John Silva v. William dt Silva
1971Present : Samerawickrame, J., and Weeramantry, J.
V. JOHN SILVA, Petitioner, and C. WILLIAM DE SILVA andanother, Respondents
S. C. S6/6S (with 8. C. ST/6S)—Application for conditional leave to appeal
to Her Majesty the Queen in Council under the Appeals (Privy Council)Ordinance (Cap. 100) in S. C. 620/65 (F) D. C. Matara 1704/L
Privy Council—Application for conditional leave to appeal thereto—Deficiency in
stamps—Curable defect—Appeals (Privy Council) Ordinance (Cap. 100).
Schedule, Pule 2—Stamp Ordinance (Cap. 247), ss. 41, 43 (1).
An application for conditional leave to appeal to the Privy Council is notvoid if it is insufficiently stamped and tlio deficiency has not been suppliedwithin the period of 30 days specified in Rulo 2 of the Schedule to tho Appeals(Privy Council) Ordinance. In such a cose tho Supremo Court may direct thopetitioner t-o supply the deficiency in stamps before a specified date.
Sandanam v. Jamaldeen (71 X. L. R. 145) followed.
Application for conditional leave to appeal to the Privy' Council.
E. B. Wikramanayake, Q.C., with N. R. M. Daluuatte, for thepetitioner-appellant.
C. Ranganathan, Q.C., with M. T. M. Sivardeen, for the respondents-respondents.
Cur. adv. vult.
522SAMERAWICICRA5IE, J.—John Silva v. William de Silva
October 29, 1971. Samerawickrame, J.—
Learned counsel for the respondents submitted that the applicationfor conditional leave to appeal should be rejected on the ground that itwas insufficiently stamped and the deficiency has not been suppliedwithin the period of thirty days specified in Rule 2 of the Schedule to theAppeals (Privy Council) Ordinance (Cap. 100). Though the view hadbeen taken in some earlier cases that where an application for leave toappeal was insufficiently stamped the application should be rejected,
N. G. Fernando, C.J., in Sandanam v. Jamaldeen 3—71 N. L. R. 145-—held that a deficiency arising from a bona fide error in the stampingof an application is not a fatal defect and that the deficiency may besupplied.
The object of the Stamp Ordinance is the collection of revenue and theprovisions that provide a sanction in respect of instruments that are notstamped or insufficiently stamped must be given such effect as will servethe object of the Ordinance without unduly interfering with the rights ofparties or causing any injustice. That no greater detriment than thepayment of a penalty should ordinarily result, by reason of non-stampingor insufficient stamping of an instrument, is clear from an examinationof the provisions of the Stamp Ordinance itself. Section 41 providesthat an instrument not properly stamped should not be received inevidence, but the proviso permits such an instrument to be admittedif the duty along with the penalty set out therein is paid. Therewas judicial decision upon the earlier Stamp enactment that where aninstrument had been admitted in evidence without objection, it couldnot be called in question at any later stage of the action on the groundthat it had not been duly stamped. This principle has found statutoryexpression in s. 43 (I) of the Stamp Ordinance (Cap. 247). It is also clearthat an instrument not property stamped is not void for the reason thatthere are provisions which permit the Commissioner to allow such aninstrument to be duly stamped on payment of the stamp duty and/orstamp duty plus penalty except in the cases of instruments chargeablewith six cents or bills of exchange or promissory notes.
It appears to me clear that the petition for conditional leave to appealwas not void. The application should not therefore be rejected on theground that no valid petition was filed within the period of thirty daysprovided for in the rules.
Section 41 of the Stamp Ordinance also provides that an instrumentnot property stamped shall not be acted upon. Had the deficiency beenapparent to the Registrar, he could have called for the deficiency beforohe took steps to have this application listed for hearing. It may be thatin making an order upon this application this Court will be acting upon itwithin the meaning of s. 41. I follow the procedure adopted by My Lordthe Chief Justice in the case referred to above and I direct the petitioner* (1968) 71 N. L. R. 145.
J ayau-icl:rema v. Nagajinghc
to supply the deficiency in stamps before 25th November, 1971, and Imake order that the application for conditional leave be allowed if thedeficiency is duly supplied.
There is an application by the petitioner for stay of execution and anapplication by the respondents for execution of decree. If the petitioner. furnishes security for due performance of the decree by depositing a sumof Its. 35,000 in cash with the Registrar of this Court and by hypothecatingit on or before 30th November, 1971, then execution of decree will bestayed. If security is not given as directed the respondents will beent itled to take out execution on entering into a bond in a sum of Rs.20,000with one surety for the due performance of any order that may be madein appeal.
Weebamaxtry, J,—I agree.
Application allowed conditionally.
V. JOHN SILVA, Petitioner, and C. WILLAM DE SILVA and another, Respondents