NAGALINGAM S.P.J.—Kandy Omnibus Go., Ltd. v. Silverline Kits Co., Ltd. 280
1955Present: Nagallngam S.P.J. and Fernando A.J.KANDY OMNIBUS CO., LTD., Petitioner, and SILVEltLINEBUS CO., LTD., el ul., Kespondents,V. <'. Hi 2—Application to vacate an order allowing conditional leave toappeal to the Privy Council in S. C. Application No. 51)6 of PJ52
I'rinj Cun mil—-Conditional leave to appeal—Grant in absence, of respondent—Itiijhtnf Citinl to vacate it subsequently—Appeals (Privy Council) Ordinance (Cap. US),Schedule, Jlule 22.
Whore mi application for conditional loavo to uppeul to the Privy Councilid allowed in tho ah.se,ice of the party respondent the Court lias power to vacateits order mibsorpionlly if the party respondent shows that he had no noticeor knowledge of tho application and that though ho exercised due diligonco inattempting to obtain information with regard to any such application, ho failedto obtain any.
Application to vacate an order allowing conditional leave, toappeal to the Privy Council.
II. V. Perera, Q.C., with E. R. S. 11. Coomarasivamy and G. I).KtunarakuUusinyhe, for the petitioner.
li. II'. Jayewurdene, Q.G., with G. T. Santarawickreme anti J~>. It. P.Goonelilleke, for the respondents.
Cur. ado. tut It.
January 3, 1955. Nagalenoam S.P.J.—
This is an application by the Kandy Omnibus Company Ltd., whichwill hereinafter bo referred to as the petitioner, to vacate the order madeby this Court on the 10th December, 1054, granting the respondentsconditional leave to appeal to Her Majesty in Council.
Tho order sought to bo taken in appeal to Her Majesty was made onthe 12th November, and on tho 15th November, 1954, tho respondentsgave notice to the petitioner of their intention to apply to this Court forconditional leave to appeal ; on the 6th December they filed their appli-cation which (-amo for hearing on the 10th of December and theapplication was allowed in the absence of the petitioner.
2J. N. il 43580-1,097 (8/S6)
4qo ttAGALINGAM S.P.-T.—Kandy Omnibus do.. Ltd. v. Silveritne Bus Co., Ltd
The gravamen of tlio complaint* of the petitioner is that ho had nonotice of the application made for conditional leave, that ho gained noknowledge of the application and that though ho exercised due diligencein attempting to obtain information with regard to any such application,ho failed to obtain any and that the order made in his absence should inthose circumstances bo sot aside and that he should be heard boforeconditional leave is granted to the respondents.
That in fact the respondents gave no notice to the petitioner of theirfiling the application for conditional leave is admitted.
The Proctor for the petitioner has filed an affidavit in which ho setsout that “ he inspected the records at the Registry up to the 6th December,3!)54, daily, in order to ascertain whether an application was filed in thoSupreme Court Registry ”. The other averments in the affidavit make itclear that the reference to the daily inspections up to the 6th of Decemberrelate to inspections alleged to have been made by him from and aftertho 30th November, 1004—tho date when he received instructions toact on behalf of the petitioner in regard to the application for conditionalleave.
The Proctor further states that on the 7th and 8th of December fie wasill and therefore could not have attended tho Registry for investigation,that tho Dth of Decomlmr was a Public Holiday and the Registry wasclosed but that when he did examine the records on tho 10th, he says, hodiscovered for the first time that the application had not only been madobut conditional leave had also been granted on that date.
Those averments undoubtedly have been made with a view to supportthe allegation in tho petition of the petitioner that the application forconditional leave was registered on the 8th of December and that thoapplication was on that very day directed to be listed on the 10th Decem-ber and that tho ignorance on the part of the Proctor and officers of thopetitioner company as regards the application made by the respondentsfor conditional leave was not due to any neglect or default on their partbut due to tho extreme swiftness with which the application was doaltwith.
Mr. Jayawardene for the respondents, however, challenges theseaverments and points that in truth and in fact the application for condi-tional leave was registered at the Registry on the 6th December and noton the 8th as allcgod by the petitioner, and that if a perusal of the entriesin the Register had been mado on the 6th, the entry relating to the filingof the application could not but have been observed.
In order to reinforce his submission, he sought permission of Courtto cross-examine the Proctor for the petitioner on his affidavit. Thiswo refused.*
X AGALINGAM S.P.J.—Kandy Omnibus Co., Ltd. v. Silverline Bus Co., Ltd. 291
I think it ia correct to state that applications of this nature are dealtwith on the affidavits filed and ordinarily no cross-examination ispermitted. The appellants, if they did want to challenge the affidavitsfiled on behalf of the petitioner, should at least have filed counter- affidavitsthemselves, before making application for cross-examination.
I may say at once that the Register maintained at the Registry wasconsulted and it revealed that in fact the application for conditionalleave had been registered on the 6tli of December and the DeputyRegistrar stated that the applications are tendered to him personallyand that when he receives the applications he directly outers them in theRegister. In view of these facts there can bo little doubt that tho state-ment of the petitioner that the application for conditional leave wasregistered on the 8th is incorrect in point of fact, but non constat thatthe affidavit of the Procter that he inspected the Register on the 6thand the implied suggestion underlying that statement that he found noentry in the records of the Registry is itself incorrect. The timo factorhas to be taken into account before one can venture to express an opinionthat the averment in the Proctor’s affidavit is untrue. The facts aroquite consistent with no entry having been made at the time tho Proctorinspected the Registers on the 6th and the entry being made on that veryday, after his inspection. That Proctor’s statement therefore could notbo characterised as being culpable, but that is not to say that tho allega-tion in the petition that the application for conditional leave wasregistered on the 8th is incorrect. If, of course, one considers tho allega-tion as being merely an inference from the facts set out in the affidavits,then no dishonesty need be imputed.
That an applicant for conditional leave is not bound to give noticeto the respondent of the day on which the application would bo madehas been laid down by this Court in the case of Pathmanathan v. ImperialBank of India *. Counsel were agreed that there is no provision eitherin the Appeals (Privy Councils) Ordinance (Cap. 85), or in the Rulesframed thereunder requiring that even notice of the filing of the applica-tion should be given to the respondent. But, however, the practicefolfowed hitherto has been as set out by me in the case of De Silva v.Hirdarmani Ltd. 2:
“ the application for leave (conditional) is not disposed of exceptingin the presence of or at least after proof that notico of tho applicationhas been given to the respondent and in practico the application itselfis never disposed of in fact within 30 days of the date on which thojudgment appealed from was delivered and there is always sufficienttime for the respondent to get ready to show cause against thoapplication after receipt of notice or the gaining qf knowledge of thofiling of the application …. ”
In the present case the application for conditional leave was in factdisposed of boforo tho expiry of thirty days front tho date when thojudgment appealed from was delivered
(19.17) .19 .V. L. It- 10.1,(1953) 55 N. L. Jt. 73.
202 NAOATJNOAM H.VJ.—Knndy Omnibus Co., Ltd. v. Silrrrlinr Jin* Co., Ltd.
J do not think Hint a party or his Proctor is export'd to search tlu«Register at the Registry ovory liour, or oven every day. That will lie anintolerable situation to place a party or Iris Proctor in. Ordinarily. Tthink at loast thirty clays from the date of judgment appealed againstshould ho permitted to lapso before the application for conditional leaveis listod for disposal. If such a course lio adopted a Proctor who maynot receive any information earlier would, by examining the Registryon tbe thirty-first day, be in a position to ascertain once for nil andfinally, whether an application has been made to Court in pursuance ofthe notice of intention to appeal.
In this case there is the affidavit sworn to by tho Proctor for thepetitioner which shows that he had as far as possible made every effortto acquaint himself of any application being made to Court, and, if, in bhocircumstances ho has sot out in his affidavit, ho had failed to gainknowlcdgo of tho application, it cannot be said that his ignorauco wasduo to any gross carelessness or culpable negligcnco on his part.
Tho question t-hon arises whether, if there has boon noithor gross careless-ness, nor culpable nogligenco on the part of the Proctor, ami noithortho petitioner company nor any of its officers had knowledge of theapplication for conditional leave made to the Court, in consequencewhoroof tho potitionor company failed to outer appoaranco wlion thoapplication for conditional leave came to be considered, this Court hastho necessary powers vested in it to vacate an order granting conditionalloavo in tho absonco of the petitioner. It is not denied l»y Mr.Jayawardono that the petitioner had the right to be heard beforoconditional loavo was granted. If so, I do not think that the powers ofthis Court aro so restricted as to prevent it from doing justice as botweontho parties and making such order as may bo necessary to reach thatobjective.
I would therefore vacate the order of this Court dated the 10thDecember, 1954, granting conditional leave to tho respondents to apfiealto Her Majesty in Council and direct that that application should lx>re-listed for argument.
Tho respondents will bo ontitlerl to the costs of this application aswoll as tho costs incurred by them in regard to tho application made bythorn on tho 10th of December.
Before I part with this record, I desire to draw attont-inn to an as]ioi-twhich has passed through my mind on a consideration of t-bo provisionsof the Appeals (Privy Council) Ordinance. It seems to mo that thelegislature did not intend to give the respondent to an appeal the rightto bo hoard at the consideration of the application for conditional leave*,but only at the stage wlion final leave is applied for,—vide Rule 22 of theRules appended to the Ordinance ; however, as there lias been a cvrsvttcurie,s of long standing to hoar the respondent to the ap[ieal on the
KandjfiOtnnfbuo Go., Ltd. v. Roberta
conaiderati on of the application for conditional leave and as Mr. Jaya-wardene has conceded that the respondent to an appeal has a right to beheard at that stage, I .do not intend to pursue the matter further,especially as I have not had the benefit of any argument on the point.
Fernando A.J.—I agree.
KANDY OMNIBUS CO.LTD ,Petitioner, and SILVERLINE BUS CO.LTD , et al , Respondent
NAGALINGAM S.P.J.—Kandy Omnibus Go., Ltd. v. Silverline Kits Co., Ltd. 280