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Present: Bertram O. J. and Porter J.
HAYLEY AND KENNY v. ZAINUDEEN.
3tl8—D: 0. Colombo, 3,121.
Appeal to Privy Council—Conditional leave—Notice to respondent withinfourteen days of judgment—Supreme Court vacation—Notice givenwithout aid of Court.
Where appellant moved for conditional leave to appeal to thePrivy Council, respondent objected that he had not received noticeof the application within fourteen days of the judgment. Theappellant contended that he was protected by section 8 of theSupreme Court Vacation Ordinance, 1905, inasmuch as* this noticewas an act of Court.
Held, that as the notice given by appellant was given by adocument addressed to respondent without the aid of Court, thenotice was not an act of Court.
/T'HIS was an application for conditional leave to the PrivyCouncil.
E, W. Jay war dene, for the defendant, respondent.—The respond-ent did not receive notice of the application within the specifiedtime—within fourteen days of the judgment. The applicantcannot now obtain leave to appeal to the Privy Council: *
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Hayley andKenny vZainudeen
The applicant may still apply for an order that notice maybe served through Court under clause 5 of the Privy CouncilOrder.
January 19,1923. Bertram C.J.—
This is an application for conditional leave to appeal to the PrivyCouncil. Mr. E. W. Jayewardene, appearing for the respondent,has taken an objection, the objection being that he did not receivenotice of this application within fourteen days of the judgment.Mr. Garvin, who appears for the applicant, contends, in the firstplace, that he is protected by section 8 of the Supreme CourtVacation Ordinance of 1905, inasmuch as this notice was—so hecontends—an act of the Supreme Court within the meaning of thatsection- I do not think that this is a good contention. The noticewhich was given was given simply by a document addressed to theother side without the aid of the Court, and that method of servingthe notice is expressly provided for by clause 5 of the AppellateProcedure, Privy Council Order, 1921, which will be found reportedin the Ceylon Law Recorder, vol. III., on page 64. A notice so servedis, in my opinion, not an act in the Court. It is not necessary toconsider the application of section 7 of the Interpretation Ordinance,No. 21 of 1901. That clearly does not help Mr. Garvin, and for thesame reason. It appears, therefore, that this application is irregular.Mr. Garvin, however, maintains that it is still oped to him, eventhough his original notice may be defective, to exercise the optiongiven to him, under clause 5 "of the Order referred to, to apply to asingle Judge for an order that the notice may be served through theCourt, and asks leave to withdraw his present application. I thinkthat that application may be granted, subject to his paying the costsof the other side, and without prejudice to the rights of either partyin the matter.
Porter J.—I agree.'
JET. E. Oarvin, for the plaintiff, applicant.—Where time notexceeding one month is appointed or allowed for the doing of anyact or the taking of any proceeding in the Supreme Court, no dayincluded in a Supreme Court vacation is to be reokoned in thecomputation of such time, unless the Court otherwise directs. TheChristmas vacation which lasted for three weeks intervened in thiscase.
HAYLEY AND KENNY v. ZAINUDEEN