Legal Services and Laws of Sri Lanka


SLR-2004 Vol.2-P7

SLR - 2004 Vol.2, Page No - 7

DHARMASIRI AND OTHERS

v

JANATHA FERTILISER ENTERPRISE LTD AND OTHERS
COURT OF APPEAL

IMAM, J.

C.A. 2211/02

JULY 13,2004
Application for writ of certiorari - Failure of the respondents to comply with Supreme Court Rule 22(3) of 1990-Rightto
appear deprived - Respondents sought leave to appeal to the Supreme Court against the said order - Is itafinalorder?-
Could the Court of Appeal grant leave? - Constitution, Art. 128 (1) Civil Procedure Code - Section 575 (5).

The petitioners sought writs of certiorari and mandamus. The Court of Appeal byitsorderof24.06.2004,heldthatthe
respondents having failed to comply with the mandatory Appellate Rules cannot appear in the proceedings in opposition tothe
petitioner and fixed the application of the petitioners for inquiry. The respondents sought leave to appeal against thesaid
order to the Supreme Court.
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Held:

(i) The Court of Appeal has the power to grant leave to appeal only from a final order.

(ii) The impugned order is an interim order and not a final order.

APPLICATION for leave to appeal to the Supreme Court from an order depriving the respondents of their right to appear in
opposition to the petitioners, with the petitioners' case being fixed for inquiry.

Cases referred to:
1. Siriwardena v Air Ceylon Ltd., - (1981) 1 SRI LR 286

2. Kulatilake v Karunawathie and others - (1989) 1 SRI LR 303

3. Brooke Bond(Ce) Ltd., v Stassen Exports Ltd., - (1990) 1 SRI LR 61

4. Bank of Ceylon v Bank Employees Union - SC App. No. 30/2002 decided on ..............

Dr. Jayantha de Almeida Guneratne, P.C. with Viran Corea for petitioners.
Sathya Hettige, Additional Solicitor-General with Euresha de Silva, State Counsel for 1st, 2nd, 4th and 5th respondents.
Cur. ad. vult
Order
On the 12th of July 2004, attorney-at-law for the 1st, 2nd, 4th and 5th respondents tendered a LeavetoAppealapplication
against the order of this Court dated 24.6.2004 in terms of section 22(3) oftheSupremeCourtRules1990.Astatement
containing the questions of law werealsoannexedtothisapplication.President'sCounselforthepetitionermade
submissions that this Court has No Jurisdiction to entertain suchanapplicationastheordermadebythisCourton
24.6.2004 was an Interim Order and not a Final Order.

The learned ASG contended that the Order dated 24.6.2004 was a Final Order, as the respondents were precluded frompartaking
in the main case as a result of the aforesaid Order, and thus the respondents had been deprived of a right of audience.

Learned President's Counsel submitted that the aforesaid order is an Interim Order as the relief claimed bythepetitioners
in this
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case has not been inquired into and thus the proceedings in this case are not concluded. Learned ASG submitted thatinview
of the aforesaid order the 1st, 2nd, 4th and 5th respondents were precluded from taking part in future proceedings.
Article 128(1) of the Constitution states that an appeal shall lie to the Supreme Court from any Final Order of the Courtof
Appeal in any matter or proceedings if the Court of Appeal grants Leave to Appeal to the Supreme Court exmeromotu.Hence
this Court has to examine whether the order dated 24.6.2004 is a Final Order or an Interim Order.

Rule 22(1) of the Supreme Court Rules of 1990 refers to a party aggrieved by aFinalOrderforLeavetoAppealtothe
Supreme Court. In Siriwardene v Air Ceylon Limited(1) the question as to whether an Order is a Final Order was determinedby
Chief Justice Sharvananda with Justice P. Colin-Thome and Justice P. Ranasinghe agreeing. The Judgment stated "Theteststo
be applied to determine whether an Order has the effect of a Final Judgment and so qualifiesasaJudgmentundersection
754(5) of the Civil Procedure Code are as follows.

1) It must be an Order finally disposing of the rights of the parties.
2) The Order cannot be treated as a Final Order, if the suit or the action is still leftalivesuitoractionforthe
purpose of determining the rights and liabilities of the parties in the Ordinary way.
3) The finality of the order must be determined in relation to the suit.
Section 754(5) of the Civil Procedure Code defines a Judgment and Order as follows.
"Judgment" means any Judgment or Order having the effect of a Final Judgment made by any Civil Court and"Order"meansthe
final expression of any decision in any civil action proceeding or matter, which is not a Judgment.

In this instant case the Petitioners have sought for writs of certiorari, Prohibition, and Mandamus. BytheOrderofthis
Court dated 24.06.2004, I held that the aforesaid respondents having failed to
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comply with the mandatory appellate rules were deprived of their right to appear in these proceedings inoppositiontothe
petitioners. The Order further stated that "The matter of the application of the petitioners is tobefixedforinquiry".
Thus this case is not concluded by Order dated 24.6.2004.

Hence I hold that the Order dated 24.06.2004isanInterimOrderandnotaFinalOrder.Furthermoretheaforesaid
respondents have other remedies available to them. With this regard in Kulatileke v Karunaratne and others(2) JusticeA.de
Z. Gunawardene held "that the Court of Appeal only has the power to grant leave toappealfromaFinalOrder,Judgment,
Decree or Sentence of the Court of Appeal. The circumstances under which the SupremeCourtexercisesitsjurisdictionto
grant special Leave to Appeal is much wider."

Furthermore in Brooke Bond (Ceylon) Ltd v Stassen Exports Ltd. and another(3) it was held that in law an InterlocutoryOrder
is one which is made or given during the progress of the action, butwhichdoesnottherebydisposeoftherightsof
parties. It is incidental to the principal object of the action, namely the Judgment.

The learned Additional Solicitor General referred to Bank of Ceylon v Ceylon Bank Employees Union (4) where, it washeldby
Justice Gunasekera with Justice Ismail and Justice Yapa agreeing thatthefailureoftherespondenttofileacaveat
opposing the grant of Special Leave does not preclude the respondent from being heard at the hearing of theappeal.However
in the instant case, there has been no application for Special Leave to Appeal as yet.

The line of decisions in our superior courts have held that parties should comply with the Rules of Court.
For the aforesaid reasons, I disallow the application of the 1st, 2nd, 4th and 5th respondents anddismisstheapplication
for Leave to Appeal to the Supreme Court. No costs.
Leave to appeal to the Supreme Court refused.


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