NANDAWATHIE AND ANOTHER V MAHINDASENA

NANDAWATHIE AND ANOTHER V. MAHINDASENA

COURT OF APPEAL
RANJIT SILVA. J
SALAM, J.
CA( PHC) 242/2006
HC AVISSAWELLA (REV) 67/2004
MC AVISSAWELLA 66148 (66)
JANUARY 15TH, 2009
MAY 4TH, 2009

Primary Court Ordinance Sections 68, 69, 74 (2), 78 - Relief granted - Moved High Court in revision - Application allowed - Appeal lodged - Can the writ be executed while the appeal is pending? - Is there an automatic stay of proceedings? Civil Procedure Code Sections 754, 757 (2), 761, 630 - Amended by Act No. 38 of 1998 - Judicature Act - Section 23 - High Court of the Provinces (SpI Prov) Act No.19 of 1990 - Constitution 154 P 13th amendment- Supreme Court Rules 1940 - Industrial Disputes Amendment Act No. 32 of 1990 - Maintenance Act No. 34 of 1990 - Section 14 - Criminal Procedure Code No.15 of 1979 Section 323 - Bail Act - Section 19- Constitution Article 138 - Examined - Compared. - Obiter dicta.

Held

(1) When an order of a Primary Court Judge is challenged by way of revision in the High Court the High Court can examine only the legality of that order and not the corrections of that order.

(2) On appeal to the Court of Appeal the Court of Appeal should not under the guise of the appeal attempt to re-hear or re-evaluate the evidence led and decide on the facts which are entirely and exclusively falling within the domain of the jurisdiction of the Primary Court.

(3) Orders given by the Primary Court should be executed or implemented expeditiously as possible without undue delay unless there is a stay order currently in operation there should be no

automatic stay of proceedings for whatever reason otherwise that would negate and frustrate the very purpose for which that provisions were enacted.

Per Ranjith Silva J.

"I am of the opinion that this particular right of appeal in the circumstances should not be taken as an appeal in the true sense but in fact an application to examine the correctness, legality or the propriety of the order made by the High Court Judge in the exercise of revisionary powers. The Court of Appeal should not under the guise of an appeal attempt to rehear or re-evaluate the evidence led in the main case."

Per Ranjith Silva. J.

"General laws, concepts and general principles whether they have been there from time immemorial should not be applied mechanically to new situations which were never in contemplation when those laws, principles or concepts came into being, extraordinary situations demand extraordinary remedies. It is the duty of Court of law to give effect to the laws to meet new situations, by brushing aside technicalities, the so called rules and concepts which cannot be reconciled should not be allowed to stand in the way of the administration of justice causing hindrance impeding the very relief the legislature wanted to enact".

Per Ranjith Silva, J.

"The decision in R. A. Kusum Kanthilatha and others v. Indrani  Wimalaratne(1) and two others placing reliance on the dictum in Edward v. Silva(2) as authority for the proposition that once an appeal is taken against a judgment of a final order pronounced by a High Court in the exercise of its revisionary jurisdiction ipso facto stays the execution of the judgment or order is clearly erroneous. Lodging of an appeal does ipso facto stay execution. Something more has to be done by the aggrieved party and something more has to be shown, to stay the execution of the judgment or order - it is not automatic".

Cases referred to:-

1. R.A. Kusum Kathilatha and others v. lndrani Wimalaratne and two others - 2005 1 Sri LR411 (not followed)

2. Edward v. de Silva - 46 NLR343 (distinguished)

3. AG v. Silem -11 Eng. Reports at 1208.

4. Sokkalal ram Sart v. Nadar- 34 NLR 89

5. Charlotte Perera v. Thambiah 1983 - 1 Sri LR at 352

6. Brooke Bond (Ceylon) Ltd., v. Gunasekera - 1990 1 LR 71

7. Nayar v. Thaseek:Ameen - 20003 Sri LR at 103

8. Kulatunga v. Perera - 2002 - 1 Sri LR at 357

APPLICATION

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