Legal Services and Laws of Sri Lanka
SLR - 1996 Vol.1, Page No - 294
WICKREMASINGHE AND OTHERS
CORNEL PERERA AND OTHERS
DHEERARATNE, J. AND
S.C. (S. L. A.) NO. 49/96.
C.A. REVISION APPLICATION NO. 889/95.
D.C. COLOMBO NO. 4413/Spl.
15 JULY, 1996.
Application for review of order made by the Supreme Court by the court making orderorbyreferencetoafullerbench-
Difference between jurisdiction to grant special leave to appeal and appellate jurisdiction.
Leave to appeal to the Supreme Court can be granted either by the Court of Appeal under Article128(1)orbytheSupreme
Court under Article 128(2) of the Constitution. When the Court of Appeal grants leavetoappealitdoesnotpurportto
correct errors either of inferior Courts or of its own. Obtaining leave is a condition precedent toinvokingtheappellate
jurisdiction of this Court, and the grant of leave only involves considering whether the matter isfitforreview.Itis
thus distinct from the appellate jurisdiction of the Court of Appeal.
In the same way, when the Supreme Court grants leave under Article 128(2), it exercises a jurisdiction which isanteriorto
and distinct from its appellate jurisdiction. The proceedings in respect of leave, are thus distinct from the appeal itself.
In any event, even if in a broader sense they can loosely be regarded as being part of theappellatejurisdiction,yetit
has two distinct stages, involving two distinct issues, the first is whether leave ought to be granted, and thatdependson
whether the question is important enough to merit adjudication by the highest court, and the second is, at the appealstage,
to find the right answer to that question. Thus it may happen that even if thisCourtthinksthatprobablythequestion
raised must be answered adversely to the Petitioner, yet the Court may grant leave because it is in the public interestthat
that question should be finally and authoritatively decided by the Supreme Court.
The Petitioners' application for special leave to appeal was concluded on 28.2.96 andhencecouldnotbereferredunder
Article 132 (of the Constitution) to a "fuller bench".
The first part of the order which the petitioners seek to review for the secondtime,permitsandrequirestheDistrict
Court to decide (and not to delay) the important questions of law which all parties concede are involved in theaction.The
second part of the order, review of which the petitioners now seek (although they did not in March 1996) merelypermitsthe
status quo to prevail until the interim injunction inquiry is over. Although asserting that thatorderwaswrong,Counsel
made no effort to show in what respect the Court's reasoning was faulty. Thus there was no ground for the secondapplication
The application for special leave was finally concluded when the order of 28.2.96 was made, and it cannotnowbere-opened
before another bench or be referred by His Lordship the Chief Justice to a "fuller bench". Itwasdulylistedbeforethe
present bench of the Supreme Court and no ground for review has been established.
Cases referred to :
1. De Silva v. Fernandopulle S.C. Nos. 66 & 67/95 S.C. Minutes of 9.7.96.
2. Moosajees v. Fernando (1966) 68 NLR 414.
3. Liyanage v. The Queen (1965) 68 NLR 265.
APPLICATION for review by the Supreme Court of its own order or by reference to a fuller bench.
M.A. Sumanthiran for the Defendant Respondent-Petitioners.
S. Sivarasa P.C. with S.L. Gunasekera, S. Mahenthiran, Nihal Fernando andN.R.SivendranforthePlaintiff-Petitioner-
July 26, 1996.
This is an application, filed on 7.5.96, to "constitute a fuller bench toreviewtheordersdated21stMarchand28th
February 1996", and to set aside those orders.
His Lordship the Chief Justice said that he did not think that he had the power to refer this matter to afullerbenchand
directed that it be listed before the same bench which made those orders, and accordingly it came upbeforethisbenchon
The facts are fully set out in our order dated 21.3.96. The Plaintiff instituted action intheDistrictCourtchallenging
his purported removal from the office of Chairman and Managing Director (but not Director) of the12th DefendantCompany.
An enjoining order was made, and subsequently extendedCounsel for the1stto6thand12thDefendants-thepresent
Petitioners - stated that the last extension of that enjoining order was operative up to2ndFebruary,1996.Thepresent
Petitioners made an application in revision, asking the Court of Appeal to revise the order of 30.11.95 (inrespectofthe
enjoining order), to vacate the enjoining order issued, toupholdapreliminaryobjectionanddismissthePlaintiff's
action, and to stay the proceedings in the District Court pending the hearing and determination of the revisionapplication.
On 30.1.96 the Court of Appeal issued notice and made order staying all further proceedings in the District CourttheCourt
made no reference whatever to the enjoining order, although it was still in force.
The application for special leave to appeal against the order made on30.1.96wasconsideredonseveraldates,andon
28.2.96 (1) special leave was granted by this bench upon the question whether the Court of Appeal hadthejurisdictionand
/or the discretion to make interim orders having the effect ofstayingallproceedingsintheDistrictCourt,andin
particular the Plaintiff's application for interim injunction and thePlaintiff'sactionitself (2)pendingthefinal
hearing and determination of the appeal, the operation of the interim order made by the Court of Appeal was stayed,andthe
District Court enjoining order was variedand (3) the Court also made the following order:
"Notwithstanding any order already made by the Court of Appeal, the District Court of Colombo is directed to proceed to
hear and determine the Plaintiff's application for interim injunction and theactionasexpeditiouslyaspossible,
giving precedence to that casethe District Court is directed to call this case on 8.3.96, for the purposeoffixing
dates in respect of the interim injunction inquiry, which Counsel agree can be disposed of without oralevidence,and
to conclude that inquiry on or before 10.6.96and the enjoiningordergrantedbytheDistrictCourtwillstand
extended and be operative [subject to certain modifications]upto10.6.96,ortheconclusionofthatinquiry,
whichever is earlier."
In their petition filed on 13.3.96 (the first application for review) the Petitionersdidnotseekreviewoftheorder
granting special leave, the stay of the Court of Appeal's interim order, and the variation of the District Court'senjoining
order. (Learned Counsel now appearing for the Petitioners also stated that he did not seek review in respect of that partof
In the first application, the Petitioners prayed for the deletion of the above-quoted paragraph from theorderof28.2.96,
and asked that a larger bench be constituted to hear theirapplication.However,atthehearing,learnedCounselthen
appearing for the Petitioners stated that he had no complaint in respect of the last part of that order,butsoughtreview
of the first part of that order, namely the direction to the District Court to proceed with the hearing.
But learned Counsel now appearing for the Petitioners states that they now seek reviewofthewholeoftheabove-quoted
paragraph of the order of 28.2.96.
Counsel submitted that we should recommend to His Lordship the Chief Justicethatthesecondapplicationforreviewbe
referred to a "fuller bench", or to a differently constituted bench. He contends that :
(1) despite the recent decision of a bench of five Judges of this Court in de Silva v. Fernandopulle (1) an ordermade
by one bench can be reviewed by a differently constituted bench or by a fuller bench
(2) Moosajees v. Fernando,(2) is authority for the proposition that a matter which has not beenfinallydisposedof
can be re-examined by another, differently constituted benchin the present instance this Courtcommencedexercising
its appellate jurisdiction, when granting special leave, and the exercise of that appellate jurisdictionhasnotyet
(3) the Plaintiff-Respondent is not entitled to the substantive relief which he sought in the District Court,andthe
impugned portion of our order of 28.2.96 gives him, by way of interim relief, that which he cannot get ultimatelyand
(4) in the course of the submissions in February, the bench had suggestedthatthepartiesmightconsidercertain
agreements or undertakings on the basis of which the litigation then pending in the District Court (namely, the interim
injunction inquiry and the trial) might continue, during the pendency of the appeal in this Court, andthatuponthe
Petitioners not agreeing to any such adjustment, the order made on 28.2.96incorporatedallthosesuggestions and
thereby that order caused vexation to the Petitioners.
Learned Counsel for the Petitioners tried to brush aside the unanimous decision of a bench of fiveJudgesindeSilvav.
Fernandopulle, with the single sweeping submission that the Courthavingheldthatanapplicationforreviewmustbe
considered by the same bench, nevertheless went on to review, at great length, the impugned judgment on the merits, andthen
dismissed that application. It is unfortunate that the following observations of Amerasinghe, J., in the course of acareful
and comprehensive judgment, seem to have escaped Counsel's attention:
"the course of action we take in the extraordinary circumstances of this case should not be regarded as a precedent for
departing from the rule established by practice. An exception confirms the rule."
Amerasinghe, J. found that there were no grounds for holdingthattherewerecircumstanceswhichbroughttheimpugned
decision within the scope of the inherent powers of this Court. It wasinthesecircumstancesthatthematterwasnot
referred to the original bench. It is wholly unjustifiable now to ask that theexceptionbetreatedasbeingtherule,
particularly where the circumstances are anything but extraordinary. Indeed, what is extraordinary in this caseistheway
in which the circumstances have somehow conspired to delay the decision of the substantive questions.
Moosajees v. Fernando does not assist the Petitioners at all. There a bench of five judges made an order uponapreliminary
question of jurisdiction in certain writ applicationsthat order did not result in a finalorder(allowingordismissing
the applications)at a later stage in those applications, a differently constituted bench (one of the originalfiveJudges
not being conveniently available) reviewed the earlier order, in view of the "unique circumstance" that in themeantimethe
error of the former order was manifested by an intervening decision of the Privy Council (in Liyanage v. TheQueen.(3))The
proceedings had not attained finality - because a decree disposing oftheapplicationshadnotbeenentered.Herethe
proceedings in the special leave application hadattainedfinalityon28.2.96 theonlymatterwhicharoseinthat
proceeding had been finally determinedand nothing more was required to give that order finality.LearnedCounselargued,
however, that the appellate jurisdiction of this Court also extended to the consideration of the application forleave,and
that until the appeal is finally determined, the order granting leave can be reviewed. Leave to appeal to theSupremeCourt
can be granted either by the Court of Appeal under Article 128(1) or by this Court under Article 128(2). Counsel arguedthat
when the Court of Appeal grantedleave,itdidsointheexerciseofitsappellatejurisdiction.Butthatseems
misconceived. Under Article 138 the appellate jurisdiction of the Court of Appeal is to correct errorsbyinferiorCourts.
When it grants leave, it does not purport to correct errors either of inferior Courts or of its own.Obtainingleaveisa
condition precedent to invoking the appellate jurisdiction of this Court, and the grant of leaveonlyinvolvesconsidering
whether the matter is fit for review. It is thus distinct from the appellate jurisdiction of theCourtofAppeal.Inthe
same way, when the Supreme Court grants leave under Article 128(2), it exercises a jurisdictionwhichisanteriortoand
distinct from its appellate jurisdiction. The proceedings in respect of leave are thus distinct from theappealitself.In
any event, even if in a broader sense they can loosely be regarded as being part of the appellate jurisdiction,yetithas
two distinct stages, involving two distinct issues: the first is whether leave ought tobegranted,andthatdependson
whether the question is important enough to merit adjudication by the highest Court, and the second is, at the appealstage,
to find the right answer to that question. Thus it may happen that even if thisCourtthinksthatprobablythequestion
raised must be answered adversely to the petitioner, yet the Court may grant leave because it is in the public interestthat
that question should be finally and authoritatively decided by this Court. The Petitioners' application for special leaveto
appeal was concluded on 28.2.96, and hence could not be referred under Article 132 to a "fuller bench".
In elaborating the Petitioner's third contention, learned Counsel seized the opportunity toattackthePlaintiff,calling
him a self-confessed fraud and a wrongdoer in control of the company. He may be right or wrong, buttheonlyissuebefore
the Court was whether there was a substantive question of law involvedwhether the Court of Appeal hadthepowertostay
all further proceedings in the District Court, including the interim injunction inquiry and the trial. Obviously, therewas
neither in the first application for review nor in the second did Counsel disputethat.Havinggrantedspecialleaveto
appeal on that question, the Court had then to decidewhatwastohappeninthemeantimeshouldtheDistrictCourt
proceedings be stalled. Should the status quoimmediatelypriortotheinstitutionoftheDistrictCourtactionbe
maintained ? On 21.3.96 we set down at length our reasons for making our order of 28.2.96, and learned Counsel hadnotsaid
a word about those reasons. Not only are hisallegationsagainstthePlaintiffirrelevantbutiftheywere-relevant,
reference must have been made to them in the board minutes relating to his removal. When we pointed out thatthesehadnot
been produced, Counsel insisted that they had. However, after taking time to peruse the voluminous brief, he hadtoconfess
that they had not been made available to any of the three Courts which dealt with this case. In any event,byallowingthe
District Court proceedings to continue this Court ensured that the serious questions which arose (some of which wementioned
in our order of 21.3.96) would receive a speedy determination, instead of being delayed interminably, pending proceedingsin
this Court and in the Court of Appeal. Further the interim order which we made was to be of short duration, andwouldcease
to be operative when the District Court made order in the interim injunction inquiry.
As for Counsel's complaint about suggestions for settlement, those were not in respect of the grant ofspecialleave.They
were made in order to ascertain whether, if special leave was granted, whether the parties could agree on how best toensure
the expeditious disposal of the inquiry and the trial, andtominimisethepossibleprejudicetoallpartiesinthe
meantime. Our suggestions to consider whether inquiry and trial could be taken up together (in order to avoid duplicationof
proceedings), and possibly dealt with wholly or mainly on documents, were notaccepted.Ourorderneitherrequiredsuch
consolidation nor excluded oral proceedings. Further, our order modified the DistrictCourtenjoiningorderbyexcluding
restraints on the removal of the Plaintiff from the post of Chairman and on the 2ndDefendantfunctioningasadirector.
Thus it is quite incorrect to say that those suggestions were wholly incorporated in the order. In anyevent,makingthose
suggestions did not in any way prejudice the Petitioners, and learned Counsel conceded that iftheothergroundonwhich
review was sought failed, this ground did not suffice.
To sum up, the first part of the order which the Petitioners seek to review for the second time,permitsandrequiresthe
District Court to decide (and not to delay) the important questions of law which all partiesconcedeareinvolvedinthe
action. The second part of the order, review of which the Petitioners now seek (although they did not in March1996)merely
permits the status quo to prevail until the interim injunction inquiry isover.Althoughassertingthatthatorderwas
wrong, Counsel made no effort to show in what respect our reasoning was faulty. Thus therewasnogroundforthesecond
application for review. The application for special leave was finally concluded when the order of 28.2.96 wasmade,andit
cannot now be reopened before another bench or be referred by his Lordship the Chief Justice toa"fullerbench".Ithas
been duly listed before this bench, and no ground for review hasbeenestablished.Indeed,thepresentapplicationfor
review is wholly without merit. The change in position after the first application, and the attempt tobringinextraneous
and irrelevant matters, lead to the conclusion that it was also a misuse of the process of this Court,andthereiscause
for the complaint of learned President's Counsel on behalf of the Plaintiff, that his client hasbeenundulyandunfairly
The application is dismissed, with costs in a sum of Rs. 20,000/payable by the Petitioners to the Plaintiff.
DHEERARATNE, J. - I agree.
WIJETUNGA, J. - I agree.