PALITHA
VS.
MONETARY BOARD OF THE CENTRAL BANK OF SRI LANKA AND ANOTHER

COURT OF APPEAL
WIMALACHANDRA, J
BASNAYAKE, J
CALA 240/2006
DC COLOMBO 45472/MR
FEBRUARY 23, 2007
FEBRUARY 27, 2008

Court of Appeal- Rules 1990- Section 3 (1), Section 3 (2)- Constitution Article 140, 141 - Supreme Court Rules 1978 - Does Rule 3 of the Court of Appeal Rules apply to leave to appeal applications- Leave to appeal-A statutory remedy?

HELD:

(1) Court of Appeal Rules 1990 - Rule 3 (1) (a) and (b) - there is no reference to leave to appeal applications

(2) Rule 3 (2) specifically excludes its application to powers exercised by the Court of Appeal under Article 141 and it applies to other applications referred to in Rule 3 (1) (a) and Rule 3 (1) (b).

(3) Rule 3 (2) should be read in conjunction with Rule 3 (1). It is an elementary rule that construction is to be made of all parts together and not of one part only by itself. The meaning of a Sub-section may be controlled by other Sections.

(4) It appears that the requirement to aver in the petition that the jurisdiction of the Court of Appeal has not been previously invoked [Rule 3 (2)) applies only to applications made to the Court of Appeal under Articles. 140 and 138.

(5) Leave to appeal is a statutory remedy provided by the Civil Procedure Code - there is no necessity to aver that the petitioner had not previously invoked the jurisdiction of the Court of Appeal.

Per Wimalachandra, J.

"In identical circumstances, in CALA 193/2005 which was delivered by me sitting alone, I have upheld the preliminary objection raised that the petitioner has not averred in his petition, filed in the Court of Appeal, that the petitioner had not previously invoked the jurisdiction of the Court of Appeal in the same matter as required by Rule 47 -SC Rules 1978-and on that ground dismissed the leave to appeal application.......". The matter does not appear to me now as it appears to have appeated to me before".

My order in Celltel (Pvt) Ltd. et-al vs. Information and Technology Agency in Sri Lanka (Pvt) Ltd. - CALA 193/2005 ought to stand rectified.

Application for leave to appeal from an order of the District Court of Colombo- on a preliminary objection taken.

Cases referred to :-

1. Caderamanpulle and others vs. Caderamanpulle and others - 2005 1 Sri LR 397
2. Celltel (Pvt) Ltd et-/-al vs. lnformation and Communication Technology Agency of Sri Lanka (Pvt) Ltd- CALA 193/05 (wrongly decided)
3. Pieris vs. Chairman VC Medalsiya Pattu Matale-62 NLR 516 at 547
4. Herath vs. Munasinghe- SC 634- M. C. Kegalle 16388- SCM 27.8 1957

M.A. Sumanthiran with Ermiza Tegel for plaintiff- petitioner.

K. Kanag- lswaran PC with Dilshani Wijayawantane for defendant- respondent.

Cur.adv.vult.

July 31, 2008

L. K. WIMALACHANDRA, J

This is an application for leave to appeal against an order of the learned District Judge of Colombo dated 09.06.2006.

When the leave to appeal application was taken up for inquiry the defendant-respondents (defendants) raised a preliminary objection, stating that the plaintiff has failed to plead that the jurisdiction of the Court of Appeal has not been previously invoked in respect of this matter in accordance with Rule 3 (2) of the Court of Appeal Rules. Both parties tendered their written submissions and invited the Court to decide the preliminary objection raised by the learned President Counsel for the defendants-respondents on the written submissions filed.

The learned President's Counsel for the defendants submitted that the petition of the plaintiff should be dismissed in limine for the reason that the plaintiff-petitioner has not complied with the mandatory, requirement of pleading that the jurisdiction of the Court of Appeal has not been previously invoked in respect of the same matter.

The learned Counsel for the plaintiff submitted that the procedure for invoking the jurisdiction of the Court of Appeal in relation to appeal is distinct