Legal Services and Laws of Sri Lanka

SLR-1978-79-80 Vol.1-P10

SLR - 1978-79-80 Vol.1, Page No - 10





S.C. APPEAL NO. 1/79
MARCH 28, 29, 1979.

Stay of proceedings - Application for Writs of Certiorari and Prohibition in respect of acquisition proceedings -Orderfor
stay made by Court of Appeal - Stay order set aside by another Bench of the same Court on the ground thatitwasmadeper
incuriam - Appeal to Supreme Court -Interpretation Ordinance (Cap. 2) as amended by Law No. 29 of 1974, section 21.
Constitution of Sri Lanka, Article 125 - Requirement that "any question relating to the interpretation oftheConstitution"
should be referred to Supreme Court - When Article 125 applicable.
The petitioner was the tenant of premises which the respondents sought to acquire under the Land AcquisitionAct.Twodays
prior to the date of taking possession of the land the petitioner made application to the Court of Appeal for ordersinthe
nature of writs of certiorari and prohibition. A bench of two judges made order ex-party staying all acquisitionproceedings
pending the hearing and disposal of the petitioner's application and issuing notice on the respondents. Another bench oftwo
judges took up the matter of the stay order as a "matter of urgency" and set aside the stay order on the ground thatithad
been made per incuriam in derogation of the provisionsofsection24oftheInterpretationOrdinance.Thepetitioner
obtained special leave to appeal to the Supreme Court, from this order.

Held :
The stay order was madeafterconsiderationandwastherefore'notmadeperincuriam.Whethersection24ofthe
Interpretation Ordinance applied to stay orders or not was a moot point, which, even if decided wrongly wouldnotmakethe
order an order per incur am.
A stay order is an interim order and not one which finally decides the case. This must be borne inmindwhenapplyingthe
principles of the per incur am rule. It would not be correct to judge such orders inthesamestrictmannerasafinal
order. The interests of justice required that a stay order be made as an interim measure.

Held further :
Although Article 125 of the Constitution requires any dispute as to the interpretation of the Constitution to be referredto
the Supreme Court it must be construed as dealing only with cases where the interpretation of the Constitution is drawninto
the actual dispute. The mere reliance on a Constitutional provision by a party need not necessarily involve thequestionof
the interpretation of the Constitution.
Observed that while it was competent for one Bench to set aside an order made per incuriambyanotherBenchofthesame
Court, it has been the practice for parties or their Counsel to bring the error to the notice oftheJudgeorJudgeswho
made the order so that he or they can correct the error.

Cases referred to

(1)Weerasooriya v. Sedambaram Chetty, 8 C.W.R. 238.
(2)Alasupillai v. Yavetpillai and another, (1949), 39 C.L.W. 107.
(3)Huddersfield Police Authority v. Watson, (1947) 2 All E. R. 193.
(4)Morrelle v. Wakeling, (1955) 2 W.L.R. 673(1955) 1 All E. R. 708(1955) 2 HB. 379.
(5)Young v. Bristol Aeroplane Co. Ltd, (1944) 2 All ER. 293, (1944) KB. 718, 171 L. T. 113.
(6)Broome v. Cassell & Co. Ltd., (1971) 2 All E.R. 187, (1971) 2 W.L.R. 853.

APPEAL from an order of the Court of Appeal.
H. L. de Silva with Miss M. Seneviratne, for the petitioner.
Shiva Pasupathi, Attorney-General, with G. P. S. de Silva. Deputy Solicitor Genera/ and D. C. Jayasuriya, State Counsel,for
the 1 st and 3rd respondents.
Mark Fernando with R. L. Perera, for the 2nd respondent.

April 20, 1979.
The petitioner is the tenant of premises bearing assessment No. 27, Pedris Road, Colombo 3. Thesepremisesaresubjectto
the provisions of the Rent Act. No. 7 of 1972. The landlord of the premises is one R.Coomaraswamy.Onthe17thOctober,
1977, the landlord instituted action No. 2579/RE in the District Court of Colombo praying inter aliafortheejectmentof
the petitioner as he required the premises for his own use and occupation. This action is pending in the DistrictCourt.On
9th November, 1978, the 2nd respondent requested the 1st respondent to acquire the said premises "for the purpose ofhousing
a part of the organisation coming within the purview" of his Ministry (1 R1). By anoticedated24.11.1978inaccordance
with the provisions of Section 4 of the Land Acquisition Act(Cap.460)(P3),theDistrictLandOfficerinformedthe
petitioner that as the said land was required for a public purpose the Government intended toacquirethesaidland.The
petitioner states that by a notice dated 12.12.78. the District Land Officer informed the petitioner that in pursuance ofan
order made by the 1st respondent in terms of section 38(a) of the Land Acquisition Act possession of the land would betaken
on behalf of the 3rd respondent at 10.30 a.m. on 15th December, 1978. On the 13th December,1978,thepetitionerfileda
petition in the Court of Appeal praying for a writ of certiorariquashingtheorderofpossessionandforawritof
prohibition against the 3rd respondent preventinghimfromtakingpossession.Thisapplicationappearstohavebeen
supported before a Bench of two Judges on the same day and that Bench made order staying all proceedings pending thehearing
and disposal of the petitioner's application in the Court of Appeal. Notice was orderedontherespondentsreturnableon
20th December. Paragraph 8 of the petition filed in this Court sets out the facts as they occurred on thatdateculminating
in the stay order. It is as follows:-

"8: At the hearing before the Court of Appeal on 13th December,whichwasheardbeforetheHon.JusticeRatwatteand
Honourable Justice Atukorale the Court drew attention of Counsel to section 24 of the Interpretation (Amendment) Law, No.29
of 1974 and Counsel (Miss M. Seneviratne) who appeared for the petitioner at the stage stated that this provision of lawdid
not apply to the application before Court. The Court then having considered the matterissuednoticeofthepetitioner's
application on the respondent returnableon20.12.1978andalsomadeorderstayingfurtherproceedingspendingthe
-petitioner's application for Orders in the nature of Writs of Certiorari and Prohibition."
The 1st respondent filed affidavit on the 20th December, 1978, pleading inter alia:-
(a)that the stay order made on 13.12.78 was "made per incuriam in derogation of the provisions of section 24ofthe
Interpretation Ordinance as amended by Act No. 18 of 1973 and Law No. 29 of 1974",
(b)that the Republic of Sri Lanka was theownerofthepremisesandthereforetheapplicationcouldnotbe
maintained, and
(c)that "no certiorari or prohibition lie (sic) in respect of the impugned proceedings".
The matter was taken up for hearing by two Judges of the Court of Appeal who were not the Judges that madethestayorder.
These two Judges decided to hear the parties "only on the question whether (this) Court acted perincuriaminissuingthe
stay order, as a matter of urgency". Both Judges have come to the conclusion that the "stay order was made perincuriamand
therefore made order that it be quashed. Cader, J: expressed the opinion that a stay order "is an incidental measurepending
the disposal of the main matter before Court. In this case it was incidental to the granting of the two WritsofCertiorari
and Prohibition". He then came to a conclusion as follows:-
"If, for instance, these two writs would be granted, substantial loss would have been caused tothepetitionerifhewas
thrown out of the premises for a period of time until the writs were allowed. Therefore, I am of the view that itshouldbe
taken into consideration along with the main dispute, namely, whether writs should issue or not."

Thereafter he quoted the provisions of section 24 of the Interpretation Ordinance (as amended) andthereforeheldthatno
stay order could issue against the respondents. He quashed the stay order as he came totheconclusionthatithadbeen
issued per incuriam. This last order appears to be somewhat in conflict with his earlier conclusion.Howeverthelongand
short of this reasoning is that the stay order is one made per incuriam because itcontravenestheexpressprovisionsof
section 24 of the Interpretation Ordinance. From this order the petitioner sought special leave to appeal to thisCourtand
we granted him leave.
The only question we need decide in this appeal is whether the stay order was made per incuriam since the order of theCourt
of Appeal has reserved all other "matters involved" for further hearing. In considering this question we mustbearinmind
that a stay order is an incidental order made in the exercise of inherent or implied powers of Court. Without such powerthe
court's final orders in most cases would if the petitioner is successful be rendered nugatory and theaggrievedpartywill
be left holding an empty decree worthless of all purposes. Vide Bertram C.J. in Weerasooriya v. Sedambaram Chetty (1).
Cader, J. himself considered the stay order in this case in the same light.
The Attorney-General contended that the stay orderwasonemadeperincuriam.HecitedthecaseofAlasupillaiv.
Yavetipillai and another (2) in which Basnayake, J. following thecaseofHuddersfieldPoliceAuthorityv.Watson(3)
stated: "A decision per incuriam is one given when a case or a statute has not been brought to the attentionfortheCourt
and it has given the decision in ignorance or forgetfulness of the existence of that case or statute." This statementisby
no means exhaustive. In Morrelle Ltd. v. Wakeling (4) at 686 the Court observed as follows:
"As a general rule the only cases in which decisions should be held to have been given per incuriamare thoseofdecisions
given in ignorance or forgetfulness of. some inconsistent statutory provision or ofsomeauthoritybindingonthecourt
concerned: so that in such cases some part of the decision or some step in the reasoning on which it is basedisfound,on
that account, to be demonstrably wrong. This definition is not necessarily exhaustive,butcasesnotstrictlywithinit
which can properly be held to have been decided per incuriam must, in our judgment, consistently with the stare decisisrule
which is an essential feature of our law, be in the language of Lord Greene M.R., of the rarest occurrence."
In Young v. Bristol Aeroplane Co. Ltd. (5) at 300, Greene, M. R.pointedparticularlytotwoclassesofdecisionsper
(i)a decision in ignorance of a previous decision of its own Court or of a Court ofco-ordinatejurisdictioncoveringthe
case, and
(ii)a decision in ignorance of a decision of a higher Court covering the case which binds the lower Court.

Lord Denning, M. R. was inclined to add another category of decisions - one where a long standing rule of the common lawhas
been disregarded because the Court did not have the benefit of a full argument before it rejected the common law.Broomev.
Cassell & Co. Ltd. (6) at 199. In applying these principles one must bear in mind that in this case we aredealingwithan
interim order and not an order which finally decided the case. It is clear from the petitioner's statement (notcontradicted
by the respondents) that the Court itself referred Counsel for the petitioner to theprovisions-ofsection24ofthe
Interpretation Ordinance. It could not therefore be said that thestayorderwasmadeinignoranceofitsexistence.
Counsel's position appears to have been that this provision was not applicable to the dispute beforetheCourt.Therewas
nothing in the section which expressly referred interim orders. It is clear therefore that the Court hadtodecidewhether
writs could issue or not and this could not be decided without notice being first issued on the respondents andaffording
them an opportunity of being heard. All this would have taken considerable time. The interests of justice thereforerequired
that a stay order be made as an interim measure. It would not be correct to judge such orders inthe same strictmanneras
a final order. Interim orders by their very nature must depend a great deal on a Judge's opinionastothenecessityfor
interim action. The Attorney-General stated that had the Court the benefit of a full argument itwouldnothavemadethe
stay order. This kind of argument gives little credit to the Judges and undue credit to thepleader.Besides,verylittle
argument and persuasion is necessary for a stay order. The Attorney-General contended that section 24 applied to stayorders
as well. This is a moot point. The Judges who made the stay order appeared to have thought otherwise. They mayberightor
they may be wrong. Assuming they are wrong - how does that make it an order per incuriam? If the orderappealedagainstis
allowed to stand it will open the flood gates for one Bench of the Court that disagrees with another'sinterpretation,made
after due consideration, to assume a jurisdiction that it does not have. Lam of opinion that the stay order inquestionwas
made after consideration and was not one made per incuriam.
The Attorney-General contended that it was competent for one Court to set aside an order made per incuriam byanotherBench
of the same Court. Generally this would be so. But it has been the practice of our Courts for partiesortheirCounselto
bring the error to the notice of the Judge or Judges who made the order so that he or theycancorrecttheorder.Indeed
this has always been a matter of courtesy between Bench and Bar and I regret to note thatithasnotbeendoneinthis
instance nor has the second Court thought it fit to direct Counsel to make the application to the Court thatmadethestay
Counsel have invited us to make order on constitutional disputes. It appears from the order of the Court of Appeal thatsome
dispute as to the interpretation of theConstitutiondidariseinthecourseoftheargument.Article125ofthe
Constitution requires any dispute on theinterpretationoftheConstitutiontobereferredtothisCourt.Whatis
contemplated in Article 125 is "any question relating to the interpretation of the Constitution" arisinginthecourseof
legal proceedings. This presupposes that in the determination of a real issue or controversybetweentheparties,inany
adversary proceedings between them, there must arise the need for an interpretation of the provisions oftheConstitution.
The mere reliance on a constitutional provision by a party need not necessarily involve the questionoftheinterpretation
of the Constitution. There must be a dispute on interpretation between contending parties. It would appear thatArticle125
is so circumscribed that it must be construed as dealing only with cases where theinterpretationoftheConstitutionis
drawn into the actual dispute and such question is raised directly as an issue between the parties or impingesonanissue
and forms part of the case of one party, opposed by the other, and which the Court mustofnecessitydecideinresolving
that issue.

No such reference has-been make to this Court. As the case has now to go back to the Court of Appeal we make no order onthe
submissions made by Counsel on the provisions of Articles 140, 143 and 168. The order of the CourtofAppealdeliveredon
8.1.79 is set aside and the case will now go back for further hearing. The Appellant will be entitled to costs.


WANASUNDERA, J. - I agree.

Appeal allowed.

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