de Silva v. Hirdarmani Ltd.
Present: Nagalingam A.C.J., Gratiaen 3. and Weerasooriya 3.T. A. K. DE SILVA, Petitioner, and HIRDARMANI LTD.,
S. C. 175—Application for conditional leave to appeal to the PrivyCouncil in S. C. 94, D. C. Colombo 21772
Privy Council—Application for conditional leave to appeal—Valuation of “ matterin dispute on the appeal ”—Notice to opposite party—Grounds of appeal neednot be specified—Rules 1 and 2 of Schedule to Appeals (Privy Council)Ordinance.
Plaintiff sought to recover from defendant a sum of Bs. 2,250 as arrears ofpayments due to him under an agreement whereby the defendant was allegedlyobliged to pay the plaintiff a monthly allowance of Its. 150 for the rest ofplaintiff’s life. He further claimed the additional sum that would become due,under the agreement, from date of action till date of decree and for legal interest.The trial Court entered judgment in favour of plaintiff for a total sum of lessthan Bs. 5,000. The defendant appealed, and his appeal was allowed. Theplaintiff, thereupon applied for conditional leave to appeal to the Queen inCouncil.
Held, that, for the purpose of determining the value of the matter in disputeon the appeal to the Queen in Council, (1) the amounts that became payableto the plaintiff under the alleged agreement subsequent to the date of thedecree of the trial Court and up to the date when the Supreme Court pronouncedjudgment should not be taken into consideration, (2) although the amount atstake in the action was less than Bs. 5,000, representing only part of the instal-ments that had fallen due up to the date of decree of the trial Court, the actionitself raised the entire question of the existence and validity of the contractbetween the parties, and a settlement of that question one way or the otheraffected the rights and liabilities of parties beyond the sum of Bs. 5,000 ; theplaintiff was therefore entitled, under the second part of Buie 1 (a) of theSchedule to the Appeals (Privy Council) Ordinance, to appeal as of right to theQueen in Council.
Held further, that the notice given by an appellant to the opposite party inaccordance with Buie 2 of the Schedule to the Appeals (Privy Council) Ordinanceneed not specify the particular grounds upon which it is intended-to make theapplication for conditional leave.
Kasipillai v. Nagalinga Kurukkal (1952) 54 N. L. B. 183, overruled.
Application for conditional leave to appeal to the Privy Council.It was referred to a Bench of three Judges for determination.
H. W. Jayewardene, with D. R. P. Goonetilleke, for the defendant respon-dent.—There are two objections to the present application. Eirstly, thematter in dispute on the appeal is not of the value, of Rs. 5,000 and,secondly, the notice given of the intended application is bad in law.
The plaintiff-petitioner has valued the action at Rs. 2,250. He mustplace a value on his action when he comes into Court. Once he has sovalued it he cannot subsequently change it to bring him within Rule 1 (a)of the Schedule to the Appeals (Privy Council) Ordinance.
2J. N. B 28742—1,592 (8/53)
de Silva v. Hirdarmani Ltd.
The petitioner had. to place evidence necessary for assessing the valueof the right. Up to date he has made no attempt to place before Courtany material to value his right. See Appuhamy v. Victor Corea x, Baba-pulle v. Bajaratnam2, Pemaralne Thero v. Indascvra Thero3. Thevalue of the right is the market value—of which there is no evidence.The Court of Appeal cannot set out on its own to place any value—Ahamadu Lebbe v. Abdul Coder*; Sokkalal Ram Sait v. Nadar5 ; SubbiahPillai v. Fernando 6. The proper test has been laid in the English casesof Allan v. Pratt7 and Macfarlane Leclaire 8. These principles of valua-tion have been consistently followed here. See Bandara v. Bandara9,De Alwis v. Appuhamy*0, Joseph v. Sockalingam Chetty11, Gooneraine v.Bishop of Colombo12 and Fradd v. Fernando13.
In India the position is somewhat different under section 110 of theIndian Civil Procedure Code. The important distinction in the corres-ponding Indian provision is that it is not only necessary that the subjectmatter in dispute on the appeal should be of the value of Its. 10,000 butalso that the subject matter of the action in the court of first instancemust be of the same value. It is very clear therefore that accruinginterest and mesne profits cannot be tacked on to get the sum total overthe Its. 10,000 mark. Vide Mangamma v. Mahalakshmamma14. Thepetitioner in the present case has come to Court asking for a decree as setout in paragraph 4 of the petition. Therefore his case comes under thefirst part of Rule 1 (a) and he cannot rely on the second part. VideMangamma v. Mahalakshmamma14 and Subramania Aiyarv. Sellammal15.
On the question of notice, the judgment in Kasipillai v. Nagalinga Ku-rukkal16 is only the logical conclusion of the ruling in Vanderpooten v.Vanderpooten17. What is required under Rule 2 of the Schedule to theAppeals (Privy Council) Ordinance is notice of the intended application,and the application must be by petitioner. Therefore, what should beserved on the respondent is notice of the petition. The word “ intended ”is important. The effect of that word is that notice should be givenbefore application is made. Vide Wijesekera v. Corea18 ; Pathmanathan v.Imperial Bank of India19; Balasvbramaniam Pillai v. Valliappa Chettiar 20.The practice apparently has been always to serve a copy of the applicationalong with the notice. Vide Wijesekera v. Corea16.
L. G. Weeramantry, with J. R. M. Perera, for the plaintiff petitioner,was called upon to address only on the question of the value of thematter in dispute on the appeal.—Petitioner comes under the second partof Rule 1 (a) of the Schedule to the Appeals (Privy Council) Ordinance,namely, “ some civil right amounting to or of the value of Rs. 5,000 orupwards Rule 1 (a) emphasises particularly the fact that the decisivevalue is that of the matter in dispute on the date on which appeal to
(1900) 1 Browne.165.
(1900) 1 Browne 304.
(1938) 16 Times 43.
(1931) 33 N. L. B. 337.
(1939) 40 N. L. B. 553.
(1950) 52 N. L. B. 217.
' (1888) 13 A. G. 780.
(1862) 15 E. B. 462.
(1909) 1 Current L. B. 52.
(1929) 30 N. L. B. 421.
” (1930) 32 N. L. B. 59.i'2 (1931) 33 N. L. B. 6C.
13 (1934) 36 N. L. B. 132.
*■* A. I. B. 1930 P. O. 44.
15 A. I. B. 1916 Madras 985 at 988.38 (1952) 54 N. L. B. 183.
” (1949) 51 N. L. B. 145.
38 (1931) 33 N. L. B. 349.
(1937) 39 N. L. B. 103.
(1938) 40 N. L. B. 89.
NAQALEN'GAM A.C.J.—-de Silva v. Hirdarmani Ltd.
Privy Council lies. If that is the test, the amount involved is well overRs. 5,000. See Musswmat Ameena Kkatoor v. Radhabenad Misserx.
In regard to the Indian case of Mangamma v. Mahalakshmamma (supra),accruing damages can be added. Our Rules are different from the corres-ponding Indian Rules after amendment. Our Rules are to be interpretedin the light of local decisions and Indian cases before amendment.
The amount of the stamps affixed is not conclusive of the value of thesubject-matter—Mussumat Ameena Khatoor v. Radhabenod Misser(supra) ; De Alwis v. Appuhamy 2; Alles v. Alles 3.
Cur adv. vult.
September 14, 1953. Nagaiangam A.C.J.—
Two grounds of objection have been taken by the defendant-respondentto the application for conditional leave made by the plaintiff-petitionerto appeal to the Queen in Council. They are, firstly that the minimummonetary limit prescribed by Rule 1 of the Schedule to the Appeals(Privy Council) Ordinance (Chapter 85 ) has not been reached, andsecondly that the notice given of the intended application is bad in law.
The action was instituted by the plaintiff to recover a sum of Rs. 2,250alleged to be arrears of payments due to him under an agreement at therate of Rs. 150 a month and for the recovery of the additional sum thatwould become due at the same rate from date of action till date’ of decreeand for legal interest. The lower court entered judgment on 3rdNovember, 1950, and at that date the total amount due to the plaintiffunder the decree was under Rs. 5,000. The defendant appealed andthis court allowed his appeal and dismissed the plaintiff’s action on3rd March, 1953.
The contention on behalf of the defendant is that in these circumstancesthe matter in dispute on the appeal to the Queen in Council does notamount to the value of Rs. 5,000 or upwards. On behalf of the plaintiff,however, it has been urged that for the purpose of determining the valuein dispute on the appeal to the Queen in Council, the amounts that becamepayable to the plaintiff subsequent to the date of the decree of the lowercourt and up to the date when this court pronounced judgment should betaken into consideration.
I do not think that the contention of the plaintiff is sound. The plain-tiff did not apply, and in fact he could not have asked, for a decreeindefinitely in futuro for payments to be continued to be made to himat the rate of -Rs. 150 without specifying some time limit. In fact in theplaint he has not asked for payment to be made to him during anindefinite period of time. He has definitely, and I think quite properly,fixed the period up to which the court should assess the amount payableto him as th^ date of entering the decree, and the lower court hasentered decree in accordance with the prayer contained in the plaint.
It was also sought by the plaintiff to support his argument by referenceto what was termed the reciprocity test. It was put forward in this way.
(1859) 7 Moore’s I. A. 261.* (1929) 30 N. L. B. 421.
* (1945) 46 N. L. B. 445.
NAG ALIN GAM A.C.J.—de Silva v. Hirdarmani Ltd.
It was said that had this court affirmed the judgment of the lowfer court thedefendant would have been entitled to a right of appeal to the Queen inCouncil because the liability which the plaintiff would thereby seek toget rid of would have been over R-s. 5,000. I do not think this proposition issound either, for had this court affirmed the judgment of the lower court atthe date it did set it aside, even so the amount recoverable by the plaintiffunder the decree would not be anything greater than what had been fixedunder the decree of the lower court ; it would be obvious that under thedecree so entered the plaintiff could not have issued execution for a sumwhich may have become due subsequent to the date thereof, though it iseasy to see that he would have a right to institute an action in order torecover any such sum. The test of reciprocity, too, therefore fails.
The plaintiff, however, submits in the alternative that the appealinvolves indirectly “ some civil right amounting to or of the value ofRs. 5,000 or upwards”. It is said on his behalf that the effect of the judgmentof the lower court was to affirm the validity of the agreement under whichhe claims, and it would have operated as res judicata in regard to theexistence and validity of the contract, and the liability of the defendant topay him the sum of Rs. 150 a month so long as the other conditions con-tained in that behalf continued to be fulfilled would have been conclusivelyand finally determined thereby. But it is urged that as a result of thejudgment of the lower court being set aside by a finding of this court'that there is no binding contract between the plaintiff and the defendant,the principle of res judicata now operates adversely against the plaintiff tothe extent that he can at no future time claim any payment under theagreement for the judgment of this court is conclusive on the non-existenceof a valid agreement between the parties.
It is pointed out further that having regard to the events that haveoccurred since the date of the judgment of the lower court up to at leastthe date of application for conditional leave, the reversal of the judgmentof this court by the Judicial Committee of the Privy Council would havethe effect of restoring to the plaintiff not only the amount decreed underthe judgment of the lower court but also indirectly confer on him the rightto recover such sums as have accrued subsequent to the date of the judg-ment of the District Court and up to now, involving, as it then would, thedetermination of a right which certainly would be over Rs. 5,000 in value.
Mr. Jayawardene for the respondent strongly relied upon the case ofMangamma v. Mahalakshmamma ' . That case, if at all, would have abearing on the earlier question I have discussed. In that case the ques-tion was whether interest should be permitted to be added to the amountclaimed, in order to reach the requisite monetary limit, and it was heldthat it could not be so added, because under the corresponding Indian pro-vision it was not only necessary that the subject-matter in dispute onappeal should be of the value of Rs. 10,000 but that the ^subject-matterof the action also in the court of first instance must be of the same value.Apart from authority, it is manifest that one cannot tack on the interestthat has accrued between the date of institution of action and the date ofdecree for the purpose of ascertaining that the amount in dispute at thedate of action is the total of those two sums.
1 A. I. R. (1930) P. C. 44.
NAGALINGAM A.C. J.— de Silva v. Hirdarmani Ltd.
The precise point that arises in this part of the argument is, however,covered by another case which is also one delivered by the Privy Counciland that is the case of Hatha Krishna Ayyar v. Sunderswamy Iyer1. Aswas observed by Lord Shaw in that case,
“ the sum of money actually at stake may not represent the true value.The proceeding may, in many cases, such as a suit for an instalment ofrent or under a contract, raise the entire question of the contractrelations between the parties and that question may, settled one wayor the other, affect a much greater value, and its determination maygovern rights and liabilities of a value beyond the limit. ”
That is the exact position in this case. While it is true'that the amount atstake in the action is under Rs. 5,000, representing only part of theinstalments that had fallen due up to the date of decree of the lower court,the action itself raises the entire question of the existence and validity ofthe contract between the parties, and a settlement of that question oneway or the other affects the rights and liabilities of parties beyond thesum of Rs. 5,000.
I therefore hold that the appeal involves a civil right of the value ofover Rs. 5,000 and that the plaintiff is entitled as a matter of right toappeal to the Queen in Council.
I now turn to the next objection raised, namely that relating to thesufficiency of the notice. The requirement as to the notice to be givento the opposite party is to be found in Rule 2 of the Schedule to theAppeals (Privy Council) Ordinance (hereinafter referred to as Ordinance),and it rims as follows :—.
“ Application to the court'for leave to appeal shall be made by peti-tion "within thirty days from the date of the judgment to be appealedfrom, and the applicant shall, within fourteen days from the date ofsuch judgment, give the opposite party notice of such intended applica-tion. ”
The notice served on the defendant Company has been produced by itsmanaging director, and it runs as follows :—
“ Take notice that I, T. A. K. de Silva, the plaintiff respondent in theabove styled action will in accordance with the Appeals (Privy Council)Ordinance apply to the Honourable the Supreme Court of the Islandof Ceylon for leave to appeal to Her Majesty the Queen in Councilagainst the judgment and decree of the Supreme Court pronouncedon March 3, 1953. The application for conditional leave will be filedin the Supreme Court within 30 days of the said judgment.
– (Sgd.) T. A. K. de Suva,11/3/53
It is urged that as the notice does not set out the grounds upon which itis intended to make the application for conditional leave the notice isbad. The law in this sense was interpreted in the case of Kasipillai et al. v.
1 A. I. R. (1922) P. C. 257.
2*J. N.B 28742 (8/53)
7SNAGALINGAM A.C.J.— de Silva v. Hirdannani Ltd.
Nagalinga Kurukkal x, and my brother Gunasekara J. who delivered thejudgment in that case came to that conclusion largely influenced by adictum of Wijeyewardene C.J. in the cage of Vander Poorten v. VcmderPoorten et al. 2 (in which case he himself had taken part) where the learnedChief Justice suggested that the-
“ object of giving notice is to enable the opposite party to be preparedto show, if possible, that the plaintiff is not entitled to appeal. Theopposite party should, therefore, know in time whether the applicantclaims a right to appeal and in that case, on what grounds, orwhether he pleads that the Court should exercise its discretion inbis favour and permit him to appeal
With all respect to the learned Chief Justice other reasons can be suggestedfor the necessity to give notice to the opposite side of an intended appli-cation for leave to appeal. An appeal to the Queen in Council would havethe effect of staying execution proceedings. Rule 7 of the Schedule to theAppeals (Privy Council) Ordinance expressly provides that this Courtshall have power, in granting leave to appeal to the Queen in Council,to direct the judgment appealed from to be carried into execution, subjectto conditions, if any. In the absence of such a direction any applicationfor execution made to the District Court even though it be made beforethe filing of the application for conditional leave would be futile andabortive. See the case of de Silva v. Hulme King 3.
I do not think that one should speculate upon the reasons for therequirements as to notice of the intended application beyond drawing theobvious inference to be drawn from such a requirement, which in thelanguage of Hearne J. in the case oi Balasubramaniam Pillai v. ValliappaChettiar 4 is
“ merely to apprise him (the opposite party) within a reasonable timeof the fact that the litigation is not at an end, and that the unsuccessfulparty has the intention of applying to the Court for leave to take thesubject-matter in dispute between the parties to the Privy Council ”.
In any event, the opposite party would have ample time and opportu-nity after the application is filed in court to get ready to challenge theground or grounds upon which the right of appeal may be based by anapplicant for leave to appeal. The application is required by the Rulesframed by this Court to contain a statement of the particular ground uponwhich the appeal is sought to be rested, whether under the first or secondpart of sub-rule (a) or under sub-rule (b) of Rule 1 of the Schedule to theOrdinance—vide the form in Schedule II to the Appellate Procedure(Privy Council) Order, 1921 5.
It is to be observed that there is no express provision either in the Ordi-nance or in the Rules that on the filing of the application for conditionalleave notice of such application should be given to the respondent. Accor-ding to the Registrar, no application to Court is made now for
(1952) 54 A7. L. R. 1S3.-3 (1935) 14 G. L. Rec. 235.
(1949) 51‘N. L. R. 145.4 (193S) 40 A7. L. R. 89.
5 Subsidiary Legislation, Vol. I, page 472.
1ST AGAX.IJST GAM A.C.J.—de Silva v. Hirdarmani Lid.
such, a notice, nor is there a uniformity of practice from which one couldsay that the applicant himself serves a copy of the application on theopposite party. In fact in this case there is nothing on record to indicatethat the respondent was given any intimation of the filing of the appli-cation for conditional leave or that a copy of that petition was servedupon him. According to the Registrar, the parties make inquiries at theRegistry, and apprise themselves of the contents of whatever papersmay have been filed in the Registry.
In contrast to this statement of the Registrar, Poyser S.P.J. inthe case of Pathmanathan v. The. Imperial Bank of India 1 makes thesignificant observation :—.
“ Further in my experience the practice in this Court has been forthe applicant to apply in the first place ‘ ex parte 5 for a notice of hisapplication to be served on the respondent and that would appearto be the most convenient practice. ”
The notice of application the learned Judge refers to is the notice of thefact that application for conditional leave has been filed in Court. Butwhether notice is effected by a formal instrument issued at the instanceof Court, or without the intervention of Court by the applicant, orwhether even without any such instrument being served the respondentsecures knowledge of the filing of the application by his own exertions,it would be correct to say that the application for leave is not disposed ofexcepting in the presence of or at least after proof that notice of theapplication has been given to the respondent ; and in practice the applica-tion itself is never disposed of in fact within thirty days of the date onwhich the judgment appealed from was delivered, and there is alwayssufficient time for the respondent to get ready to show cause against theapplication after receipt of notice or the gaining of knowledge of thefiling of the application without it being necessary at all to be apprised,within the fortnight allowed to an applicant to give notice of the intendedapplication, of the ground on which the right of appeal is based. '
It is not without interest to refer to a remark of Wijeyewardene C.J.,then Wijeyewardene A.J., in the ease of Balasubramaniam Pillai v.Valliappa Ghettiar (supra)—(he was associated with Hearne J. in that■case)—which is as follows :—
:: An applicant who sends notice and then files his application beforethe notice reaches the opposite party is an applicant who gives noticeof his intended application, for at the time he sent the notice he hadnot made the application but had only formed the intention of makingsuch application. ”
I would emphasize the words, “ but had only formed the intention ofmaking such an application ”. And that may be said to be preciselythe object of giving notice of the intended application, that is to say,that the applicant had formed an intention of making the application
(1937) 39 K. L. It. 103.
NAGAUNGAM A.C.J.—de Silva v. Hirdarmani Ltd.
"but at that stage he may not have made up his mind as regards the-grounds upon which he bases his application for the appeal.
Mr. Jayawardene for the respondent also called attention to the-practice of a copy of the application for leave being served along withthe notice of the intended application, referred to by Drieberg J. in hisjudgment in the case of Wijeyesekere v. Corea 1. But that was a practicethat was in vogue under a provision somewhat different from the onewhich governs the question now. The present Rule 2 of the Scheduleto the Ordinance was introduced by an amendment of 1918 of the-previously existing Rule, which ran as follows :—
“ Application to the Court for leave to appeal shall be made by-petition within thirty days from the date of the judgment to be appealedfrom, and the applicant shall give the opposite party notice of hisintended application. ” 2
It will be observed that under the earlier Rule both the notice of theintended application and the application to Court had to be made withinthirty days of the date of the judgment appealed from. It was there-fore convenient to combine the service of both the application and the-notice, and effect at one time the service of both these documents. Ithink Poyser S.P.J.’s reference in Pathmanathan v. The Imperial Bank ofIndia (supra)3is very probably to the practice under the earlier provision.It will also be seen that the practice of alleging in the petition that noticehad been served referred to by Drieberg J. in Wijeyesekere v. Corea (supra)4,has been altered by the Rules framed—vide the form of petition inSchedule II to the Rules. It does not therefore appear to have beennecessary under the earlier provision for the notice of the intendedapplication to contain the ground on which the right of appeal is based,.which would properly have been embodied in the copy of the petitionitself which, as indicated, would be served on the respondent at the same-time as the notice.
Mr. Jayawardene, however, says that as a result of the alterationin the law by the requirement that the notice of the intended applicationshould be given within fourteen days, while the application to Courtcould be made within thirty days, of the date of the judgment, it becamenecessary for the notice itself to set out the grounds of appeal. I do notthink this follows. The notice continued to perform the same functionas earlier, merely a notice of an intention to appeal and nothing more,,the grounds of the right of appeal being relegated to the petition for leave,and this is all that in my view is required under this new provision.
Though it he a small point, it is of some significance that Rule 2 of the-Schedule to the Ordinance refers in the first part of it to the applicationthat has to be made to Court for leave to appeal, but in the latter partof it it refers not to notice of such application but to nbtice of suchintended application, which clearly emphasizes the view that at thatstage the reference is only to an intention to make an application, notto the application itself.
(1931) 33 A’. L. R. 349.3 (1937) 39 N. L. R. 103.
Legislative Enactment 1923, Vol. IV, page 422. 4 (1931) 33 -V. L. R. 3-19..
GEATIAJEK" J.—da Silva v. Eirdarmani Ltd.
I do not therefore think that the ground upon which the right of appealas based need be stated in the notice. The notice, therefore, that has-been served on the defendant-respondent is in compliance with therequirement of the law, and the objection as to its sufficiency fails.
The case of KasipiUai et al. v. Nagalinga Kurukkal (supra)1 must beregarded as wrongly decided.
At the conclusion of the argument we allowed the application and stated-that we would give our reasons later, which I do now.
■Gratia kn J.—
I agree with my Lord the Acting Chief Justice. I desire, however,±0 add a few observations of my own out of respect for the learnedJudges who, in regard to the second objection raised by the respondent,had taken a different view in Vanderpoorten v. Vanderpoorten2 andKasipiUai v. Nagalinga Kurukkal1.
The petitioner was entitled as of right to appeal to Her Majesty inCouncil against the final judgment pronounced by this Court dated 3rdMarch, 1953. The value of the “matter in dispute on the appeal”,-assessed in relation to the immediate relief prayed for in the plaint,admittedly falls below Rs. 5,000, but this does not conclude the argumenton the respondent’s first objection. In the facts of the present case,it is manifest that the appeal indirectly (and, I am inclined to think,directly) “ involves ” a civil right whose value, if that right be establishedin the litigation, exceeded Its. 5,000 on 3rd March, 1953, and has appre-ciated since that date. The second part of Rule 1 (a) of the Scheduleto the Ordinance therefore comes into operation. The basis of thepetitioner’s claim to recover Rs. 2,250 from the respondent Companyin this action is that this sum represents arrears of payments due to himunder an agreement whereby the respondent was allegedly obligedto pay him a monthly allowance of Rs. 150 subject to certain conditions.The respondent denies that such an agreement ever existed, and this•Court has upheld the objection. In the result, the respondent would,so long as the judgment of this court stands, forfeit not only the arrearsclaimed in the present action but also any claims which, in his submission,have since accrued. It is just such a situatibn which the second partof Rule 1 (a) is intended to cover, because, as Lord Shaw points out inHatha Krishna Ayyar’s case 3, “ the sum of value actually at stake ” inthe immediate litigation does not represent the entirety of the financialimplications directly or indirectly arising from the ratio decidendi of thejudgment which the petitioner seeks to challenge in his proposed appealto Her Majesty in Council.
The second objection raised by the respondent remains to be considered.The argument is that the petitioner has forfeited In's right to appeal toHer Majesty in Council because he has failed to comply with the statutory•condition prescribed by Rule 2 which is in the following terms :—
“ Application to the Court for leave to appeal shall be made bypetition within 30 days of the judgment to be appealed from, and
1 (1952) 54 N. L. R. 183.2 (1949) 51 1V. L. R. 145.
A. I. R. (1922) P. C. 257.
GRATIAEN J.—cZe Silva v. Hirdarmani Ltd.
the applicant shall, within 14 days from the date of such judgment,
give the opposite party notice of such intended application
It is not disputed that the petitioner did in fact apply to this Courtwithin 30 days for leave to appeal to Her Majesty in Council, and thathe has, within the prescribed period, given the respondent due noticeof his intention to make that application, Nevertheless, the respondentcontends, the notice served on him was invalid because it did not specifythe particular ground on which he asserts his right to appeal to HerMajesty in Council.
Rule 2 does not expressly direct that a person should specify in advancethe grounds on which he intends to base his application to appeal to HerMajesty in Council from a judgment of this Court. Nor does the Ruleso direct by necessary implication. I therefore find no justification forthe view that the legislature must have intended in this particularcontext to penalise a litigant for disobedience to an assumed statutory-direction by depriving him of his accrued right to take the litigationbefore the highest judicial tribunal in the Commonwealth—particularlywhere, as here, the opposite party cannot seriously pretend that suchnon-obedience has caused him the slightest prejudice. I am not at alldisposed to read into the procedural rules provided by the Ordinancemandatory directions which are not clearly and unambiguouslyexpressed, or to infer that a drastic penalty should be imposed on a litigantfor disobedience to an unexpressed statutory direction. Indeed, itis not always an easy matter, even where procedural requirements areexpressly laid down by statute, to decide whether they are to be consi-dered as “ mere directions or instructions involving no invalidatingconsequences in their disregard, or as imperative, with an impliednullification for disobedience ”.—Maxwell on the Interpretation of Statutes(10th Edn.) p. 376.
Rule 2, as far as it goes, is satisfied if an intending appellant givesnotice to the opposite party, within the prescribed period of 14 days,of his intention to proceed further with the litigation. To that extent,the Rule lays down an absolute enactment which must be obeyed orfulfilled absolutely —Woodward v. Sarsons 1. The underlying purposeof the rule is merely (a) to apprise the opposite party within 14 daysthat the litigation must not be assumed to be at an end—per Hearne J.in JBalasubramaniam Pillai’s case 2, and (b) as my Lord the Acting ChiefJustice has pointed out, to give the opposite party, if he so desires,timely opportunity to apply for execution under Rule 7. As thepetitioner in the present case has complied with Rule 2, his applicationfor conditional leave cannot be refused.
Weerasooriya J.—I have seen the reasons as stated by My Lord theActing Chief Justice for allowing conditional leave to appeal in this case.With those reasons I am in respectful agreement and I havfe nothing toadd to them.
1 (1875) L. R. 10 C. P. 733.
(1938) 40 N. L. R. 89.
T. A. K. DE SILVA, Petitoner, and HIRDARAMANI LTD., Respondent
de Silva v. Hirdarmani Ltd.