C 264 )
MENIKHAMI GAMARALA et al. v. THE CROWN.D. C., Chilaw, 256 B.
Forest Ordinance, 1885—Amending Ordinance No. 1 of 1892, s. 9, sub-section 6—Appeal from decision qf Forest Settlement Officer—Procedure as tolodging appeal and time for supplying stamp for judgment in appeal—Civil Procedure Code, s. 756—Ordinance No. 3 of 1890.
Per Burnside, C.J., and Withers, J. (dissentients Lawrie, J.).—Allthat is required of a party appellant under section 9 of the OrdinanceNo. 1 of 1892 is to lodge with the forest officer, within three weeks ofthe order appealed from, a duly stamped petition of appeal and affidavitto enable him to have Ids appeal dealt with by the Supreme Court.
It is not necessary for the appellant to deliver, as provided in the. Ordinance No. 3 of 1890, in the case of appeals from District Courts andCourts of Requests, a proper stamp for the decree or order of theSupreme Court.
But counsel for appellant should, before argument, undertake tosupply the proper stamps for the judgment in appeal.
rpHIS was an appeal from a decision of a Forest Settlement-A Officer in favour of the Crown.
The claimant appealed, without supplying a proper stamp forthe decree of the Supreme Court.
20th January, 1893. Ramandthati, S.-O., for the Crown,submitted that the appeal was inadmissible without such stamp.
Seneviratana, for the appellant, was heard contra
Cur. adv. vult.
( 265 )
24th January, 1893. Burnsidb, C.J.—I8#s.
The decision of points growing ont of the Forests Settlements _
Ordinances is not usually an easy task. The Ordinances them* OJ.selves are novel in principle and abound in paradoxes, bnt thequestion for our decision in the present case is, in my opinion, freefrom doubt. It arises upon section 9 of the Forest Ordinance,
No. 1 of 1892, which, after giving a right of appeal to this Courtto any person dissatisfied with a decision of a forest officer bylodging a petition of appeal with an affidavit, of the nature of theright affected with that officer, goes on by sub-section (c) toenact:—“ Stamp .duty shall be charged upon every such petition“ of appeal and upon every such affidavit, at the rates specified in“part II. of the schedule B to ‘ The Stamp Ordinance, 1890,’ for“ similar instruments in the District Courts, and upon subsequent“ proceedings at the rates specified in the said schedule for appeals“ from the District Courts; and every such appeal shall be dealt“ with and disposed of in the same manner and subject to the“ same rules as appeals from District Courts are dealt with and“ disposed of.” It was contended by the Solicitor-General thatthe provision to the Stamp Act which relates to the time whenthe stamps necessary for judgments in appeal shall be supplied,governs appeals in these cases. The provision is as follows :—
“Provided also, that in appeals to the Supreme Court the“ appellant Bhall deliver to the secretary of the District Court or“ clerk of the Court of Requests, together with his petition of“ appeal, the proper stamp for the decree or order of the Supreme“ Court and certificate in appeal which may be required for such“ appeal.”
Whilst I am of opinion that a judgment in appeal is a “ subse-quent proceeding ” within the sub-section of the Forest Ordinance,
I am clearly of opinion that the provision just quoted does notapply to it. In the first place, by the Forest Ordinance it is clearthat it is the stamp “ rates ” only which are made to apply to“subsequent proceedings,” and the provision to the Stamp Ordi-nance does not refer in any way to the “rates” to be paid, but itrefers especially and only to the “ time when ” such rates are tobe paid. Then, again, to hold that the provision applied toproceedings like the judgment in this case would be in effectto make the Legislature give a right of appeal in one breath andtake it away in the next, for it would be impossible for an intend-ing appellant to comply with the requirements of the provision.
Which would be the District Court or the Court of Requests, tothe secretary of which the stamps are to be delivered ? It was
Vol. I.2 m
( 266 )
1898.suggested that the forest officer, or the registrar of this Cour^
January 24. would be officers corresponding to the secretary of the lowerLavras, J. Court. But which would really be so ? The very alternative issufficient to dispose of that suggestion, which would in itself besimply legislating, and not construe legislation as we are calledto do.
I cannot appreciate the reasoning that because this Court hasalready held with respect to the provision, that it creates a condi-tion precedent to the right of appeal in those cases to which theLegislature has in unmistakable terms applied it, therefore wemust also apply it to other cases in which the Legislature has beensilent with regard to it, and with the effect of defeating a right ofappeal which has been also unmistakably conceded.
As I have said; I think the judgment would be a “ subsequent“ proceeding,” and it should therefore be stamped in the words ofthe Ordinance “ at the rates specified in the schedule for appeals“ from the District Court,” but as the Ordinance has made nospecial provision as to the time when such stamp shall take placethe general law must apply, and the judgment would strictly andproperly be stamped at the time when other judgments are reallystamped. I fully recognize, however, the inconvenience, if nogreater evil, of leaving a judgment to be stamped after it shall havebeen delivered, without any provision for securing the supply ofthe proper stamp, and although the Legislature has been silenton that matter, it has by sub-section (5) of the same section of theOrdinance given this Court full power to obviate the inconveni-ence by empowering the Court, after the appeal has been forwardedto our Court, “ to make such order as the justice of the case may“ require.” I am prepared, therefore, to permit this case to be heardin appeal, upon the undertaking of counsel that the proper stampsfor the judgment in appeal shall be supplied; and in all futurecases the order will be that no appeal will be received until asimilar undertaking is given by counsel.
The 9th section (sub-section 6) of the Ordinance No. 1 of 1892provides that the rates of stamp duties specified in the schedulefor appeals from the District Courts shall be charged on pro-ceedings subsequent to the petition of appeal for appeals froma decision or order of a Forest Settlement Officer, and that suchappeals shall be dealt with and disposed of in the same manner,and subject to the same rules as appeals from District Courts aredealt with and disposed of.
( 267 )
The judgment of this Court in appeal is of necessity a pro- 1893.ceeding subsequent to the petition of appeal. The section I haves*-
quoted, in my opinion, requires that that judgment shall bear the Withmb, J.same stamp as it -would bear if it were a judgment in appeal froma decision of a District Court. The appellants have not up tothis moment supplied any stamps for the judgment in appeal.
In my opinion, we must deal with the omission as if this casewere an appeal from a District Court. If an appellant from aDistrict Court judgment omitted to furnish stamps for the judg-ment of this Court, we would reject the appeal. I am of opinionthat no other course is now open to us. I would reject the appeal.
■ To my mind there is little doubt that all that is required of aparty appellant under the 9th section of Ordinance No. 1 of 1892is to lodge with the forest officer within three weeks of theorder appealed from, a duly stamped petition of appeal andaffidavit to entitle him to have his appeal dealt with by thisCourt aB appeals from the District Courts are dealt with.
The provisions of the 756th section of the Civil ProcedureCode cannot be worked into section 9 of Ordinance No. 1 of 1892,for this relates only to what shall occur after the transmission ofthe proceedings to this Court.
Then, as to the provision of the Stamp Ordinance which antici-pates the usual time for stamping instruments by requiring theproper stamp for the judgment of this Court to be delivered withthe petition of appeal to the secretary of the District Court, Icannot find the language which incorporates it into the 9thsection of Ordinance No. 1 of 1892, which, in regard to pro-ceedings like this judgment, subsequent to the receipt of the caseby our Registrar, declares only the rates of duty to be imposed’ on them, and no more.
It is left to us, as pointed out by my Lord, to make such orderin matters incidental to proceedings in appeal under this Ordi-nance as the justice of the case may require, and I venture tothink the order proposed a just application of a very ordinaryrequirement.
MENIKHAMI GAMARALA et al. v. THE CROWN