( 408 )
Present: Bertram C.J. *nd Schneider J.
SIMON SINGHO 1?. WILLIAM APPUHAMY.
242—l). (’. Colombo, 10,490
Time—Postponement of case—V ndcrtahing to pay costs—Last day a
On an application made on behalf of the defendant the case waspostponed on condition that the costs of the day were paid by himon or before July 20; and it was further agreed that on failurethereof, judgment should be entered for the plaintiff. July 20fell on a Sunday, and the costs were tendered on the Moidayfollowing.
Held, that the defendant had failed to carry out his undertakingin terms of the order.
Per Bertram C.J.—A person is relieved from responsibility to .make a payment in the nature of a judicial act on a Sunday. An.undertaking to pay costs simpliciter does not imply payment intoCourt.
PPEAL from an order of the District Judge of Colombo. Inthis action an application was made for a postponement on
the ground that the defendant was ill. The Court then made thefollowing order:Of consent, postponed for July 21. Defendant
to pay Rs. 86 costs of to-day on or before' July 20. If not paid,judgment for plaintiff, and the defendant’s claim in reconventionto be dismissed.” July 20 happened to be a Sunday. On Mondaymorning the defendant’s counsel appeared, and stated that thecosts had been tendered that morning. The learned DistrictJudge held that the defendant had failed to comply with the order,and entered judgment for the plaintiff.
J. S. J ay e warden e, for defendant, appellant.
H. V. Perera, for plaintiff, respondent.
February 13, 1925. Bertram C.J.—
In this ca.se an application was made in the Court below for apostponement on the ground that the defendant was ill. The Courtthen made the following order: “ Of consent, postponed for July,21.Defendant to pay Rs. 86, costs of to-day, on or before July 20. If notpaid, judgment for plaintiff, and defendant's claim in reconventionto be dismissed.” As it turned out, July 20 was a Sunday,a fact which the Court probably overlooked. On the Mondaymorning the defendant's counsel appeared and tendered a medical
( 409 )
certificate. He also stated that the costs had been tendered thatmorning. The learned Judge, holding that the order was notcomplied with, 'entered judgment in terms of the consent Grdcr.
In the Court below the defendant's counsel had not realised thepoint about the 20th being a Sunday. Mr. J. S. Jayawardene hasdiscovered the point, and pressed it upon us on this appeal. Hecontends that in the circumstances, July 20 being a Sunday,the defendant was entitled to comply with the order on the followingday. Various authorities have been cited to us. But I think it isclear that neither the Indian authorities nor the English authoritiesapply to the case.
With regard to the case cited by my brother Jajew&rdene in arecent judgment (Balprasad v. Dharindhar Sakkaram 1), that case nodoubt, held that under the law in force in India where a decreebased on an agreement is passed for the payment of a certain sumwithin a given period, and where, owing to the Court vacation,payment becomes impossible during the last two days of that period,the person ordered to pay must take the consequences; he mustpay on an earlier date. The fact that the compliance with thedecree on the last two days has become impossible does not exoneratehim. That case was cited by my brother Jayewardene in the courseof the investigation of the question, where, in such cases as these,the circumstance that compliance with the decree on the last dayhas become impossible, whether through circumstances outsrde thecontrol of the party affected or otherwise, entitles that party to payon the subsequent day. My brother held that impossibility ofperformance did not extend the time within which performance mayhave been made. So also with regard to the English cases. Theyare cited in a note to paragraph 898 of the Article pn Time mHalsbury’s Laws of England, vol. 27, p. 451. It appears that underthe English Common law, Sunday has no special significance. Butthat is not the position of our own Common law. The principles ofthe Roman-Dutch law which deal with Sunday have been explainedin a previous judgment of this Court (KidaniaivelpiUai v. Marikar 2),and legislation, no doubt, based upon these principles has taken placein this Colony. See the Holidays Ordinance, No. 4 of 1886,* and theInterpretation Ordinance, No. 21 of 1901, section 7.
It is clear that under our law a person cannot be compelled to doa judicial act on a Sunday. Whether the obligation to do itproceeded from his own undertaking or from the order of the Court,he is excused from making a payment of the nature of a judicialact on a Sunday. Now, the question arises in the present casewhether the obligation imposed upon the ^defendant was anobligation to perform a judicial act? I do not think it was. Heundertook as a condition of the order made by the Court to pay a
3I. L.; R. 10 Bom. 433.220 K. L. B. 471..
( 410 )
sum of money on a particular day. If his undertaking had been topay money into Court, then, I think, it might well have been arguedthat he was entitled to pay the money into Court, on the Monday.Thjs is nowhere expressly indicated. Nor is it expressly stated inVoet*e account of the subject, bk. II., Tit. XIT. But it is clearthat a person is relieved from responsibility to make a paymentin the nature of a judicial act on a Sunday, and our legislature -in the two Statutes, to which I have referred, proceeds upon theprinciple that in such cases an obligation may be fulfilled on thefollowing day. I think in interpreting our own procedure we oughtto adopt the same principle as that which had been adopted in thesetwo Statutes.
I therefore think that if an order is made or an undertakinggiven that costs shall be paid into Court on a Sunday, that order orundertaking will be satisfied by payment into Coui*t on a Monday.It is quite true that in such a case a time may be limited, or anorder may be .made that the payment shall be made on or before aparticular day, and it might be said that in such circumstances the*party responsible ought to pay before the Sunday. I do not thinkthat it is a general principle. A person under such an obligation is*entitled to wait till the last possible moment for its performance.In doing so he, of course, takes a risk, and he may find it impossibleto perform his obligation at the tune. But, he is entitled to takethat risk. He is, therefore, entitled to any latitude which the lawgives him on making the payment. But, in the present case, itcannot be said that the defendant had undertaken to perform ajudicial act. He has undertaken to pay costs, and ah undertakingof that sort simpliciter does not imply payment into Court. In theordinary way it would be satisfied by payment to the other side.It is not every payment due on a Sunday that can be postponed.Section 8 of the Holidays Ordinance only refers to certain classes-,of debts—those which a man cannot be compelled to pay on aSunday. An obligation to pay costs in pursuance of an undertakingis, in my opinion, not within this class of debts, unless the obliga-tion is to pay money into Court.
For these reasons I am of opinion that it was not competent tothe defendant to pay the money on the Monday. I would, therefore,dismiss the appeal, with costs.
Schneider J.—I agree.
SIMON SINGHO v. WILLIAM APPUHAMY