Appeal Notwithstanding lapse of time Medical grounds

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. Kandmediri Hena Gamaralalage Ranathunga Bandara. Hitigegama, Hatton Plaintiff CP/HCCA/Kandy /02/2023 NLT D.C. of Kandy, Case No. 618 L Vs 1. P.L. Ariyarathne, Hitigegama, Hatton. 2. P.L. Senevirathne, Parathlawa, Pitawala. Defendants AND NOW BETWEEN Kandmediri Hena Gamaralalage Ranathunga Bandara. Hitigegama, Hatton Plaintiff - Appellant Page 1 CP/HCCA/Kandy /02/2023 NLT Vs. 1. P.L. Ariyarathne, Hitigegama, Hatton. 2. P.L. Senevirathne, Parathlawa, Pitawala. Defendants –Respondents Before: Hon. K.M.S. Dissanayake - HCJ [HCCA] Hon. Dr. Sumudu Premachandra - HCJ [HCCA] Counsel: Dananjaya Bogahawatte instructed by Manori Ratnasekera for the Plaintiff - Appellant Written Submissions 26/03/2024 by the Appellant tendered on Supported on: 02/02/2024 Decided on: 26/04/2024 Dr. Sumudu Premachandra, HCJ [Civil Appeal] 1] This is an application for admit the appeal notwithstanding lapse of time. On 02nd February 2024, when the matter to be argued for show cause why the Page 2 CP/HCCA/Kandy /02/2023 NLT appeal out of time should be admitted, the learned Counsel for the Plaintiff Appellant urged to show cause by way of written submission and upon the said application, the Appellant was directed to show cause why appeal should not be rejected by way of written submission. By written submission dated 26/03/2024, the reasons were shown. I now consider the merits on this. 2] The section 765 of the Civil Procedure Code provides instances where an appeal be admitted notwithstanding lapse of time. It says as follows; “It shall be competent to the Court of Appeal to admit and entertain a petition of appeal from a decree of any original court, although the provisions of sections 754 and 755 have not been observed: Provided that the Court of Appeal is satisfied that the petitioner was prevented by causes not within his control from complying with those provisions; and Provided also that it appears to the Court of Appeal that the petitioner has a good ground of appeal, and that nothing has occurred since the date when the decree or order which is appealed from was passed to render it inequitable to the judgment-creditor that the decree or order appealed from should be disturbed” [Emphasis is added] Page 3 CP/HCCA/Kandy /02/2023 NLT 3] Thus, it is obvious two main factors to be considered in an application of this nature. Those are; a) Was the Petitioner prevented to file the petition of appeal by reasons not within his control? b) Has the Petitioner shown a good ground of appeal? 4] In Wickremasinghe v De Silva (1978-79) 2 SLR 65, Soza J remarked and warned that parties should not wait to lodge an appeal till the last minute as; “Parties should not wait till the last moment and then complain when they are caught out of time” 5] In Silva v. Sankaran and others [2002] 2 SLR 65,the Appellant lodged the petition of appeal under section 754 of the Civil Procedure Code on Monday, 61st day as the 60th day fell on Sunday, a public holiday. It was held in this case: (1) A strict compliance is imperative and non-compliance is fatal to the appeal. (2) The words „within 60 days‟ in section 755(3) restrict the right of the appellant to file the petition of appeal beyond the time frame of 60 days given. (3) The provisions of s.8 (1) Interpretation Ordinance do not apply Page 4 CP/HCCA/Kandy /02/2023 NLT 6] In the case in hand, the Appellant admitted that the notice of appeal and petition of appeal were not filed within the stipulated period time. The Appellant submits that the judgment was in his favour thus he was under the impression that the full reliefs as prayed for including the ejectment of the Defendant Respondents has also been granted by the lower court. However, when, he obtained a certified copy of the judgment dated 24/08/2023 (X1), the Appellant realized that since the identity of corpus was not proved, no relief for ejectment was granted. The learned trial judge has only held that he is a co owner to the land in question granted reliefs except ejectment. 7] The Appellant said that he was prevent by filing the appeal as he suffered from illness as he was down with fracture in his left ankle. To prove, he has submitted X2, an Ayurvedic Medical Certificate. The certificate was issued on 11/11/2023 and it says medical leave was granted from 06/09/2023 for 37 days. 8] In ANEEZA UMMA v. LEELAWATHIE AND ANOTHER, [1999] 3 SLR 253, WEERASURIYA, J. considered an issue that the petition of appeal was not filed by the Petitioner within 60 days from the date of judgment. The Petitioner sought that appeal be admitted on the medical grounds. The court held that the position of the Plaintiff-Appellant, that due to her illness she was prevented from meeting her lawyer cannot be accepted as the medical certificate does not speak of any inability to attend Court on a particular day. Further the court Page 5 CP/HCCA/Kandy /02/2023 NLT noted that there was no averment that she was in a serious condition of health and the medical certificate had also been issued after expiry of the alleged period of bed rest recommended by the Doctor. Thus, medical certificate was refused to accept by the court of appeal. 9] I now consider the medical certificate tendered by the Appellant can be treated as valid reason to prove that the Appellant was prevented to file the petition of appeal by reasons not within his control. The medical certificate was issued on 11/11/2023. The reason given in the medical certificate was “වලලුකර අවහන්දි වීම ”. It means dislocation of the ankle, not fracture of the ankle. The Appellant said there was a fracture which prevented him giving instruction to the counsel. But the medical certificate does not reflex this contention. If there was a fracture it should be noted as “වළලුකර භග්න වීම” instead of “වලලුකර අවහන්දි වීම”. The date of the fracture was not mentioned precisely in X2 and it had only given 37 days leave from 06/09/2023 onwards. The medical certificate does not indicate that the Appellant was unable to be present in court or whether the patient can walk or not. It is dubious that why the Appellant has not gone treatment on a Government Ayurvedic Hospital or Government Western Medicine Hospital to prove the fact that he was treated for a fracture of ankle. The Appellant filed X2, which was issued by a private ayurvedic medical officer and it does not indicate when the fracture was occurred , that the Appellant was unable to give instructions or attend to court. At least no Grama Niladari certificate was produced coupled with X2 to prove that the Appellant was ill. I Page 6 CP/HCCA/Kandy /02/2023 NLT hold that X2 does not pass the test enunciated in ANEEZA UMMA v. LEELAWATHIE AND ANOTHER(Supra). Thereby, I hold that the Appellant had failed to prove that he was prevented to file the petition of appeal by reasons not within his control. Thus, instant application should be refused. 10] The next question is that whether the Appellant has a good ground of appeal. The prayer “අ” clearly shows that this is an action for rei vindicatio by a co-owner. It is trite law a co owner can bring an action for rei vindicatio to eject a rank trespasser for all other owners. However, in such action, it is sine qua non to prove that; a) The title to the land (Pathirana v. Jayasundara 58 NLR 169 at 171 required “strict proof of the Plaintiff‟s title and followed by Banda v. Soyza [1998] 1 SLR 255) b) Identification of the corpus (The identity of the land is fundamental for the purpose of attributing ownership, and for ordering ejectment , held in Lathee! v. Mansoor and another [2010] 2 SL.R. 333 at 349)]. In a vindicatory action it is necessary to establish the identity of the corpus in a clear and unambiguous manner and the action must fail upon the failure to do so, held in Fernando v. Somasiri (2012 B.L.R. 121).” 11] The learned trial judge has considered the case of Chandralatha v Keeralage Parakrama [2018] SC Appeal 188/2011 dated 18/07/2018, held that the identity of corpus has not been proved in line with Page 7 CP/HCCA/Kandy /02/2023 NLT the section 41 of the Civil Procedure Code. Thus, we see the Petitioner has not shown good grounds of appeal to admit the appeal not withstanding lapse of time. 12] In view of above circumstances, we reject the application for appeal be admitted not withstanding lapse of time without 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 8 CP/HCCA/Kandy /02/2023 NLT