Abdul Wahid v. Mohammed Hassim.
Present : Hearne S.P J. and de Kretser J.
ABDUL WAHID et al. v. MOHAMMED HASSIM.
347-8—D. C. Colombo, 1,030.
Appeal petition—Failure to tender correct amount of stamps—Withdrawal ofpetition—Substitution of another—Fatal irregularity.
The defendants, who were separately represented by proctors, joinedin stating their grounds of appeal in one petition which was filed on theday judgment was delivered and to which stamps were affixed suffi-cient to cover one petition of appeal. On the following day the proctorsmoved to withdraw the petition of appeal and filed a fresh petition andtendered sufficient stamps to make up the full amount required for twoappeals.
Held, that the failure to tender the correct amount of stamps withthe first petition was a fatal irregularity and that there was no provisionin our law which permits an appellant to withdraw a petition of appealand substitute another. 1
1 5 Balasingham's Notes of Cases, p. 17.
HE ARNE S.P.J.—Abdul Wahid v. Mohammed Hassim.
^^PPEAL from a judgment of the District Judge of Colombo.
A. Rajapakse (with him E. B. Wikremanayake), for defendants,appellants.
N. Nadarajah (with him H. W. Thambyah), for plaintiff, respondent.
Cur. adv. vult.
October 30, 1939. Hearne S.P.J.—
After judgment was entered on October 18, 1938, in favour of theplaintiff and against the first and second defendants* the latter who wereseparately represented by proctors joined in stating their grounds ofappeal in one document which was filed on the day judgment was deliveredand to which stamps were affixed sufficient to cover one petition of appealonly. This was obnoxious to the rule in James v. Karunaratna'.
On October 19, 1938, well within the time limited for appeal, theproctors for the defendants moved to withdraw the petition of appealfiled on October 18, and filed a fresh petition of appeal. Stamps for Rs. 18were tendered and the Court was moved to accept the stamps tenderedwith the petition on October 18, in order to make up the full amountrequired for two appeals. The Court allowed the motion and the effectwas that on October 19 the petition of appeal then filed was stampedas for two appeals. In this way the appellants had, as is claimed, broughtthemselves within the rule laid down in James v. Karunaratna (supra).
It is to be noted that, while the proctors acting for the defendant gaveas their sole reason for applying to withdraw the first petition of appealand to substitute another in its place the fact that the former was impro-perly stamped, their application was in fact designed to serve anotherpurpose. The grounds of appeal in the first petition were redrafted andelaborated and an additional ground of appeal was raised. The secondpetition of appeal is a very different document from the first
The ordinary consequence of withdrawing an appeal is an order ofCourt dismissing the appeal, and I know of no provision in our lawwhich permits an appellant, in the circumstances of this case, to withdrawa petition of appeal and file .another in its place. It would appear thatin India, by reason of an enactment in the Indian Code, the provisionsfor the withdrawal of an action apply also to appeals, but there is nocorresponding provision in our Code (see Hutchinson C.J. in 11 N.L.R. 110).
According to the interpretation placed by this Court on the provisionsof the Code relating to appeals read with the Stamp Ordinance theinitiation of an appeal must be in strict compliance with the requirementsof the law, and nothing can be done later to cure non-compliance with thelaw at the time the petition of appeal is presented.
In Attorney-General v. Karunaratna et al. ', a Divisional Bench followedBandara v. Baban Appu which decided that the stamps for the certi-ficate of appeal and for the Supreme Court judgment must be suppliedalong with the petition of appeal, while in Sinnappoo v. Theivanai et al.'it was held that failure to tender the proper amount of stamps is a fatalirregularity. In this case the correct amount of stamps was tenderedafter the time limit and it was held that the defect could not be so cured.
(1935) 37 N. L. R. 154.„3 1 Matara Cases 203.
(1935) 37 N. L. R. 57.4 (1937) 39 N. L. R. 121.
Sinnan Chettiar v. Mohideen.
It seems to me that following these decisions which bind us the petitionof appeal filed on October 18 must be rejected, and that as there is noprovision whereby the petition of appeal filed on October 19 could besubstituted in its place the latter must be regarded merely as a documentwhich has improperly been accepted as a petition of appeal.
In the result the appeal must be rejected with costs.
de Kretser J.—I agree.
ABDUL WAHID et al. v. MOHAMMED HASSIM