule 46 of the Supreme Court Rules of 1978.
⁴Court of Appeal (Appellate procedure) Rules 1990
⁵2003 (1) S L R 216

Our courts have consistently held that the compliance of these rules are  mandatory. There is no acceptable reason as to why the Appellant could  not have complied with this rule at the proper time.

The relevant documents have been considered by the learned Primary Court Judge and hence is very much material for the maintainability of this revision application. 

In these circumstances, we see no reason to interfere with the findings of  the learned High Court Judge. Thus, we decide that this appeal should stand dismissed. 

PRESIDENT OF THE COURT OF APPEAL

K K Wickremasinghe J

I agree,

JUDGE OF THE COURT OF APPEAL