Leave to appeal-what documents need to be produced

IN THE HIGH COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA OF THE CENTRAL PROVINCE HOLDEN AT KANDY EXERCISING JURISDICTION IN TERMS OF SECTION 5(B) OF THE HIGH COURT OF THE PROVINCES (SPECIAL PROVISIONS) ACT NO. 54 OF 2006. Selladore Jacob Shashi Kumar Sri Kalyana Gangarama Mawata, No. 50/10, Mattakkuliya, Colombo 15 Plaintiff CP/HCCA/KANDY/14/2022 LA D.C. of Kandy Case No. 164/09 DLM Vs. Hippola Mudiyanselage Manuwansha Hippola No. 47/3, Polwatta, Ampitiya, Defendant AND NOW Selladore Jacob Shashi Kumar Sri Kalyana Gangarama Mawata, CP/HCCA/KANDY/14/2022 LA Page 1 No. 50/10, Mattakkuliya, Colombo 15 Plaintiff - Petitioner Vs. Hippola Mudiyanselage Manuwansha Hippola No. 47/3, Polwatta, Ampitiya, Defendant - Respondent NOW BETWEEN Selladore Jacob Shashi Kumar Sri Kalyana Gangarama Mawata, No. 50/10, Mattakkuliya, Colombo 15 Plaintiff - PetitionerPetitioner Vs. Hippola Mudiyanselage Manuwansha Hippola No. 47/3, Polwatta, Ampitiya, Defendant - Respondent - Respondent Before : Hon. K.M.S. Dissanayake - HCJ [HCCA] Hon. Dr. Sumudu Premachandra - HCJ [HCCA] CP/HCCA/KANDY/14/2022 LA Page 2 Counsel: Ranjith Ranaweera for the Plaintiff-Petitioner-Petitioner Dahmmika Hettihewage instructed by Maheshika Nilmini for the Defendant-Respondent-Respondent Written Submissions Plaintiff -Petitioner Petitioner tendered on : not tendered - Respondent tendered on : 26/05/2023 Supported on : 12/03/2024 Decided on : 28/06/2024 Written Submissions Defendant – Respondent Dr. Sumudu Premachandra, HCJ [Civil Appeal] 1] The Petitioner of this leave to appeal was given adequate time to submit පෙ3, පෙ3 අ and පෙ4, documents which were marked along the petition. 2] On 26/05/2023, the Respondent has filed preliminary legal objection with regard to the maintainability of the appeal. The learned counsel for the Respondent says that the Petitioner has failed to CP/HCCA/KANDY/14/2022 LA Page 3 comply with Rule 3(1) A of the Court of Appeal (Appellate Procedure) Rules 1990. 3] When the matter was supported on 12/03/2024, the order was reserved on the question of leave and the preliminary legal objection. The parties were given time to file written submissions, if need be. 4] Thus, maintainability and question of leave to be decided. I would like to decide the preliminary objection first. In support of the contention made by the Respondent on maintainability of the application, they relied on Rodrigo vs. The Finance Co. Ltd. and another 2005] 2 SLR 285. In that case, WIMALACHANDRA, J. held with regard to the Rule 3(1)A of the Court of Appeal (Appellate Procedure) Rules 1990 as follows; (i) The copies of the Petition and affidavit filed by the Petitioner by which he sought to add new parties and sought other reliefs, such as cancellation of the deed are necessary documents. (ii) The omission to tender same is fatal. (iii) The Petitioner has to comply with Rule 3(1)A of the Court of Appeal (Appellate Procedure) Rules 1990. CP/HCCA/KANDY/14/2022 LA Page 4 (iv) The failure to explain the reasons as to why the documents were not tendered or to cure the default in terms of the said Rule is fatal to an application. (v) Whether a document is a material document or not would be decided by the Appellate Court and it is not for the parties to decide. (vi) If certified copies of the Petition and Affidavit could not have been obtained in time, it was the duty of the Petitioner to mention this fact to Court and obtain Courts permission. 5] The same principle was applied in Nona and Others vs Pedrick Singho and Others [2005] 3 SLR 176, by Wimalachandra, J. and held; “In my view if this court is unable to understand the order sought to be revised in the absence of the relevant documents, it is only then the failure to observe the Rules and the failure to file the relevant documents will amount to a fatal irregularity which would result in the dismissal of petition.” [Emphasis is added] 6] However, in CADERAMANPULLE AND OTHERS VS CADERAMANPULLE AND OTHERS, [2005] 1 SLR 397, GAMINI CP/HCCA/KANDY/14/2022 LA Page 5 AMARATUNGA, J. clearly held that Rule No 3 is not applicable to leave to appeal applications. His Lordship notes; “The reason for the absence of any reference to leave to appeal applications in Rule 46(old) and Rule 3(1) (new) is the existence of specific provisions in the Civil Procedure Code, prescribing the manner in which leave to appeal applications are to be made." 7] In that case, His Lordship GAMINI AMARATUNGA, J. further held; “(i) Rule 3 of the Court of Appeal (Appellate Procedure) Rules 1990 is not applicable to leave to appeal applications. (ii) The scope of Rule 3(15) is restricted to the category of applications similar to those set out in Rule 3(1) (a) and (b) and accordingly Rule 3(15) is applicable to other applications namely, those applications where the respondent has to file a statement of objections. There is no provision for the fling of objections to leave to appeal applications under section 754(2) and under section 757 of the Civil Procedure Code. (iii) There is no requirement under section 757 and section 758 of the Code to annex any document to an application for leave to appeal except the affidavit of the petitioner. The Civil Procedure Code (Amendment) Act, No. 38 of 1988 made CP/HCCA/KANDY/14/2022 LA Page 6 provision in section 757(4) for the Court of Appeal to grant interim relief pending the decision whether leave to appeal should be granted or not. However, subsequent to the amendment of section 757(4) the Court of Appeal Rules have not been amended in order to make the filing of other documents along with a leave to appeal application mandatory in situations before granting interim relief. (iv) Court has no power to dismiss a leave to appeal application in limine on the petitioner’s failure to produce certified copies of documents.” [Emphasis is added] 8] Thus, in view of decision of CADERAMANPULLE AND OTHERS VS CADERAMANPULLE AND OTHERS (supra), I hold that the Petitioner is not obliged to file any document such as පෙ3, පෙ3 අ and පෙ4. The practice of the court is when the leave is granted, the original case record will be called under section 757(5) of the Civil Procedure Code. The section says; “757(5) Upon leave to appeal being granted, the Registrar of the Court of Appeal shall immediately inform the original court, and, unless the Court of Appeal has otherwise directed, all proceedings in the original court shall be stayed and the said court shall as speedily as possible forward to the Court of Appeal all the papers and proceedings in the case, relevant to the matter in issue:” [Emphasis is added] CP/HCCA/KANDY/14/2022 LA Page 7 9] Thus, all papers of the original court will be called after leave was granted. In view of above legal position, I dismiss the preliminary objection. 10] I now consider on the question of leave. The learned trial judge has refused the interim injunction for the second time on the basis that the interim injunction has been earlier refused. I do not think that the principle of Res Judicata can be applied to this occasion. I hold that there is a question of law to be decided. Thus, the leave is granted. 11] The matter is now fixed for hearing on the convenient date for learned counsels of the parties. 12] For the above reasons, the preliminary objection is refused without costs. The leave is granted. Dr. Sumudu Premachandra, HCJ (C.A) High Court Judge of the Civil Appellate High Court - Kandy I agree. Sumudu/- CP/HCCA/KANDY/14/2022 LA K.M.S. Dissanayake, HCJ (C.A) High Court Judge of the Civil Appellate High Court - Kandy Page 8