Meeruppe Sumanatissa Terunnanse V. Warakapitiya Sangananda Terunnanse

1964 Present: T. S. Fernando, J., and Sri Skanda Rajah, J.

MEERUPPE  SUMANATISSA TERUNNANSE, Petitioner, and
 WARAKAPITIYA SANGANANDA TERUNNANSE, Respondent

S. C. 283/1963-Application for Conditional Leave to Appeal to
 Her Majesty in Council under the Appeals (Privy Council) Ordinance.

Privy Council-Application for conditional leave to appeal-Failure of petitioner to file affidavit-Effect-Affidavit-Form of jurat-Appeals (Privy Council) Ordinance, Schedule, Rules 1 (a), 2, 3-Civil Procedure Code, ss. 376, 439.

In an application for conditional leave to appeal to the Privy Council in terms of Rule 2 of the Schedule to the Appeals (Privy Council) Ordinance, the absence of an affidavit is not fatal to a grant of leave.

An affidavit filed by a person who is not able to understand writing in the English language is liable to be rejected if the jurat is not in the form required by section 439 of the Civil Procedure Code.

APPLICATION for conditional leave to appeal to the Privy Council.

                   H.  Wanigatunga, for the petitioner.

                  A. F. Wijemanne, for the respondent.

Cur. adv. vult.

May 7, 1964. T. S. FERNANDO, J.-

       At the conclusion of the argument on this application we granted leave to appeal subject to the usual conditions, but, in view of the novelty of the point raised on behalf of the respondent, decided to set down later the reasons for our order.

       The respondent objected to the granting of the petitioner's application for conditional leave to appeal to Her Majesty in Council, and based his objection on the ground that the application was bad in law inasmuch as the affidavit which was attached to the petition did not conform to the requirements of law.

      The affidavit had been drafted in the English language. The petitioner did not dispute that he is a person who is not able to understand writing in the English language. The respondent pointed to section 439 of the Civil Procedure Code which requires that an affidavit, in a situation such as this, shall at the time of affirmation be interpreted to the affirmant in his own language (which in the case of the petitioner is the Sinhala language), and that the jurat shall express that it was so interpreted to him in the presence of the Justice of the Peace and that he appeared to understand the contents thereof. The jurat of the affidavit which Was attached to the petition presented to court by the petitioner is in the under mentioned form :-

              " Read over signed and affirmed to at Weligama on this 12th day of June 1963."

    It was not seriously doubted that the affidavit is not in the form required by section 439 of the Civil Procedure Code and that it should be rejected.

     Did the rejection of the affidavit militate against the granting of the application of the petitioner ? Rule 1 (a) of the Rules in the Schedule to the Appeals (Privy Council) Ordinance confers a right of appeal in certain specified circumstances. Rule 2 requires any party desirous of appealing to make application to the Supreme Court by petition within a stated time. The Rule is silent as to any requirement of affidavit evidence. The petition presented by the petitioner contained statements which, if true, entitled him to a grant of leave upon conditions set out in Rule 3. The correctness of the statements in the petition could have been ascertained, if necessary, by this Court by merely calling for and examining the final judgment of this Court and/or the record of the court of trial.

In the present instance the correctness of the statements in the petition was not challenged by the respondent who based his objection solely on the defect in the affidavit which, according to him, left this Court without proof of the correctness of the statements in the petition-Learned counsel for the respondent referred to Chapter XXIV

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