Section 66 ......P.PADMAN SURASENA ,J (P/CA)

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ASITHA P GAMAGE  VS. KONADENIYE G H MAHATHTHAYA

 

P.PADMAN SURASENA ,J (P/CA)

C A (PHC) APN / 71 / 2017
Provincial High Court of Central Province (Kandy)
Case No. HC Rev 30 / 2015
Primary Court Kandy Case No. 77849/14

In the matter of an application for revision of an order of the Provincial High Court in the exercise of its revisionary jurisdiction.  

1. Asitha Premajith Gamage,
No.3,
Menik Kumbura Lane,
Katugastota.

RESPONDENT - PETITIONER­-PETITIONER

Vs

Konadeniye Gedera Heen Mahaththaya,No. 18,
Kaluwana,
Ambatenna.

PETITIONER - RESPONDENT - RESPONDENT

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

Counsel; Dr. Sunil Cooray for the Respondent - Petitioner -Petitioner.
           Shyamal A Collure for the Petitioner - Respondent - Respondent.

Supported on: 2017-10-02.

Decided on : 2018 - 05 - 18

ORDER

P Padman Surasena J

   The Petitioner and the Respondent of this application are two rival parties  in the instant case which is a proceeding instituted under section 66 (1) (b)  of the Primary Courts Procedure Act. Learned Primary Court Judge having inquired into the complaint, had  pronounced its order.

   Being aggrieved by the said order made by the learned Primary Court Judge, the Petitioner had filed an application for revision in the Provincial  High Court of Central Province holden in  Kandy seeking a revision of the  order of the Primary Court.  The Provincial High Court after hearing refused the said revision application  by its order dated 2017-05-05. Learned counsel for the Petitioner conceded at the outset that an appeal  has also been filed in respect of the same matter i.e. against the said judgment of the Provincial High Court.

   It was his submission that the purpose of filing this revision application despite the pending appeal is to  obtain the interim relief prayed for in the prayers of this petition.

    In the case of Jayantha Gunasekara V Jayatissa Gunasekara and others2 this Court had held that mere lodging in the Court of Appeal, an appeal  against a judgment of the High Court in the exercise of its revisionary  power in terms of article 154 P (3) (b) of the Constitution, does not  automatically stay the execution of the order of the High Court. A passage  from that judgment which would be relevant here is as follows.

" .... Obviously, to put off the execution process until the appeal is heard would tantamount to prolong the agony and to let the breach of peace to  continue for a considerable length of time. This in my opinion cannot be  the remedy the Parliament has clearly decided upon. Hence, I am confident  that the construction we are mindful of placing by this judgment would   definitely suppress the mischief and subtle inventions and evasions for continuance of the mischief .... " 

______________________

1 Paragraph 25 of the petition.
2 2011 (1) Sri L R 284.

Since there is an appeal, pending before this Court it is open for the parties to have thei rights adjudicated by this Court in that appeal. When there is a right of appeal provided for by law, an applicant in a revision application must show the existence of exceptional circumstances  for any intervention by a revisionary Court. This Court cannot accept the  grounds urged in the petition as exceptional circumstances as they are  mere grounds of appeal upon which the petition of appeal may have been  lodged. 

In these circumstances, this Court sees no basis to issue notices on the Respondents.

The revision application should stand dismissed.

PRESIDENT OF THE COURT OF APPEAL

K K Wickremasinghe J

I agree,

      JUDGE OF THE COURT OF APPEAL

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