Application of application approach to final appeal

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, Page 1 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 Page 2 CP/HCCA/Kandy /116/2019 FA 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. Page 3 CP/HCCA/Kandy /116/2019 FA 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 Page 4 CP/HCCA/Kandy /116/2019 FA 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. Page 5 CP/HCCA/Kandy /116/2019 FA 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. Page 6 CP/HCCA/Kandy /116/2019 FA 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.” Page 7 CP/HCCA/Kandy /116/2019 FA 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. Page 8 CP/HCCA/Kandy /116/2019 FA 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 Page 9 CP/HCCA/Kandy /116/2019 FA 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/- Page 10 CP/HCCA/Kandy /116/2019 FA