( 408 )
Present: Ennis A.C.J. and Dalton* -T.
STEPHENS v. GHAFOOR.851—D: C. Colombo, 5,908 and 6,484..
Holidays.Ordinance—Arbitrationproceedings—Dies ' non—Ordinance
of 1886, st ,4. .
Where an arbitrator Axed an inquiry on a public, holiday: .arid,having refused an application for a postponement by one of theparties, held the proceedings on that day in the absence of-the party..Held, that the proceedings were irregular.
PPEAL from an order setting, aside an award made ‘ on areference to arbitration by Court of two cases which were
consolidated for the purpose. After some delay, the arbitratorissued notice on April 15, 1924, fixing the inquiry for April 22. OnApril 19 the defendant wrote to the arbitrator saying that he hadjust received notice, and that he was. unable to get ready. On April22* the arbitrator proceeded to hear the plaintiff and his witnesses,when the. defendant appeared and asked for a postponement. Hisapplication ; was disallowed, and the .defendant then withdrew.The arbitrator completed, the inquiry and filed his award whichwas set aside by the District Judge on the motion of the defendant.
Bartholonietisz (with .him Choksy), for the appellant.,
E. W. Jayewardene, K.C. (with him if. V: Perera)y iox the
( m )^ May 0, 1925, Ennis A.C.J.—
Vm This is an appeal from an order setting aside an award. Itappears that there were two cases before the District Court—Nos-5,908 and 6,484. In the first of these cases, the plaintiff, who is theliquidator of the estate of Dutton Massey & Co. sued the defendanton three bills of exchange, and the defendant admitted his indebted-ness under the bills and claimed in reconvention for commissionand other matters. In No. 6,484 the plaintiff sued the defendantfor the return of certain goods entrusted to the defendant by DuttonMassey & Co. for sale; and he also claimed damages for failureby the defendant to use due diligence in selling the goods. Thecases were fixed for trial on March 7, .1928, and again on March 27,and again on July 30, and again on August 31, and again on December19, 1923, on which date the two cases were consolidated, and thematters in dispute referred to arbitration, the commission beingreturnable on or before March 3, 1924. On February 12, 1924,time was extended till May 26. But, for some reason, the paperswere not sent to the arbitrator until March 7. On March 10 thearbitrator wrote to the proctors of the parnies to ascertain a con-venient day for the inquiry, and then learnt that the defendant-proposed to revoke the proxy to his proctor. Finally on April 3, 1924,the arbitrator issued notice to the defendant, through the Court thathe would hold an inquiry on April 12. That notice was not servedas the defendant could not be found. On April 15 a new noticewas issued fixing the inquiry for April 22. The arbitrator sent thisnotice through the Court, and also by two registered letters to thedefendant’s private and business address. On April 19 the defend-ant wrote saying that he had just received notice, and was unableto get ready. On April 22 the arbitrator proceeded to hear theplaintiff and his witnesses, and in the mi.ddle of the inquiry thedefendant appeared and asked for a postponement. His applicationwas disallowed, and the defendant then withdrew. The arbitratorcompleted his inquiry and filed his award. Within the timeprescribed, the defendant filed a petition with an affidavit insupport, praying that the award might be set aside, and tjie learnedJudge on an inquiry into the matter of the petition made the orderunder appeal.
The order under appeal draws attention to the fact that April 22was a public holiday, and the learned Judge thought that a post-ponement should in the circumstances have been allowed. Thepetition of the defendant states that he had asked for a postpone-ment as the vacation had then commenced, and he found it difficultin the circumstances to retain another proctor. We have turnedto the Holidays Ordinance, No. 4 of 1886, and find that by section 4,public holidays and Sundays are dies non. For the effect of thissection there are two cases. Ooonewardene v. Padrick Sinno 1 and
1 5 C. lir. R. 309.
( 495 )
Kvlantaivelpillai v. Marikar.1 The first of those cases was decided *925.■on the ground that the proceedings taken on a Sunday were not
thereby null and void if the parties had not been prejudiced. The
second of those cases drew attention to the fact that the HolidaysOrdinance declared certain days to be dies non in order to protect themembers of the public from being forced to attend Court or judicialproceedings held elsewhere on those days. Had, therefore, theobjection been taken definitely on the ground tbat April 20, 21,and 22 were all dies won, and the defendant had received his noticeonly on April 19, it is difficult to see how the arbitrator could haverefused a postponement. Nobody, however, appears to havenoticed the fact that these days were dies non, and. that the defendantcould not be compelled to appear on those days. It appears thatlie took no part in the proceedings, and had appeared only for thepurpose of asking for a postponement. The fact, therefore, thatthe proceedings were conducted by the arbitrator without the•defendant being in attendance becomes an irregularity by virtue•of the Ordinance, and the defendant has been prejudiced by theproceedings being had on a dies non. Counsel for the appellantcontended that this was a technical objection, and that he couldmeet it by another technical objection, namely, tbat the petitionby the defendant did not set out this ground. It is true that thepetition does not in terms do this, but it gives the effect of theHolidays Ordinance by drawing attention to the fact that thearbitration inquiry was being held in vacation and to the peti-tioner's difficulty in obtaining a proctor at that time.
In the circumstances I am of opinion that the petition has suffi-ciently set out the substance of the objection, and that the orderunder appeal is right. I would accordingly dismiss' the appealwith costs.
I concur. There is only one thing that I would add. The trialJudge says in accordance with his order that it is quite competentfor the arbitrator to fix any date he wished. That, in my opinion,requires qualification. It would be subject to any party to theproceedings who might- appear waiving his right to object to thehearing being held on a day declared by the Ordinance of 188dto be a dies non.
» (191$) 20 N. L. R. 471.
STEPHENS v. GHAFOOR