Revision: how Justice is served in the face of manifest Injustice | Daily News

Revision: how Justice is served in the face of manifest Injustice

Obtaining a ruling in favour of a party in a revision application to a higher court seems to be as hard as the camel making it through the eye of the needle. However, there are exceptional circumstances when even if there were alternative remedies for the appellant, the application for revision is granted.

In Manoharan v. Payoe And Others - SLR - 270, Vol 2 of 2007,the plaintiff was granted an interim injunction in the District Court preventing the defendant from carrying on a metal quarrying operation on the former’s land. The defendant has been carrying out this operation for quite some time. Moreover, the land was slotted to be acquired by the State.

The District Judge granted the interim injunction the plaintiff prayed for against the metal quarrying operation of the defendant. Aggrieved by this, the defendant made an application for revision of this order in the Court of Appeal.

The Court of Appeal observed in judgement that the defendant has not made use of alternate remedies available to him, such as leave to appeal — but yet, allowed that under exceptional circumstances the defendant could avail himself of the benefit of revision despite that omission. This is how that issue was addressed in judgement:

“It is to be observed that the defendant having failed to avail himself of the alternative remedy to appeal in terms of Section 754(2) of the Civil Procedure Code as amended by Act No. 78 of 1988, has invoked the revisionary jurisdiction of this Court. When an applicant has failed to avail himself of the alternative remedy available, it is settled law that revisionary powers would be invoked only if the existence of exceptional circumstances are urged necessitating the indulgence of this Court to exercise its powers of revision. In this regard necessity would arise to consider the decision of the Supreme Court in the case of Rustom v Happangama & CO.(1) Per Ismail, J. at p 356: “The powers of revision vested in the Supreme Court is discretionary as is quite apparent when one considers the working of Section 753. Numerous authorities have indicated that this power will only be exercised when there is no other remedy available to a party and such remedy has not been availed of by such authority. It is only in very rare instances where exceptional circumstances are present that the Courts would exercise powers of revision in cases where an alternative remedy has been availed to the applicant.”

The question in the case under review was whether such exceptional circumstances were present that warranted the reversal of the interim injunction given by the DC.

If the probability is that the plaintiff will win the case in Court that he is litigating, the plaintiff would have a justification for an injunction in his favour. The Court of Appeal explained this position in judgement in the following manner.

“Further in the case of Gulam Hussain v Cohen (5) per S.N. Silva J. (P.CA), (as then he was) at 370: The matters to be considered in granting an interim injunction have been crystallized in several judgements of this Court and or Supreme Court. In the case of Bandaranaike v State Film Corporation Soza J., summarized these matters as follows:

"In Sri Lanka we start off with a prima facie case that is, the applicant for an interim injunction must show that there is a serious matter in relation to his legal rights, to be tried at the hearing and that he has a good chance of winning. It is not necessary that the plaintiff should be certain to win. It is sufficient if the probabilities are he will win."

The trend of authority amply indicates that when revisionary powers of the Court of Appeal are invoked, same will be exercised only if exceptional circumstances are urged which necessitate the indulgence of the Court to exercise its revisionary powers. This principle was further strengthened by the decision in Caderamanpulle v Ceylon Paper Sacks Ltd. In the above case this Court held as follows:

“The existence of exceptional circumstance is a precondition for the exercise of the powers of revision.” Per Nanayakkara, J.

Exceptional circumstances in the case under review in this article were that the district judge had failed to consider that the plaintiff had not established a prima facie case and had grossly erred in granting the interim injunction against the operation of the defendant’s metal quarry.

In a separate revision application that came up before the Court of Appeal (Ranasinghe & Others vs L. B. Finance Ltd., 2005) a leave to appeal application was made by the defendant in the court of appeal against a District Court order, and when that was refused, the appellant went all the way to the Supreme Court by way a special leave to appeal, but was refused there too.

However, after much delay, a revision application was filed against the ex-parte DC order in the Court of Appeal, irrespective of the fact that the leave to Appeal application had failed.

Wimalachandra J held in the Appeal Court decision on this matter, that:

The reason for the dismissal of the leave to the appeal application is the non-appearance of the Defendants and their Counsel on the date of Inquiry. The Supreme Court upheld the Order of dismissal of the Court of Appeal. When the Defendants appealed to the Supreme Court from the Order of the Court of Appeal, the Defendants did not seek to question the impugned order of the District Judge. The Court of Appeal as well as the Supreme Court did not affirm the impugned order, both Courts did not go into the merits of the application.

The impugned order is based upon a misapprehension that the Court has no jurisdiction to inquire into an application to set aside an ex-parte decree on the basis of non-service of summons, and is manifestly erroneous.

The Court of Appeal held that the defendant’s application to set aside an ex-parte order made against him in the District Court because the DC held it had no jurisdiction to go into the matter because the defendant has not been served summons, was manifestly erroneous. The Appeal Court held that even though the Court of Appeal and the Supreme Court had held against the appellant’s application to set aside the ex parte DC order, that had been done without going into the merits of the case. Both courts had made the order based on the fact that leave to appeal could not be granted as the appellant was absent and had not exercised due diligence in proffering his application.

The Court of Appeal allowed the revision application in this case, even though two Courts had previously rejected the leave to Appeal application. Court held in judgement:

“In the circumstances, I am of the view that a miscarriage of justice has occurred by the said Order, due to the violation of the fundamental rule of procedure and the powers of Revision are wide enough to embrace a case of this nature, it is my further view that non- interference by this Court will cause a denial of justice and irremediable harm to the Defendant.

If the impugned order is manifestly erroneous and is likely to cause great injustice, Court should not reject the application on the ground of delay alone.”

The appellant’s Application in Revision to set aside the ex parte order against him, the defendant in the D.C, was granted, as with the previous case, due to the exceptional circumstances that warranted such a revision, as Court determined.