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.
Vajira Punyajith Fernando
No 19 A/4,
Hanthana Housing Scheme,
Hanthana, Kandy
Plaintiff
CP/HCCA/Kandy /116/2019 FA
D.C. of Kandy, Case No. 155/09DMS
Vs
1. Dammika Gihan Indika
Sampath Jayawickrama,
2. Chithra Indrawathi
Jayawickrama,
Both of
No 250,
Wattaranthenna Road,
Kandy.
3. Jo Jo’s (Pvt) Ltd,
No 41/1/1,
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CP/HCCA/Kandy /116/2019 FA
Colombo Street,
Kandy.
Defendants
NOW BETWEEN
1. Dammika GihanIndika Sampath
Jayawickrama,
No 250, Wattaranthenna Road,
Kandy.
1st Defendant- Petitioner
Vajira Punyajith Fernando,
No 19 A/4,
Hanthana Housing Scheme,
Hanthana, Kandy
Plaintiff-Respondent
2. Chithra Indrawathi Jayawickrama,
No 250, Wattaranthenna Road,
Kandy.
2ndDefendant- Respondent
3. Jo Jo’s (Pvt) Limited
No 41/1/1,
Colombo Street,
Kandy.
3rd Defendant-Respondent
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AND NOW BETWEEN
1. Dammika Gihan Indika Sampath
Jayawickrama,
No 250, Wattaranthenna Road,
Kandy.
1st Defendant- PetitionerPetitioner
Vs.
Vajira Punyajith Fernando,
No 19 A/4,
Hanthana Housing Scheme,
Hanthana, Kandy
Plaintiff-Respondent-Respondent
Chithra Indrawathi Jayawickrama
No 250, Wattaranthenna Road,
Kandy.
2nd Defendant- Respondent Respondent
Jo Jo’s (Pvt) Limited
No 41/1/1,
Colombo Street,
Kandy.
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3rd Defendant-RespondentRespondent
Before:
Hon. K.M.S. Dissanayake - HCJ [HCCA]
Hon. Dr. Sumudu Premachandra - HCJ [HCCA]
Counsel:
Romesh Karalliyadde instructed by Maneesha
Seneviratne for the 1st Defendant- PetitionerPetitioner
Dr Sunil Abeyratne with Kanishka Bandara
Weediyegedara instructed by Upali Bogahapitiya
for the Plaintiff-Respondent-Respondent
Written Submissions
12/10/2020 & 07/12/2020 & 09/12/2021 &
13/07/2023 by the Petitioner
tendered on
28/08/2023 by the Plaintiff- Respondent
Argued on:
27/07/2023
Decided on:
16/02/2024
Dr. Sumudu Premachandra, HCJ. [Civil Appeal]
1] This is an action for recovery of money of sum of Rs 20, 00,000 /= by the
Plaintiff-Respondent-Respondent against the 1st, now is, the Petitioner, in this
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appeal,
2nd,
and
3rd
(Company)
are
now,
the
Defendant-Respondent-
Respondents. The action was filed under summary procedure. The 1st
Defendant who borrowed the 2 million from the Plaintiff and 1st and 2nd were
the Directors of the 3rd Defendant Company. As a security to the 2 million, a
cheque of two million was issued which was later dishonored by N.D.B. Bank
resulting this law suit.
2] Once the form 19 summonses were served on the Defendants, the
Defendants failed to file objections. Then the matter was considered by the
court and the Defendants were allowed to file answer with sureties, however,
they failed to do so. Then, an ex parte judgment was entered against all three
Defendants in favour of the Plaintiff on 26/04/2013.
3] When, the ex parte judgment was served, the 1st and 2nd Defendants purged
default. The lower court after, the deliberation of the facts, and decided that the
1st Defendant to defend the case after deposing 2 Million in cash and 2nd
Defendant to defend the case without any security, on 14/07/2014.
4] Thereafter 2nd Defendant filed answer and the case was laid by against the
2nd Defendant. The 1st and 3rd Defendants did not file answer as ordered. Then,
the judgment was entered ex parte. On 21/08/2017, the writ was executed
against the 1st Defendant.
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4] It is seen that a property belongs to the 1st Defendant, deed bearing No 3180
was seized and put on an auction to recover the said sum of money. The 1st
Defendant objected for that the auctioned being held and said objected was
overruled by learned trial judge on 07/09/2018. The 1st Defendant has made
an appeal against the said order and it was rejected as the petition of appeal
filed out of time, after 60 days.
5] Again, the same procedure was followed and property seized and put on an
auctioned. The 1st Defendant again made objection to writ being executed
which was again refused by the learned trial judge on 19/03/2019. Being
aggrieved to the said judgment, the 1st Defendant, now, prefers this appeal.
Thus, one can observe, this matter was prolonged and peculiar in nature.
6] When, this matter was to be argued, the learned senior counsels of the
parties agreed and urged to resolve the preliminary objections and the main
appeal on the strength of written submissions. I now consider the merits of this
appeal.
7] The preliminary objection is considered first. The Plaintiff has raised a
preliminary objection with regard to the maintainability of the action. The
Plaintiff raised that the appeal is misconceived since this is an order, thus, the
1st Defendant should have filed a leave to appeal instead of final appeal, and
the appeal is bad in law.
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8] The law in this involves to statutory provisions. These are sections 754(1), (2)
and (5) of the Civil Procedure Code and section 5 of the High Court of the
Provinces (Special Provisions) Act, No. 10 of 1996. Those are reproduced below
for the clarity.
“754 (1) Any person who shall be dissatisfied with any judgment,
pronounced by any original court in any civil action, proceeding or matter
to which he is a party may prefer an appeal to the Court of Appeal against
such judgment for any error in fact or in law.
(2) Any person who shall be dissatisfied with any order made by any
original court in the course of any civil action, proceeding or matter to
which he is, or seeks to be a party, may prefer an appeal to the Court of
Appeal against such order for the correction of any error in fact or in law,
with the leave of the Court of Appeal first had and obtained.
(5) Notwithstanding anything to the contrary in this Ordinance, for the
purposes of this chapter;
Judgment means any judgment or order having the effect of a final
judgment made by any civil court;
and Order means the final expression of any decision in any civil action,
proceeding or matter, which is not a judgment.”
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9] The section 5 of the High Court of the Provinces (Special Provisions) Act, No.
10 of 1996; reads as follows:
“(5) (1) Any person who is dissatisfied with any judgment pronounced by a
High Court established by Article 154P of the Constitution, in the exercise
of its jurisdiction under section 2, in any action, proceeding or matter to
which such person is a party may prefer an appeal to the Supreme Court
against such judgment, for any error in fact or in law.
(2) Any person who is dissatisfied with any order made by a High Court
established by Article 154P of the Constitution, in the exercise of its
jurisdiction under section 2, in the course of any action, proceeding or
matter to which such person is, or seeks to be, a party, may prefer an
appeal to the Supreme Court against such order for the correction of any
error in fact or in law, with the leave of the Supreme Court first had and
obtained.
(3) In this section, the expressions “judgment” and “order” shall have the
same meanings respectively, as in section 754(5) of the Civil Procedure
Code (Chapter 101).”
10] Now, the pivotal question is to decide whether the effect of the decision
dated 19/03/2019 is an order or a judgment. To decide this, the apex courts
have introduced that “application approach” to be applied.
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11]
Recently,
in
The
Maharaja
Organisation
Limited
vs
Viacom
International Inc. and other, SC APPEAL NO: SC/CHC/APPEAL/4/2002,
Decided on: 30.06.2021, Mahinda Samayawardhena, J. elaborated how to
apply the test as below;
“The application approach contemplates only the nature of the application
made to Court, not the order delivered per se. In accordance with this
approach, if the order given in one way will finally dispose of the matter in
litigation, but if given in the other way will allow the action to continue, the
order is not final but interlocutory, in which event, leave to appeal is the
proper remedy. In other words, according to the application approach, if
the order, whichever way it is given, will, if it stands, finally determine the
matter in litigation, the order is final.”
12] The impugned order dated 19/03/2019 is an ex tempore order. In that, it
was held since there was an order dated 07/09/2018 of the court, the said
order act as bar to decide the case (Res Judicata), thus, the application was
refused.
13] On careful perusal, I see, if the application is allowed, there will be inquiry
under 344 of the Civil Procedure Code or other legal proceedings to be started
for cancellation of the auction and vindication of rights. These proceedings are
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judicial, not ministerial. In that event, it is clearly seen that the order did not
end the litigation finally, if the order went other way round. If so, the correct
application was to be filed is a leave to appeal application, not a final appeal. In
this case, the final appeal was filed on 16/05/2019 at 10.50am. In line with
the above consideration, the appeal is bad in law.
14] Thus, we uphold the preliminary objection. We see that it is redundant to
consider other contention of the parties, since the appeal is bad in law, without
the correct foundation, it would be waste of precious judicial time.
15] Thus, the appeal is dismissed with costs.
Dr. Sumudu Premachandra, HCJ (C.A)
High Court Judge of the Civil Appellate High
Court - Kandy
I agree.
K.M.S. Dissanayake, HCJ (C.A)
High Court Judge of the Civil Appellate
High Court - Kandy
Sumudu/-
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