Legal Services and Laws of Sri Lanka


SLR-1995 Vol.2-P17

SLR - 1995 Vol.2, Page No - 17

SUMANADASA

v.

HATHURUSINGHE
COURT OF APPEAL

GUNASEKERA, J., YAPA, J.

C.A. NO. 66/93

H. C. (N.W.P.) NO. 246/93

M.C. GALGAMUWA 7023/M

DECEMBER 15, 1994 AND JANUARY 13,1995.

Maintenance - Appeal to Provincial High Court - Order set aside - Appeal to the Court of Appeal - Jurisdiction oftheCourt
of Appeal to hear such appeals - Thirteenth amendment to the Constitution, Articles 138(1), 154P3, 154P3 (b),154P6-High
Court of the Provinces (Special Provisions) Act, No. 19 of 1990, S 9

An application for maintenance was dismissed by the Magistrate's Court, Galgamuwa. On appeal to the Provincial High Courtof
the North Western Province, the High Court set aside the Order.
Thereafter an appeal was lodged in the Court of Appeal. It was contended that, as the High Court exercised itspowersunder
Article 154P 3(b) of the Constitution, the appellant had no right of appeal.

Held:
(1) On a proper construction of Article 154P (3)(b), Article 154P(6) and Article 138(1), it is clear that a rightofAppeal
to the Court of Appeal has been expressly created. Article 154P3 (b) confers appellate and Revisionaryjurisdictiononthe
High Court and Article 154 P(6) provides that any person aggrieved by a decision of the High Court intheexerciseofits
jurisdiction under paragraph 3(b) may appeal therefrom to the Court of Appeal in accordance with Article 138.
(2) Article 154 (P)(6) itself has not limited the right of Appeal given by it to orders made by theHighCourtbywayof
appeal.

Cases referred to:
1. Piayadasa Guneratne v. Alan Thambinayagam 1992 S.C. Appeal No. 21/92, S.C. Minutes 25.11.1992 (B.A.L.J.) Vol. IV Part II,
Page I.

2. Abeygunasekera v. Setunga, S.C. Reference 1/94. C.A. 18/92 (P.H.C.) H.C. Colombo No. 22/91 M.C. Mount Lavinia No. 68129.
Decided on 8.6.1994.
APPEAL from the Provincial High Court of the North Western Province.
Sanath Jayatileka for appellant

Sunil F. A. Cooray for respondent.

May 12, 1995.

YAPA, J.
In this case the respondent filed an application for maintenance for herself and the child on 28.10.91intheMagistrate's
Court of Galgamuwa. After the evidence was taken on behalf of the respondent and the appellant,theLearnedMagistrateby
his order dated 25.08.93 dismissed the application for maintenance by the respondent, and gave two reasons forhisfinding.
Firstly, Learned Magistrate stated that the application for maintenance was not filed within 12 months of thebirthofthe
child and that there was no evidence before Court to prove that the child was maintained by the appellant at any timewithin
the 12 months period. Secondly, the Learned Magistrate stated that there was no evidence to corroborate the evidenceofthe
respondent.

Being aggrieved by this order of dismissal the Respondent appealedtotheprovincialHighCourtoftheNorthWestern
Province to have the order of the Learned Magistratesetaside.AftertheappealwasarguedbyCounseltheLearned
Provincial High Court Judge by his judgment dated 18.10.93 set aside the order of the LearnedMagistrateanddirectedthe
appellant to pay the Respondent a sum of Rs. 500/- per month as maintenance to the child. The LearnedHighCourtJudgein
his judgment stated that the Learned Magistrate was in error when he held that he could not entertaintheapplication,for
the reason that he had already entertained it, and had proceeded to inquire into it,andfurthertheLearnedHighCourt
Judge held that there was material to corroborate the evidence of the Appellant Respondent. It is from this judgmentofthe
Learned Provincial High Court Judge that the Appellant has appealed to this Court.
When this appeal was taken up for hearing on 06.12.94 the Learned Counsel for the Respondent raised apreliminaryobjection
and stated that this Court has no jurisdiction to hear and determine this appeal, as the appellant had no right of appealto
this Court in this case. Thereafter both the CounselfortheAppellantandtheRespondentagreedtosubmitwritten
submissions to this Court, so that this Court would be able to make an order in regard to the preliminary objection taken.
In the written submissions filed with regard to the preliminary objection raised by the Learned Counsel fortheRespondent,
it was stated that when the High Court heard the appeal in the present case, it was exercising its powers underArticle154
P(3)(b) of the constitution and that under the law the appellant had no right of appeal under any provision oflaw,tothe
Court of Appeal, against the said judgment of the Provincial High Court dated 18.10.93. Further it was submittedthatunder
Section 9 of the High Court of the Provinces (Special Provisions) Act No.19of1990therightofappealagainstthe
judgment of the Provincial High Court lies to the Supreme Court and that under Section 10 of saidActthejurisdictionof
the Supreme Court is an exclusive jurisdiction. In support of this contention the LearnedCounselhascitedthecaseof
Piyadasa Guneratne v. Alan Thambinayagam (1). The Learned Counsel for the Appellant on the other hand, arguedthatinview
of Article 154 P(6) of the Constitution and that as the appeal has been lodged according to the rulesmadebytheSupreme
Court, under Court of Appeal (Procedure for appeals from the High Courts established by Article 154 PoftheConstitution)
and therefore the Court of Appeal has jurisdiction to hear the appeal. It was also submittedthattheHighCourtofthe
Provinces (Special Provisions) Act No. 19 of 1990 does not take away the right of appealgrantedbytheConstitutionand
further it was contended that the decision in the case of Piyadasa Guneratne v. Alan Thambinayagam (Supra) has no bearingon
the question at issue. Finally the learned Counsel referred to the case of Abeygunasekera v. Setunga (2) , where it hasbeen
held that an appeal lies to the Court of Appeal from an order of the Provincial HighCourtmadeintheexerciseofits
revisionary jurisdiction.

It is to be noted that in the case of Piyadasa Guneratne v. Alan Thambinayagam (Supra) what was heldbytheSupremeCourt
was that Section 9 of Act, No. 19 of 1990 would not confer a right of appeal in respect of revisionaryordersoftheHigh
Court. In doing so the Court had regard to the fact that the power of revision is an extraordinary powerdistinctfromthe
appellate jurisdiction of the Court which is a statutory right and must be expressly createdandgrantedbystatute,and
further that Section 9 of Act, No. 19 of 1990 refers to orders made in the exercise oftheappellatejurisdictionofthe
High Court.

In the present case we are concerned with the question whether the Court of Appeal has the right toentertainandhearan
appeal from an order of the High Court excising its appellatejurisdiction.Todeterminethequestioninissueitis
necessary to examine whether the appellate jurisdiction oftheCourtofAppealprovidedunderArticle138(1)ofthe
Constitution to entertain appeals lodged in the exercise oftherightofappealgrantedbyArticle154P(6)ofthe
Constitution has any limitations. To decide this matter one has to interpret the provisions of Article 154P(3)(b),Article
154 P(6) and Article 138(1) of the Constitution.
Article 154 P(3) says ...
"Every such High Court shall -
(a) .................
(b) notwithstanding anything in Article 138 and subject to any law,exercise,appellateandrevisionaryjurisdictionin
respect of convictions, sentences and orders entered orimposedbyMagistrate'sCourtsandPrimaryCourtswithinthe
Province."
Article 154 P(6) says ...

"Subject to the provisions of the Constitution and any law, any person aggrieved by a final order, judgmentorsentenceof
any such Court in the exercise of its jurisdiction under paragraph (3)(b) . . ., may appeal therefrom to the Court ofAppeal
in accordance with Article 138

Article 138(1) says ...
"The Court of Appeal shall have and exercise subject to the provisions of theConstitutionorofanylaw,anappellate
jurisdiction for the correction of all errors in fact or in law which shall be committed by the High Courtintheexercise
of its appellate or original jurisdiction or by any Court of First Instance, tribunalorotherinstitutionandsoleand
exclusive cognizance, by way of appeal, revision and restitutio in integrum, of allcauses,suits,actions,prosecutions,
matters and things of which such High Court,CourtofFirstInstance,tribunalorotherinstitutionmayhavetaken
cognizance".

On a proper construction of these relevant provisions it is clear that a right of appeal totheCourtofAppealfroman
order of the High Court has been expressly created and granted by virtue of Article154P(6)andArticle138(1)ofthe
Constitution. Further it is to be noted that as submitted by the learned Counsel for the respondent, this right to theCourt
of Appeal has not been affected or limited by virtue of Section 9or10oftheHighCourtoftheprovinces(Special
Provisions) Act, No. 19 of 1990.

These provisions of the Constitution referred to above wereconsideredrecentlybytheSupremeCourtinthecaseof
Abeygunasekera v. Setunga (Supra) cited by the Learned Counsel for the appellant. In that case it wasstatedthat"Article
154 (3)(b) conferred "appellate and revisionary" jurisdiction on the High Court. Article 154 P(6) providesthatanyperson
aggrieved by a decision of the High Court in the exercise of its jurisdiction inter alia, under paragraph (3)(b)mayappeal
there from to the Court of Appeal in accordance with Article 138. Thus Article 154 (P)(6) itself has notlimitedtheright
of appeal given by it to orders made by the High Court by way of appeal. However, that Article refersbacktoArticle138
which spells out the jurisdiction of the Court of Appeal and the mannerofitsexercise."TheSupremeCourtthereafter
interpreting these provisions decided that the Court of Appeal has jurisdiction to hear an appealagainstthedecisionof
the High Court, whether given by way of an appeal or in the exercise of its revisionary jurisdiction.

Therefore we hold that the appellant in this case has the right to appeal to this Court from the judgment oftheProvincial
High Court heard by way of an appeal from the Magistrate's Court. Accordingly we overrule thepreliminaryobjectionraised
by the learned Counsel for the respondent and we direct that this case be fixed for argument on a date suitable to Counsel.
GUNASEKERA, J. - I agree.
Preliminary objection overruled. Case fixed for argument.


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