IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an application for a Revision and Restitutio-in-Integrum under Article 138(1) of the Constitution of the Democratic Socialist Republic of Sri Lanka.

CA/RII/45/2023 D.C. Colombo Case No:

DDV/00778/16 Mallika Arachchige Terashma Rashmi Perera, No.6/4, 3^rd Lane, Nawala, Rajagiriya.

.

Defendant- Petitioner-Appellant-

Petitioner -Vs-

Nawalage Asanka Indrajith Cooray, No.6/26, 3rd Lane, Nawala, Rajagiriya Palintiff-Respondent-Respondent-

Respondent Before: Hon. D.N. Samarakoon, J.

Hon. Neil Iddawala J.

Counsel: Mr. Chathura Amarathunge with Ms. Udeni Gallage instructed by the Legal Aid Commission for Defendant- Petitioner-Appellant-

Petitioner.

Mr. Mayura Gunawansa P.C. with Mr. Isuru Siriwardhana and Mr. Mahesh Pathirana for Palintiff-Respondent-Respondent-

Respondent.

Argued on: 16.11.2023 Written submission tendered on: 23.11.2023 Plaintiff Respondent-

Respondent-Respondent Decided on: 30.11.2023 D. N. Samarakoon J., It is a question whether the defendant petitioner appellant petitioner Mallika Arachchige Tereshma Rashmi Perera against whom things seems to have gone wrong at every turn in this divorce case, the case being taken up ex parte, the refusal to vacate ex parte decree, appeal being refused on the basis of out of time and out of form, application under section 839 of the Civil Procedure Code being refused and finally the alleged non invocation of “revisionary” jurisdiction of this Court, had a right to get her “appeal” forwarded to the appellate body.

Mr. Muyra Gunawansha, President’s Counsel for the plaintiff respondent respondent respondent has strenuously objected to the issuing of notice on several grounds.

However, upon being mindful of the judgment of Suresh Chandra J., in the Supreme Court in SC Appeal No. 07/2012, dated 15.06.2012, which is also an appeal in regard to certain irregularities in the appeal procedure and being mindful of what His lordship said at page 10 of that judgment, “As Francis Bacon said “Judges must beware of hard constructions and strained inferences, for there is no worse torture than that of laws””, this Court decides to issue formal notice on the respondent.

On the basis of the decision to issue notice, since the final outcome of this application could be rendered nugatory, this Court also issues an interim order staying the proceedings of District Court of Colombo case No. DDV/778/16 until the final determination of this application or until further notice.

This Court is presently exercising the jurisdiction of Restitutio in Integrum and as the plaintiff respondent has raised a question in regard to the power of revision, it is the position of this Court that its revisionary jurisdiction has not been affected by the creation of a High Court exercising civil appellate jurisdiction. The reasons for this proposition are given in C. A. RII 02 2020 decided today.

Judge of the Court of Appeal.

Hon. Neil Iddawala.

I agree.