Revision in High Court dismissed - Revisionary jurisdiction of the Court of Appeal- When applicable ?- Discretionary remedy- Uberrima fides towards Court- Exceptional circumstance - Have to be pleaded?

 

SIRIPALA V LANEROLLE [CA]                   

                  2012 – SLR- Volume 1-Page 105

COURT OF APPEAL

IMAM.J SARATH DE ABREW.J

CA PHC APN 101/2007, MC GALLE 86042, HCRA601/07

AUGUST 30,31/2007, SEPTEMBER 12/2007, OCTOBER 18/2007

 

Primary Courts Procedure Act- section 66- Order of Magistrate's Court- Revision in High Court dismissed - Revisionary jurisdiction of the Court of Appeal- When applicable ?- Discretionary remedy- Uberrima fides towards Court- Exceptional circumstance - Have to be pleaded?

The petitioner Instituted action in terms of section 66 of the Primary Courts Procedure Act. Action was dismissed. The Revision application filed in the High Court was also dismissed. The petitioner thereafter moved in Revision in the Court of Appeal. On an objection- lodged that Revision does not lie.

Held:

(1) Revisionary power is a discretionary power and its exercise cannot be demanded as of right unlike the statutory remedy of appeal.

(2) Revision would lie if

(i) aggrieved party has no other remedy

(ii) if there is, then revision would be available if special circumstances could be shown to warrant it .

(iii) Party must come to court with clean hands and should not have contributed to the current situation.

(iv) he should have complied with the law at that time

(v) acts should have prejudiced his substantial rights

(vi) acts should have occasioned a failure of justice.

(3) General principles that have emerged from a galaxy of authorities is that revision will not lie where an appeal or other statutory remedy is available.

(4) Failure to avail himself of the alternative remedy of appeal would not necessarily be a bar to Invoking the revisionary powers provided there are exceptional circumstances.

(5) Presence of exceptional circumstances by itself would not be sufficient If there is no express pleading to that effect in the petition whenever an application is made invoking the revisionary jurisdiction of the Court of Appeal.

(6) Petitioner has neither disclosed nor expressly pleaded exceptional circumstances that warrant intervention by way of revision.

Per Sarath de Abrew, J .

it is a cardinal principle in revisionary jurisdiction that In order to invoke discretionary, revisionary powers the petitioner shall make a full disclosure of material facts known to her and there by show uberrima fides towards Court. Deliberate non disclosure is fatal.

APPLICATION in Revision from an order of the High Court of Galle.

Cases referred to :

1. T. Varapragasam and another v. S. A. Emmanual CA931/84 (Rev) CAM 24.7.1991

2. Thilagaratnam v. E.A.P. Edirisinghe 1982 - 1 Sri LR 56

3. Camillus Ignatius v. OLC Uhana and another - CA Rev. 907/89

4. M . A. Sirisena v. C. D. Richard Arsala and others - CA 536/84 CAM 24.10.1990

5. Hotel Galaxy Ltd. v. Mercantile Hotel Management Ltd. - 1987 1 Sri LR 05

6. Urban Development Authority v. Ceylon Entertainments Ltd. -CA 1319/2001 CAM 5 . 4 . 2002

 

Ransiri Fernando with Chandana Liyanage for petitioner - petitioner - petitioner

 

J. C. Wellamuna with Maduranga Ratnayake for respondent - respondent - respondent .

 

 

Cur. adv. vult .

June 05, 2008

Sarath De Abrew, J .

This is a revision application filed by the petitioner - petitioner -petitioner (hereinafter referred to as the petitioner) in order to set aside the impugned order dated 23.07.2007 (A9) of the High Court of Galle and the order dated 27.06.2007 (A7) of the Magistrate's Court of Galle respectively. The petitioner instituted action against the respondent - respondent - respondent (hereinafter referred to as the respondent) in terms of Section 66 of the Primary Courts Procedure Act regarding a dispute with regard to the possession of land called . "Halwaturegoda Kekunagaha Bedde" depicted as lot A in plan No . 1882 (P3) situated at Lelwala, Galle, where in the petitioner claimed he had been forcibly dispossessed by the respondent. After granting interim relief , the learned Magistrate of Galle, after due inquiry, made order dismissing the action of the petitioner (A7). Thereafter the petitioner moved in revision in the High Court of Galle , whereupon the learned High Court Judge, after hearing the petitioner in support, refused to issue notice and made order dismissing th e application (A9). Being aggrieved by the aforesaid orders, the petitioner has invoked the revisionary jurisdiction of this Court by filing this revision application in order to have the aforesaid orders set aside.

When the matter came up for support before this Court, learned Counsel for the respondent raised the following preliminary object ions, and urged Court to uphold the preliminary objections and dismiss the application of the petitioner in limine .

(a) The Petitioner could not have filed and maintained the instant Revision Application without exercising the statutory right of appeal available thereof, and in any event the petitioner has failed to plead and demonstrate existence of exceptional or special circumstances and, in fact, there does not exist exceptional or special circumstances warranting the exercise of the discretionary power of this Court by way of revision.

(b) The instant revision application should fail in as much as the petitioner has sought to revise the order of the learned Magistrate twice over (first in the High Court and now in the Court of Appeal) which is contrary to the legislative intent.

As both parties agreed that the aforesaid preliminary objections be decided by way of written submissions, both the petitioner and the respondent have filed written submissions along with case law authorities.

I have perused the petition as well as the entirety of the documentation annexed to the petition including the proceedings before the Galle Magistrate Court and the High Court, and the respective written submissions fried by both parties.

The revisionary power of this Court is a discretionary power and its exercise cannot be demanded as of right unlike the statutory remedy of Appeal. Certain pre-requisites have to be fulfilled by a petitioner to the satisfaction of this Court in order to successfully Invoke the exercise of such discretionary power. This is best illustrated in T. Varapragasan and another vs. A. Emanuel(1) where it was held that the following tests have to be applied before the discretion of the Court of Appeal is exercised in favour of a party seeking the revisionary remedy.

(a) The aggrieved party should have no other remedy.

(b)  If there was another remedy available to the aggrieved party, then revision would be available if special circumstances could be shown to warrant it.

(c) The aggrieved party must come to Court with clean hands and should not have contributed to the current situation.

(d) The aggrieved party should have complied with the law at that time.

(e) The acts complained of should have prejudiced his substantial rights.

(f)  The acts or circumstances complained of should have occasioned a failure of justice.

The main contention of the Respondent is that not only has the petitioner failed to avail himself of the alternative remedy of the statutory right of appeal against the impugned order of the learned High Court Judge of Galle (A9), but also has failed to plead and demonstrate the existence of exceptional circumstances which would open the gate-way to revision.

The legal principle with regard to the above is succinctly stated by L.H. De Alwis J in Thilagaratnam v. EAP Edirisinghe(2)  who remarked "though the Appellate Courts powers to act in revision were wide and would be exercised whether an appeal has been taken against the order of the original Court or not, such powers would be exercised only in exceptional circumstances."

Therefore the legal principle that failure to adopt the alternative remedy of Appeal would not necessarily be a bar to Invoking the revisionary powers, provided there are exceptional circumstances, have been followed in several authorities and has now become settled law.

Eg: Camillus Ignatius v. O.I.C. Uhana and others.(3)

M. A. Sirisena v. C. D . Richard Arsala and others.(4)

In Hotel Galaxy Ltd. V. Mercantile Hotel Management Ltd.(5) Sharvananda C.J. reiterated "It is settled law that the exercise of revisionary powers of the Appellate Court is confined to cases In which exceptional circumstances exist warranting its intervention."

The general principle that has emerged from a galaxy of such authorities is that revision will not lie where an appeal or other statutory remedy is available. It Is only if the aggrieved party can show exceptional circumstances for seeking relief by way of revision, rather than by way of appeal when such appeal is available as of right, that the Court will exercise its revisionary jurisdiction in the Interests of the due administration of Justice.

In the instant case the petitioner has not adopted the statutory right of appeal nor has he given any reasons far not doing so in the petition. Paragraph 13 of the Petition has set out several questions of law which could have been easily settled in an appeal. In fact paragraph 14 of the Petition reads "The Petitioner states that there are well and sufficient issues of Law arising out of the order of the learned High Court Judge marked A9 that deserve to be tested by an order of Your Lordship's Court". The petition therefore fails to demonstrate any exceptional circumstance or any error on the face of the record that would open the gateway for revision.

Even though the petitioner attempts to justify the recourse to revision as against appeal in his written submissions, It is well settled law that existence of such exceptional circumstances should be amply and clearly demonstrated in the petition itself.

In Urban Development Authority v. Ceylon Entertainments Ltd. and another(6) Nanayakakara J. held with Udalagama J. agreeing) that presence of exceptional circumstances by itself would not be sufficient if there is no express pleading to that effect in the Petition whenever an application is made invoking the revisionary jurisdiction of the Court of Appeal.

In the instant application the petitioner has neither disclosed nor expressly pleaded exceptional circumstances that warrant intervention by way of revision. In the event, I am inclined to uphold the first preliminary objection raised by the respondent and therefore do not proceed to consider the second ground.

However my task would not be complete if I fail to dwell on a very salient feature of this application, namely the application of the principle of uberrima fides. On a perusal of the totality of the pleadings, it is quite apparent that as disclosed in documents V4 and V25, the petitioner himself has been a party and signatory to a mortgage of a larger land which included the corpus in this case to the Peoples Bank who had acquired and sold the land in question to the respondent on the failure of the petitioner and others to redeem the mortgage and repay the loan to the Bank. However in paragraph 05 of the petition the petitioner vaguely refers to his brother having mortgaged part of the land to the People's Bank. In the proceedings before the Magistrate Court and the High Court, the petitioner has not sought to challenge the illuminating deed of mortgage V4. In the petition filed before the Magistrate Court (A 1) there is no reference at all to the aforesaid mortgage. By his failure to redeem the Mortgage, the petitioner too appears to have contributed to the current situation, which conduct accrues adversely against the petitioner in view of the Varapragasam case quoted above.

It is a cardinal principle in revisionary jurisdiction that in order to invoke discretionary revisionary powers the petitioner should made a full disclosure of material facts known to him and thereby show uberrima fides towards Court. Deliberate non- disclosure should be regarded as fatal to the application.

Eg: Sirisena v. Richard Arsala and others (supra). In the instant case the Petitioner has clearly infringed the aforesaid cardinal rule.

For the reasons stated above this Court is of the view that this is not a fit case to invoke the discretionary revisionary powers of this Court. Therefore I uphold the first preliminary objection raised by the respondent and dismiss the application of the petitioner in limine. In all the circumstances of this case I make no order as to costs.

The Registrar is directed to forward copies of this order to the learned High Court Judge and the learned Magistrate of Galle. Application is accordingly dismissed

Imam , J. - I agree.

Preliminary objection upheld.

Application dismissed.