ANULAWATHI
V.
WEERASINGHE BANDARA

SUPREME COURT
DR.SHIRANIA. BANDARANAYAKE.CJ.
RATHNAYAKE, PC., J. AND
DEP.PC, J.
S.C.APPEAL NO.192/2011
S.C. (H.C) CA LA NO. 450/2011
SP/HCCA/KAG/336/2007 (F)
D.C. MAWANELLA NO. 538/L
SEPTEMBER 24th ,2012

Civil Procedure Code - S.754(3) - appeal to the Court of Appeal from any original Court shall be lodged by giving notice of appeal to the original Court.

This is an appeal from the Civil Appellate High Court of the Sabaragamuwa Province. By that judgment the Civil Appellate High Court had rejected the Notice of Appeal and the Petition of Appeal filed by the Defendant-Appellant-Appellant. The position taken by the High Court was on the basis that the Notice of Appeal and the Petition of Appeal should have been addressed to the original Court and on that ground the appeal was dismissed.

The Appellant preferred an application for leave to appeal to the Supreme Court against the decision of the Civil Appellate High Court on which leave to appeal was granted by the Supreme Court.

When the appeal was taken for hearing learned Counsel for the Appellant submitted that for a period of well over 100 years the practice had been to prepare the Notice of Appeal in the manner that had been carried out in the present application.

Held:

If there is a practice that has been in existence for a long period of time, which had been accepted and recognized by Court, such practice cannot be easily rejected or changed.

Cases referred to:

1) S.M. Samarakoon and S.M. Kularatne Vs. M.S. Fajurdeen - S. C. Appeal No. 06/2012, S.C.Minutes of 15.06.2012

2) Boyagoda V. Mendis - (1929) 30 NLR 321

3) Babapulle V. Domingo - (1892) 2 CLR 96

Appeal from the judgment of the Civil Appellate High Court of the Sabaragamuwa Province holden in Kegalle.

Rohan Sahabandu PC. with Hasitha Amarasinghe for Defendant -Appellant - Appellant

Saliya Peiris with Thanuka Nandasiri for Plaintiff- Respondent - Respondent

Cur.adv.vult

November 15, 2012

Dr.Shirani A. Bandaranayake, CJ.

This is an appeal from the judgment of the Civil Appellate High Court of the Sabaragamuwa Province holden in Kegalle dated 25.10.2011 (hereinafter referred to as the Civil Appellate High Court). By that judgment the Civil Appellate High Court had rejected the Notice of Appeal and the Petition of Appeal filed by the defendant-appellant - appellant (hereinafter referred to as the appellant).

The appellant preferred an application for leave to appeal before the Supreme Court against the said judgment of the Civil Appellate High Court on which leave to appeal was granted by this Court.

The facts of this appeal as submitted by the appellant, albeit brief, are as follows:

The plaintiff-respondent-respondent (hereinafter referred to as the respondent) instituted action in the District Court of Mawanella against the appellant and the judgment was delivered in favour of the respondent by the District Court.

Being aggrieved, the appellant filed Notice of Appeal and Petition of Appeal against the said judgment. When the matter was taken before

the Civil Appellate High Court, the Court had informed that the Notice of Appeal and Petition of Appeal had been addressed to the Court of Appeal and in terms of Section 754 (3) of the Civil Procedure Code the said Notice should be addressed to the original Court. The Civil Appellate High Court after hearing both parties had rejected the said Notice of Appeal and the Petition of Appeal. Thereafter the appellant had instituted an application for leave to appeal before this Court.

When this matter came up for hearing, learned Counsel for the appellant as well as the learned Counsel for the respondent had informed Court that the questions that are to be considered in this appeal on which leave to appeal was granted were being considered by this Court in a similar matter and the said judgment was pending. In those circumstances, both learned Counsel had moved that this mat