PUSHPA DE SOYSA AND FIVE OTHERS

PUSHPA DE SOYSA AND FIVE OTHERS

VS.

MEERA MAAR BEACH HOTEL CO. LTD AND OTHERS

COURT OF APPEAL
A.H.M.D. NAWAZ, J.
CA 1118/1999(F)
DC BALAPITIYA 928/P
DECEMBER 05, 2017.

Civil Procedure Code S.40(e) - Sections 46(2)- 755(3) - 758(1) and 773. - is the petition of appeal fatally flawed if it does not contain a prayer for setting aside the judgment a quo- Constitution Article 138-139(1)- Rules 28(2), 28(5) SC Rules 1990.- ubi jus ibi remedium.

The petition of appeal lodged contained the following plea. "It is respectfully submitted that the Plaintiffs action be dismissed". It was contended by the contesting Defendant Respondents that the aforesaid sentence, would not suffice for purposes of Sections 755(3)- 578(1 )(f).

It was contended that, the petition of appeal must pray for substantive relief such as a demand the judgment be set aside and an "incidental relief such as "Plaintiffs action be dismissed"- only then the petition of appeal will become compliant with Sections 755(3)- Sections 758(1 )(f).

Both Counsel sought the dismissal of the appeal- in limine- on the above preliminary objection.

HELD:

(1) Sections 773 of the Code and Article 139(1) of the Constitution echo the identical language and mirror the appellate power of the appellate court in similar import.

(2) Sections 773 does not use the words "allow the appeal or set aside the judgment- decree or order- connotes among other things the setting aside the judgment and once it is done by the Court of Appeal, what follows would be the dismissal of the action.

The Court of Appeal in its final judgment achieve these results, even if the exact formula as found in these provisions "affirm, reverse, correct or modify any judgement, decree, or order according to law..."

Per Nawaz, J.

"I take the view that, a defect in a petition of appeal real or imaginary, cannot fetter and shackle the appellate jurisdiction of this Court so as to frustrate the administration of justice when this Court finds that the so called defect does not go to jurisdiction."

PerNawaz, J.

"One cannot put labels such as substantive relief and incidental relief on the remedies that this Court is empowered to grant namely an Appellant must use particular formulae in petitions of appeal (setting aside a judgment etc) and in default of such language being used, the Appellant must suffer the consequence of dismissal of his petition of appeal."

(3) A Code of Procedure is a body of law designed to facilitate justice and further its ends, and should not be treated as an enactment providing for sanctions and penalties. Ubi jus ibi remedium (where there is a right, there is a remedy) is a principle that is ingrained in our legal system and this Court is invested with the widest possible discretion to see that proceedings that affect lives and property must continue in the presence of parties and they should not be precluded from participating in them owing to linguistic paucity imaginarily perceived in their pleadings.

APPEAL from the District Court of Balapitiya- on a Preliminary Objection raised.

Cases referred to;

(1) Dulfa Umma et al vs. U.D.C. Matale 40 NLR 474 at 478
(2) Surangi vs. Rodrigo (2003) 3 Sri.LR 35 (distinguished)
(3) Sirinivasa Thero vs. Sudassi Thero 63 NLR 31
(4) Martin Singho vs. Kularatne CA 248/1995 CAM 18.12.1996
(5) Wijesuriyavs. Senaratne (1997) 2 Sri.LR 323
(6) Weragama vs. Bandara 77 NLR 289
(7) Inaya vs. Fathima (2006) 2 Sri.L.R 124
(8) lllangakoon Mudiyanselage Gnanathilaka lllangakoon vs. Anula Kumarihami SCHCCALA 277/2011- SCM 05.04.2013
(9) Sudath Rohana and Another vs. Mohamed Zeena and Another (2011) 2 SRI.L.R 141, (2011) BLR 277
(10) Fernando vs. Sybil Fernando and others (1997) 3 Sri.LR 1
(11) Navaratnasingham vs. Arumugam and another (198 2 Sri.LR 1
(12) Podihamy vs. Simon Appu 47 NLR 503 at 504
(13) Colgan and others vs. Udeshi and others (1996) 2 Sri.LR 220

Gamini Marapana, PC with

Click Here to Read the rest of this document