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Present: Bertram C.J. and De Sampayo J.
KULANTATVELPILLAI v. MAEIKAE90—D. C. (Inty.) Puttalam, 3,023.
Dies non—Sunday—Judge accepting plainton a Sundayinhishouse—
“ Court ”—Ordinance No. 4 of 1886,
The question whether a Judge is acting judicially is not to bedetermined bythebuilding or place where heBits,butby the
capacity in which he purports to act.
A Judgemayacceptaplaint in acivil caseinchambers at his
residence.Thisactisnot renderedinvalidbybeing performed
on a Sunday.
Bbbtbah C.J.—** The effect of thedeclaration ofadayas a
public holidayanddies non by Ordinance No.4 of1886is two-
fold. In the first place, it excuses judicial officers and theirsubordinate ministerial officers from the necessity of attendingCourt, or of performing any judicial or ministerial acts, on that day;in the, second place,itprotects anymemberofthe public from
being forced to attend Court, or to attend any judicial ‘ proceedingheld elsewhere than in Court, on that day. It does not affect anyjudicial actorproceedingwhich maybe validlydone or taken in
the absence of a party, -and which-,consequently, doesnotinvolve
his personal attendance. Further, it does not preclude a judicialofficer, or any of his ministerial subordinates, from waiving hisprivileges if he so decides, and fromdoing any actortaking part
in any judicial proceeding on a day declared to be a holiday. Thereis nothing either in the Ordinance or in the principles laid downby Yoet which declares null and void any judicial act which ajudicial officer voluntarily elects to do, and which does not involvethe compulsory attendance before him of any party affected.’*
facts appear from the judgment.
A.-St. V. Jayawardene (with him Bawa, K.C.), for appellant.
Drieberg, for the respondent.
Cur. adv. vult.
October 31, 1918. Bertram C.J.—
In this case two objections are raised to the validity of the pro-ceedings which are said to invalidate all orders made in the casesubsequent to the matters complained of. The first objection isthat the District Judge accepted the plaint and issued summons inthe action upon a Sunday. The second objection is that he tookthese proceedings, not in Court, but in his own residence.
The facts are that the District Judge being .in Puttalam on. acertain Sunday, the plaint was tendered to him for acceptance inchambers at his own residence. Application was also made to him,firstly, to issue summons; and secondly* to grant an interim injunc-tion. We need not consider the question of the granting of theinterim injunction, because we are not now dealing With any
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proceedings based upon that injunction. Nor do I think it isnecessary to say very much about the question pf the issue ofsummons. It is not clear that the District Judge did order theissufe of summons on this Sunday, but even if he did, it is purely aministerial act. But it is hardly contested that ministerial actsmight be performed in connection with judicial proceedings upona Sunday.
The important question to be considered is, whether it wascompetent for the District Judge to accept a plaint on a Sunday.The acceptance of a plaint may for this purpose be considered ajudicial act, inasmuch as it involves the consideration of variousprovisions of the Civil Procedure Code by the District Judge, and thegiving of a decision may be the subject of subsequent judicial review.
It is urged by the appellant that under no circumstances can aDistrict Judge accept a plaint on a Sunday, or at least that he canonly do so if strong actual necessity is affirmatively proved. Thequestion is purely a question of interpretation of statutes, andthere are only two statutory provisions which may be consideredto affect the matter. The first is section 865 of the Civil ProcedureCode, and the second is section 4 of the Holidays Ordinance of 1886.
It is quite clear that the present proceeding is not within section365 of the Civil Procedure Code. That relates—as I understand theCode—purely to the services of processes in civil cases which areto be carried out by the Fiscal. The acceptance of a plaint is notone of such processes* The second provision, which is the onewhich it is really important to interpret, is section 4 of the HolidaysOrdinance of 1886. That Ordinance was passed with a view todeclaring a number of days to be public and bank holidays respec-tively. A number of days are scheduled for this purpose. Thosedays are partly of a purely secular character. No distinction forthe purpose of the Ordinance is made between the various religiousof the various communities inhabiting the Island. Section 4declares that the severed days mentioned in Schedule A, and thereindescribed as public holidays, shall, in addition to Sundays, be diesnon, and shall be kept as holidays in the Colony. The question is,What is the effect of the enactment that these days shall be dies non ?
The expression dies non may be interpreted in two ways. Itmay be considered simply as having reference to the scope of theOrdinance. The object of -the Ordinance is to bring about anobservance of certain holidays in public offices and in banks. TheOrdinance should be interpreted with reference to the two objects,which are more fully developed aftewards in the Ordinance,namely, as regards public holidays, the closing of public offices, andas regards bank holidays, the closing of banks and the suspensionof the presentation and payment of bills of exchange and promissorynotes. By saying that a public holiday should be a dies nonf itmay simply be the intention of the' Ordinance to declare that such
a day shall not count as a working day. in public offices. It seemsto me that that would be a perfectly legitimate way of interpretingtile Ordinance.
Ah alternative interpretation is, however, suggested, namely,that the expression dies non is merely a concise way of saying die,8non juridicus. That suggestion has the authority of a late eminentJudge of this Court, Wendt J., who expressed that view. What isthe effect of declaring a day to be dies non juridicus ? We mustconsider this question from the point of view of the common law ofthe. Colony, namely, the Boman-Dutoh law. That law is discussedand expounded in Voet 8, 12, 2. Yoet there explains that from thepoint of view of the jurist, holidays are “ dies ab actibus judicialibuevacuiThey are divided into two classes: divine and human, or,as we may perhaps more appropriately express it, holidays of divineinstitution and holidays of hyman institution. “ Divina dicunturqua ob cultum divinum sunt constitute, et altissimae Maiestate
dicite ”" Humana ferics discwntur, qua propter hominum
utititatem constitute.” The conditions' governing these two classesof holidays would appear not to be identical. It is necessary,therefore, in the first place, to ask whether, in declaring Sundays ,to be public holidays and dies non under this Ordinance, the legis-lator intended them to be considered as ferics divines or feriahumana. I am clearly of opinion that, for the purpose of theOrdinance, Sundays must be considered as belonging to the lattercategory. Schedule A, as I say, consists of days partly of areligious and partly of a purely secular character. It aeems to methat by grouping these two classes, of days together, and by rankingSunday with them on exactly the same footing, the Ordinanceexpressly disclaims any intention of attributing any special sanctityto Sunday as a religious day. That being the case, Sunday andthe other days mentioned in Schedule A must be all alike consideredas holidays of human institution, created by the act of the legis-lature, propter hominum utititatem. With regard to this class ofholiday, the principle governing them, as expounded by Yoet, isclear enough. It is that on ferics humance no one shall be compelledto take part in litigation against his will. Feriis autom humanislicet nemo invitus titigare cagotur (2, 12, 6). Yoet does uot declarethat any judicial act done upon a holiday of human institution isipso facto void. What he says is that any judicial act by which it issought to compel any one to take part in litigation on such a holidayagainst his will is void, and that, I think, is the significance whichwe ought to give to the expression dies non in Ordinance' No. 4 of1S86, if it is to be interpreted on this basis.
If paragraph 6 of, title 12 is carefully considered, it will -be clearthat this is the principle which Yoet intends to enunciate. A littlefurther down the paragraph, these words appear: Nulla vero sunt,qua die feii&to contra leges, invito adversayio, gesta, decreta, indicate
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sunt, nisi ratihabitio postmodum fuisset subsecuta; that is to say,that these things are “ void which on a holiday are done, decreed,or adjudged contrary to the intention of the law against the will ofthe opposing party in the absence of subsequent ratification.” Alittle further down we have a further expression: immo ipso lurenulla sint feriato die in absentem et ignarum decreta, t.e., ■* decreepassed on a holiday against an absent party without notice ipsojure void.” Both these expressions axe, in my opinion, to belimited to cases in which it is sought to compel a person to takepart in litigation on a holiday against his will.
The effect, therefore, in my opinion, of the declaration of a dayas a public holiday and dies non by Ordinance No. 4 of 1886 istwo-fold. In the first place, it excuses judicial officers and theirsubordinate ministerial officers from the necessity of attendingCourt, or of performing any judicial or ministerial acts, on thatday; in the second place, it protects any member of the publicfrom being forced to attend Court, or to attend any judicial pro-ceeding held elsewhere than in Court, on that day. It does not, inmy opinion, affect any judicial act or proceeding which may bevalidly done or taken in the absence of a party, and which, conse-quently, does not involve his personal attendance. Further, itdoes not preclude a judicial officer, or any of his ministerial sub-ordinates from waiving his privileges if he so decides, and from doingany act or taking part in any judicial proceeding on a day declaredto be a holiday. There is nothing either in the Ordinance or in theprinciples laid down by Voet which declares null and void anyjudicial act which a judicial officer voluntarily elects to dc, andwhich does not involve the compulsory attendance before him of'any party affected.
In this case, then, all that we have is the fact that the DistrictJudge accepted a plaint, and possibly issued a summons, on aSunday. This act on his part does not seem to me to be renderedvoid either by statute or by the common law.
There is a further point which has been taken in the case, thoughno issue was framed upon it. It was, however, pleaded, and theDistrict Judge gave his view on the question. It is contended thatit is not competent for a District Judge to accept a plaint at any-ether place than the Court premises, and certain authorities havebeen cited to us on that point. The principal case referred to isthe case of Mohidin v. Nalle Tamby.1 The actual point decided inthat case was'that a judgment-debtor, who had been arrested undera civil warrant, had not been validly discharged, and the real reasonfor the decision was that the order of the District'Judge purportingto discharge him was not made when the debtor was before theCourt, but was made in his absence. That, I think, is clear fromthe judgments of both Withers J. and Bonser C.J. Bonser C.J.
111896) 1 N. L. S. 377.
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said that the District Judge not having* the debtor before Hina hadno jurisdiction to make either an order, of committal or discharge.It is perfectly true that Withers J. and Bonser C.J. obiter gaveexpression to the opinion that under the section there under con-sideration, which required that the debtor should be brought before" the Court/' the debtor should be brought before the Judgesitting actually in Court. Withers J. asks: “ What is meant by theCourt? It surely means the place where the Judge is actingjudicially, and is empowered to act judicially/’ He referred to thedefinition of “ Court ” as given in the Courts Ordinance. ” Court ”is defined in the Courts Ordinance as being “ a Judge empoweredby law to act judicially alone, or a body of Judges empowered bylaw to act judicially as a body, when such Judge or body of Judgesis acting judicially.*' That definition seemed to Withers J. andBonser C.J. to imply that a Judge is only acting judicially when heis sitting in Court. Personally, I do not so read the words in thatsense. The definition does not say “ in any place in which suchJudge or body of Judges is empowered to act judicially,” butwhen, i.e., on any occasion on which such Judge or body of Judgesis acting judicially. The question whether a Judge is -actingjudicially—as I understand the matter—is not to be determinedby the building or place in which he sits, but by the capacity inwhich he purports to act.
The dicta in that case were referred to in a subsequent case, namely,Suppramaniam Chetty v. Gurera.1 But they were referred to, notas being adopted, but simply that two cases might be distinguished.Lawrie J. in the previous case had expressed the opinion contraryto that of the other Judges. He did not now retract that opinion.All that he said was that in a previous case the opinion had beenexpressed that a judge could not discharge a debtor except inCourt, but that in this case the Judge had not discharged thedebtor at all.
There is not, therefore, any binding authority that a Court canonly act judicially in a Court-house. I do not understand such aproposition to be in accordance with existing practice-, and I amtherefore of opinion that the plaint in this case was validly acceptedby the Judge in chambers at his residence in the sense explainedby Lawrie J. in his judgment in Mohidin v. Nalle Tamby.2
For the reasons I have explained, I am therefore of opinion thatthe appeal should be dismissed, with costs.
De Sampayo J.—
I am of the same opinion, more especially with regard to theinterpretation of section 4 of the Holidays Ordinance.
1 (1898) 3 N. L. R. 193.
1 (1896) 1 N. L. R. 377.
KULANTAIVELPILLAI v. MARIKAR