Professional Documents
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Ca PHC 162 2002
Ca PHC 162 2002
I1 Thennakoon Mudiyanselage
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Gunathillake,
I Near Paddy Marketing Board,
PotanKatuwa,
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Kantale. f
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RESPONDENT - PETITIONER - II
APPELLANT I
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-Vs-
Aluthge Wijedasa,
, Divisional Secretary,
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I Divisional Secretariat,
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I Kantale.
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I COMPLAINANT - RESPONDENT-
II RESPONDENT
Before: K K Wickremasinghe 1
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I P. Padman Surasena 1
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1 Counsel; Titus Padmasiri with J R Duglas for the Respondent - Petitioner
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- Appellant.
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Sobitha Rajakaruna DSG for the Complainant Respondent i
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Respondent.
JUDGMENT
P Padman Surasena J
The Divisional Secretary, of Kantale, who has been named in this petition
I 08-23 evicting the Appellant and his dependants if any forthwith from the
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land.
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Being aggrieved by the said order made by the learned Magistrate, the
The Provincial High Court after hearing parties, by its judgment dated
It is against that judgment that the Appellant has filed this appeal in this
Court.
Learned Deputy Solicitor General who appeared for the Respondent at the
maintainability of this appeal. It was his submission that this appeal has
not been filed within the time limit set by law for such filing.
Rule 2 of the Court of Appeal (Procedure for Appeals from High Courts)
Rule 2
1published in the Gazette Extraordinary of the Democratic Socialist Republic of Sri Lanka No.
549/6 dated 1989-03-13.
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2. (1) Any person who shall be dissatisfied with any judgment or final order
(a) by lodging within fourteen days from the time of such judgment or
order being passed or made with such High Court, a petition of appeal
"
It is to be noted that Article 154 P (3) (b) of the Constitution is the Article
which empowers the Provincial High Court to exercise subject to any law,
Thus, the time limit set by law for the instant appeal, which is an Appeal
Rule 3 (1) of the said Rules has provided to include, the day on which the
Saturdays, Sundays and Public holidays, when computing the time within
High Court Judge has delivered the impugned Judgment. The Appellant has
appeal and the date stamp placed by the High Court on it.
Thus, it is clear that this appeal has not been filed within 14 days, which is
This Court has to observe with regret that it was on 2017-06-23 that this
Court was able to take up the argument in this case only to be told that the
appeal filed 'against the judgment of the Provincial High' Court pronounced
on 2002-05-20, was out of time. It appears that this case had been
pending before this Court since the pronouncement of the said judgment
by the Provincial High Court because the Provincial High Court despite this
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appeal being filed after the lapse of appealable period had proceeded to
accept the said appeal. It is clear that no useful purpose would be served
party, the lawful enjoyment of the rights, even after their vindication
When the law has provided for a right of appeal along with a time period
within which that right is required to be exercised, that clearly means that
such right of appeal is subject to a condition. The said condition is that any
within the given time period. This means that no such right of appeal exists
after the lapse of the specified period. When such right of appeal does not
exist due to the lapse of the provided appealable period, a party is not
party wrongfully attempts to tender any such appeal, after the appealable
accepting.
forum, which should rule on the question whether the appeal is out of
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time, because it is to that forum that the petition of appeal has been
addressed.
If that argument is correct then such lower Court cannot reject an appeal
filed even in a situation where the relevant law has specifically taken away
such right of appeal. This is because of the same reason that the petition
only open a rear gate through which illegal appeals could be filed. i
Therefore, it is clear that there is absolutely no merit in such an argument.
The judges presiding in the High Courts and below must be mindful that
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allowing such illegal practices to continue would only permit abuse of Court
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process causing severe injustices to parties. In addition, it would also erode I
the confidence the public has reposed in the judicial system of the country II
as such practices would inevitably foster laws delays. This Court is of the
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view that it is now time to jettison. such fallacies, which are against the
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I For the foregoing reasons, this Court decides to uphold the preliminary
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objection raised by the learned Deputy Solicitor General and proceed to
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dismiss this appeal. The Appellant is directed to pay a state cost of Rs.
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50,000/= .
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JUDGE OF THE COURT OF APPEAL
K K Wickremasinghe J
I agree,