M. C. Colombo v. Piyasena (Ranasinghe, J.)
The Municipal Council of Colombo
COURT OP APPEAL.
RANASINGHE, J. AND ATUKOJRALE, J-C.A. (S.C.) 519/78—D.C. COLOMBO 821/M.
JULY 30, 1980.
Civil Procedure Code, sections 755 (3), 759 (2)—Requirement thatpetition of appeal be filed within sixty days of judgment—Are Sundaysand public holidays excluded from computation—Dies non—Applicationfor relief by appellant—Circumstances when such application will beentertained—Holidays Act, No. 29 of 1971—Interpretation Ordinance(Cap. 2), section 8 (3)-
In the computation of the period of sixty days from the date ofjudgment set out in section 755 (3) of the Civil Procedure Code forfiling a petition of appeal, Sundays and public holidays are not excludedand accordingly a petition filed sixty-five days after the delivery ofjudgment is out of time.
In the present case, the defendant-appellant’s application to begiven relief in terms of the provisions of section 759 (2) of the CivilProcedure Code was not entitled to succeed as no good and sufficientground had been established for the granting of such relief. Thedefendant-appellant made no application for relief under this sectionuntil the present application made by the plaintiff-respondent that theappeal should be abated came up for hearing nor was any explanationpreferred for the failure to present the petition of appeal within sixtydays.
Effect of a day being declared a dies nort discussed.
Cases referred to
Kulantaivelpillai v. Marikkar, (1918) 20 N.L.R. 471.
Stephens v. Ghafoor, (1925) 26 N.L.R. 493,
Wickremasinghe v. de Silva, (1978-79) 2 Sri L.R. 65.
Sameen v. Abeywickrema, (1963) 64 N.L.R. 553 : 63 C.L.W.. 97 ;
(1963) A.C. 597 ; (1963) 2 W.L.R. 1114 ; (1963) 3 All EJi. 382.
Howard v. Badington, (1877) 2 P.D. 203 ; 42 J.P. 6.
APPLICATION for an order of abatement of an Appeal.
J. W. Subasinghe, for the defendant-appellant.
M. M. K. Sabaratnam, for the plaintiff-respondent.
Cur. adv. twit
September 8, 1980.
Th:s matter has come up before us on an application made on05.07.79 by the plaintiff-respondent for an order from this courtthat the appeal of the 1st defendant-appellant has abated.
The judgment in this case was delivered by the District Courton 28.07.78. The notice of appeal was given on 10.08.78; and the
Sri Lanka Law Reports
(1980) 2 S.L.R.
petition of appeal presented on 2.10.78. It is the position of theplaintiff-respondent that while the notice of appeal was givenwithin the period of 14 days specified in section 754 (4), CivilProcedure Code the petition of appeal has not been presentedwithin the period of 60 days specified in section 755 (3) of thesaid Code. The said petition of appeal has in fact been tendered—excluding the day on which judgment was delivered and theday on which the said petition of appeal was filed—65 daysafter the delivery of the judgment.
Learned counsel appearing for the first defendant-appellanthas opposed this application on two grounds: that, in the com-position of the period of 60 days all Sundays and Public Holidaysshould be excluded as they have been declared to be dies nonby the provisions of the Holidays Act No. 29 of 1971: that, asthere have been 13 such dies non between 28.08.78 and 02.10.78,the said petition of appeal has been presented well within thesaid period of 60 days : that in any event, the 1st defendant-appellant should be given relief in terms of the provisions ofsection 759 (2) of the said Code.
Section 2 of the Holidays Act, No. 29 of 1971, provides thatevery Full Moon Poya Day and every Sunday “shall be a public
holiday, and ” Section 3 provides that the several days
specified in the First Schedule to the said Act should also bepublic holidays. Section 5(1) of the said Act states that “everypublic holiday shall be a dies non and shall be kept as aholiday ”.
The expression “ dies non ” has been considered by the-Supreme Court in several cases. In the case of Kulantaivelpilldiv. Marikkar (1) the Supreme Court considered the expression“ dies non " as appearing in the Holidays Ordinance, No. 4 of.1886. Bertram, C.J. in the course of the judgment delivered inthe said case, stated at p. 474:
“The effect therefore, in my opinion, of the declaration of aday as a public holiday and dies non by Ordinance 4 of 1886 istwofold. In the first place it excuses judicial officers and theirsubordinate ministerial officers from the necessity of'attending Court, or of performing any judicial or ministerialacts on that day ; in the second place, it protects any mem-ber of the public from being forced to attend Court, or toattend any judicial proceeding held elsewhere than in Courton that day. It does not, in my opinion, affect any judicialact or proceeding which may be validly done or taken in theabsence of a party, and which consequently does not involvehis personal attendance. Further it does not preclude a
M. C. Colombo v. Piyasena (Ranaslnghe, J.)
judicial officer, or any of his ministerial subordinates fromwaiving his privileges if he so decides, and from doing ar.yact or taking part in any judicial proceeding on a day declaredto be a holiday. There is nothing either in the Ordinanceor in the principles laid down by Voet which declaresnull and void any judicial act which a judicial officervoluntarily elects to do, and which does not involve thecompulsory attendance before him of any party affected
Kulaniaivelpillai’s case (supra) was followed in the case ofStephens v. Ghafoor (2).
On a consideration of the interpretation placed on the expres-sion “ dies non ” by the aforementioned judgment, it appears tome that the legal effect of a day being declared a “ dies non ” isthat any judicial act or proceeding, which does not involve theappearance of a party done or held on such a day would not, onthat ground alone, be invalid : that no party to any matter pend-ing in a court, or any member of the public could be compelledto attend court on such a day. That be_ng the only effect of aday being a “ dies non ” I do not think that such a day could onthat ground alone, in the absence of any express provision tothe contrary, be excluded in the composition of a limited periodof time within which an act has to be done by a party to aproceeding before a court of law.
According to the provisions of the Interpretation Ordinance(Chapter 2) intervening Sundays or public holidays are to beexcluded from the computation of a limited period of time, withinwhich any act has to be done, only where such period does notexceed 6 days.
It has to be noted that, whilst the provisions of section 754 (4)of the said Code specifically states that, in the computation ofthe period of 14 days set out therein, the day on which the orderor decree appealed from was pronounced, the day on which thepetition is presented to Court, and all intervening Sundays andpublic holidays should be excluded from such conclusion, nosuch exclusions are permitted in the computation of the periodof sixty days set out in sub-section (3) of section 755 of the saidCode.
Having regard to the foregoing matters, I am of opinion that,in the computation of the period of. sixty days set out in section'755 (3) of the said Code, Sundays and public holidays are notto be excluded and should, be included in the calculation of thesaid period of sixty days.
;42Sri Lanka Law Reports(1980) 2 S. L. R.
■ – — '
The question whether the acts set out in section 754(4) of thesaid Code—the giving of notice of appeal—and in section 755 (3)
. of the said Code, the presenting of the petition of appeal—shouldboth be done within the respective periods of time set out in thesaid sections came up for consideration by this Court in the caseof Abeyratne Wickremasinghe v. Magilin Nona de Silva (3)and it was held that both provisions of law are imperative andthat not only must the notice of appeal be tendered wthin thetime specified in section 754(4) of the said Code, but also thepetition of appeal must be presented within the period of sixtydays specified in section 755 (3) of the said Code.
I am therefore, of opinion that the petition of appeal, whichhas been presented in this case, has been so presented to courtafter the expiry of the period of sixty days within which it had,,according to the provisions of section 755 (3) of the said Code,to be presented to the District Court.
The only question which remains to be considered is whetherthe defendant-appellant should be given relief in terms of theprovisions of section 759 (2) of the said Code : The provisionsof section 759 (2) of the said Code are identical with the provi-sions of section 756 (3) of the Civil Procedure Code (Chapter 101)as it stood prior to the amendment of 1977. The provisions of thesaid section 756 (3) were considered by the Privy Council in thecase of Sameen -v. Abeyivickrema (4), and Their Lordshipsstated :
“In Their Lordships’ view the Supreme Court is givenby this section the power to grant relief on such terms as itmay deem just where there has been a failure to complywith an essential requirement of the said section.
The only limitation imposed by the sub-section is thatthe Court has not power to do so, unless it is of the opinionthat the respondent has, not been materially prejudiced ”.(p. 562)
“ It does not follow that relief should be given even if therespondents have not been materially prejudiced but reliefshould not be lightly withheld for the effect of refusingrelief may be to deprive a litigant of access to the SupremeCourt, and if the original judgment is wrong, amount to adenial of justice. ” (p. 563).
In the case of Abeyratne Wickremasinghe v. Magilin Nona, deSilva (supra), the petition of appeal was filed 6.days after.theexpiry of the aforesaid period of 60 days. This Court in refusing
Jayasena v. Punchiappuhamy
the appellant relief quoted with approval the observations of
Lord Penzance, in the case of Howard v. Badington (5) that thecontinuation itself of a suit is a harm and does cause prejudice.
It must be noted that the present application has been madeby the plaintiff-respondent seven months after the aforesaidpetition of appeal was filed, and that up to the time of the saidapplication, or for that matter even up to the date on which thesaid application was heard before the court—the 1st defendant-appellant has not made an application for relief under the pro-visions of the aforesaid section 759 (2). No explanation has beenpreferred for the failure to present the said petition of appealwithin the said period of sixty days.
On a consideration of all these matters I am of opinion thatno good and sufficient ground has been established for the grant-ing of relief in terms of the provisions of the aforesaid section759(2) of the said Code, to the 1st defendant-appellant.
For these reasons, I make order refusing to receive thepetition of appeal presented to the District Court by the 1stdefendant-appellant on 03.10.78.
The appeal of the defendant-appellant is accordingly rejectedwith costs payable to the plaintiff-respondent.
ATUKORALE, J.—I agree.
The Municipal Council of Colombo v. Piyasena