ANTONY FERNANDO
V.
DEEPTHI LAKMALI

SUPREME COURT
RATNAYAKE, PC,J
SURESH CHANDRA J. AND
DEP, PC. J
SC(SPEACIAL) LA No. 21/2011
HC(CHILAW) APPEAL No. HCA28/2008
MC(MARAWILA) No. 10777/C
FEBRUARY 14th, 2012

Maintenance Act, No. 37 of 1999 - Right of Appeal - Sections 14(1) and 14(2) - High Court of the Provinces (Special Provisions) Act, No. 19 of 1990- Section 9- exercise of Appellate jurisdiction - a dissatisfied party may prefer an appeal therefrom to the Supreme Court, on a question of law with leave of the High Court - If such leave is refused, with special leave of the Supreme Court,-disjunctiveword 'or' and conjunctive word 'and' - difference - generalia specialibus Non derogant

The Respondent had made an application in the Magistrates Court of Marawila against the Petitioner seeking maintenance for herself in a sum of Rs.60,000 per month. After inquiry by the learned Magistrate, the Petitioner was ordered to pay Rs.5,000 per month as maintenance.

The Respondent appealed against the said order of the Magistrate to the High Court for a variation of the order. The High Court varied the Order of the Magistrate by increasing the maintenance payable to the Respondent to Rs.25,000 per month. The Petitioner filed this application against the said Order of the High Court to the Supreme Court.

Held :

(1) No direct application can be made to the Supreme Court in respect of an application for maintenance against the Judgment of the High Court. Such an application should first be made to the High Court itself seeking leave to appeal to the Supreme Court and in the event of refusal of such application by the High Court, the Petitioner could seek leave to appeal from Supreme Court.

per Suresh Chandra, J.,

"The maxim Generalia specialibus non derogant", when applied to the present instance would also show that the general provision for appeals from High Courts to the Supreme Court as provided for by Section 9 of the High Court of Provinces (Special Provisions) Act No.19 of 1990 has no application where a special provision is made in a specific statute such as the provision in Section 14(2) of the Maintenance Act No.37 of 1999 which was also enacted after the introduction of the general provision in Act No.19 of 1990".

(2) Supreme Court Rules provide the procedure to be followed in invoking the appellate powers of the Supreme Court and does not provide substantive law relating to Appeals specially when there are specific provisions in statutes granting rights to appeal to the Supreme Court.

Application for Special Leave to Appeal in terms of Article 128 of the Constitution read with Section 9 of the High Court of Provinces (Special Provisions) Act, No.19 of 1990.

Nuwan Dissanayake for the Respondent- Respondent - Petitioner

Thushani Machado for the Applicant -Appellant -Respondent.

Cur.adv.vult.

June 15th, 2012
SURESH CHANDRA, J.

This is an application for special leave to appeal in terms of Article 128 of the Constitution of the Democratic Socialist Republic of Sri Lanka read with s.9 of the High Court of provinces( Special Provisions) Act No. 19 of 1990. When this application was taken up for support a preliminary objection was raised by Counsel for the Respondent as to the maintainability of the application in view of S.14(2) of the Maintenance Act No.37 of 1999. Both parties made oral submissions and thereafter filed written submission regarding the preliminary objection that was raised.

The Respondent had made an application in the Magistrates Court of Marawila against the Petitioner seeking maintenance for herself in the sum of Rs.20,000 per month. Thereafter she had amended her application and sought an increased amount of maintenance of Rs.60,000 per month. After inquiry by the learned Magistrate , the Petitioner was ordered to

pay Rs.5,000 per month as maintenance. Thereafter the Respondent appealed against the said order of the Magistrates Court to t