SIRIPALA
V
LANEROLLE AND ANOTHER
 
 

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 arid 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 lear