Nanayakkara v. Wamakulasuriya
G. P. S. de SILVA, C.J.
KULATUNGA, J. ANDWIJETUNGA, J.
S.C. APPEAL NO. 34/93.
A. NO. 348/82 (FINAL).
C. HATTON NO. 912 DE.
OCTOBER 14, 1993.
Civil Procedure – Failure to hypothecate money deposited as security for costsof appeal – Section 759 (2) of the Civil Procedure Code.
The power of the Court to grant relief under s. 759 (2) of the Code is wideand discretionary and is subject to such terms as the Court may deem just. Reliefmay be granted even if no excuse for non-compliance is forthcoming. However,relief cannot be granted if the Court Is of opinion that the respondent has beenmaterially prejudiced in which event the appeal has to be dismissed.
Where notice of appeal was given accompanied by security for respondent's costsof appeal as required by Section 755 (2) (a) but there was failure to hypothecatethe sum deposited as security by bond as required by s. 757 (1) (and petitionof appeal was filed in terms of s. 755 (3) and the court ordered the record tobe forwarded to the Court of Appeal as required by s. 755 (4)), the negligenceof the attorney in not hypothecating may be relevant but it does not fetter thediscretion of the* Court to grant relief where it is just and fair to do so. The rulethat negligence of attomey-at-Law is the negligence of the client does not apply.
Per Kulatunga, J.
* Even though the District Court appears to have no power to reject anotice of appeal for failure to hypothecate security, it may perhaps call upon theappellant to rectify the defect where the non-compliance is observed at the stagewhen notice of appeal is given. If this were done, it may help in reducing thevolume of incidental proceedings before the Court of Appeal resulting from thefailure to hypothecate security by bond '.
Cases referred to :
Sameen v. Abeywickrema 64 N.L.R. 533 P.C.
Martin v. Suduhamy (1991) 2 Sri LR. 279.
Mendis v. Jinadasa 24 N.LR. 188.
Sri Lanka Law Reports
 2 Sri L.R.
APPEAL from order of the Court of Appeal.
ft K. W. Goonasekera with Upali Ponnamperuma for defendant – appellant.Faiz Musthapha, P.C. with Hemasiri Withanachchi for the plaintiff-respondent.
Cur. adv. vult.
November 11, 1993.
This is an appeal against the judgment of the Court of Appealdismissing the defendant's appeal on a preliminary objection that hehad failed to hypothecate the sum of Rs. 150 deposited as securityfor the respondent's costs of appeal. The Court held that the appellanthad failed to tender an explanation for his lapse and hence no reliefcould be granted in terms of s. 759 (2) of the Civil Procedure Code.
The power of the Court to grant relief under s. 759 (2) of theCode is wide and discretionary and is subject to such terms as theCourt may deem just. Relief may be granted even if no excuse fornon-compliance is forthcoming. However, relief cannot be granted ifthe Court is of the opinion that the respondent has been materiallyprejudiced in which event the appeal has to be dismissed. Theprinciples applicable to the exercise of this power have been clearlylaid down, particularly in Sameen v. Abeyewickrema.(1) and in therecent decision of this Court in Martin v. Suduhamy (2).
Whether or not relief may be granted in a particular case willdepend on its facts and circumstances. It would, therefore, be necessaryto examine the facts of the case before us.
The plaintiff sued the defendant who was the tenant of the premisesin suit for ejectment and damages on the ground that the premiseshad deteriorated owing to acts committed by the defendant, to wit,making structural alterations thereto and the demolition of a wall forthat purpose, without the plaintiffs permission. On 20.07.82 the learnedDistrict Judge gave judgment for the plaintiff for ejectment of thedefendant and damages in a sum of Rs. 750 and further damagesat the rate of Rs. 50 per month from 01.11.80 until the plaintiff isrestored to possession of the premises.
Nanayakkara v. Warnakulasuriya (Kutatunga, J.)
R. R. Sivalingam was the registered Attorney for the defendanton record until 24.11.87. He gave notice of appeal under s. 754 ofthe Civil Procedure Code on behalf of the defendant on 03.08.82which was accompanied by security (in a sum of Rs. 150) for therespondent’s costs of appeal, as required by s. 755 (2) (a). However,he failed to hypothecate the said sum by bond as required by s.757 (1). Thereafter, the petition of appeal in terms of s. 755 (3) wasfiled on 09.09.82 ; whereupon the District Judge ordered that therecord be forwarded to the Court of Appeal as required by s. 755(4).
The plaintiff then applied to the District Court for execution of thedecree pending appeal. This was settled and of consent the Courtordered stay of execution of the decree on condition that thedefendant deposited cash security to the credit of the action in asum of Rs. 5000. This sum was deposited. Those proceedings wereconcluded on 17.02.83. The record shows that Mr. Sivalingam hadbeen appearing for the defendant up to that date.
On 06.12.84, the Registrar of the Court of Appeal sent a letterto Mr. Sivalingam calling upon him to deposit a sum of Rs. 125for preparation of the brief. This was replied by Miss DamayanthiFernando, Attorney-at-Law who forwarded a money order for that sumand requested that the brief by sent to the defendant personally. Wenext have a bank receipt dated 29.10.87 for the payment of balancefees for the brief. According to this receipt a sum of Rs. 115 hadbeen " received from Mr. Sivalingam, Attorney-at-Law However,on 06.11.87 Mr. A. W. Leelaratne, Attorney-at-Law made a writtenrequest to the Registrar to issue to him " Mr. Sivalingam's " copyof the brief. Acting on this request, the Registry has handed overthe defendant's brief personally to Mr. Leelaratne who is describedin the note made in the Court of Appeal record as u the Attorney-at-Law attending to the appeal '.
On 24.11.87 D. Nanayakkara, Attomey-at-Law filed, a freshappointment as registered Attorney for the defendant-appellant inplace of Mr. Sivalingam for the reason that the latter had left SriLanka. On 08.01.91 (the first date of hearing) President's Counselappeared for the parties and the Court has made order that the casestand out, to be listed in due course. On 01.02.91 an applicationwas filed on behalf of the defendant-appellant (supported by hisaffidavit) seeking relief under s. 759 (2) for failure to hypothecate
Sri Lanka Law Reports
 2 Sri L.R.
security by bond. The explanation given for non compliance is thatthe appellant had paid the requisite sum to Mr. Sivalingam whichhe has deposited ; however, there is no bond hypothecating that sumin the record ; the appellant himself cannot remember whether hesigned a bond and was unable to verify the facts as Mr. Sivalingamhad left the Country during the ethnic disturbances in 1983.
The said application was finally argued on 29.03.93 after whichthe Court of Appeal by its judgment dated 02.04.93 refused to grantrelief and dismissed the appeal, upholding the preliminary objectionby Counsel for the plaintiff-respondent. The Court cited several ofits own decisions and said :
" all the cases show that relief can be granted if the lapse
is explained ”
The Court distinguished the decision in Mendis v. Jinadasa <3> onthe ground that relief was granted there as the omission was notdeliberate but due to an oversight.
The Court of Appeal makes no reference to the decision in Martinv. Suduhamy (Supra) (cited in the written submissions of the plaintiff-respondent) where this Court cited with approval the Lord Chancellor'sdicta in Sameen v. Abeywickrema (Supra) that relief may be grantedeven if no excuse is forthcoming, though the existence of an excuseis relevant.
Learned Counsel for the defendant-appellant submitted that theCourt of Appeal has refused relief arbitrarily, as a matter of courseand failed to apply the principles reiterated in Martin v. Suduhamy(Supra) ; and that in granting relief under s. 759 (2) the faultof the registered Attorney should not have been held against theappellant.
The learned President's Counsel for the plaintiff-respondent arguedthat the failure to hypothecate security was due to gross negligenceor carelessness of the registered Attorney and hence the Court ofAppeal had correctly exercised its discretion against the applicationfor relief, which was made 9 years after the lapse.
Nanayakkara v. Warnakulasuriya (Kulatunga, J.)
Negligence of the Attorney-at-Law (but not a mere mistake orinadvertence) will defeat an application for relief against ex-parteorders of the District Court entered by reason of default of parties,curable by showing “ reasonable grounds “ therefor. Relief will alsonot be granted for default in prosecuting an appeal attributable tosuch negligence curable by adducing " sufficient cause ”. Suchpreconditions for granting relief are expressly provided by Sections86 (2), 87 (3) and 771 of the Civil Procedure Code. Packiyanathanv. Singarajah . In an application for relief under s. 759 (2), the rulethat the negligence of the Attorney-at-Law is the negligence of theclient does not apply as in the cases of default curable under Sections86 (2), 87 (3), and 771. Such negligence may be relevant but it doesnot fetter the discretion of the Court to grant relief where it is justand fair to do so.
There is nothing in the facts of this case to show that the failureto hypothecate security was deliberate. Mr. Sivalingam appears tohave been negligent in failing to hypothecate security by bond or atleast to verify whether this had been done, before the record wasforwarded to the Court of Appeal. However, the available materialindicates that Mr. Sivalingam had disappeared in 1983 ; the fact thatother Attorneys-at-Law had been attending to his matters after 17.02.83supports the averment that he had left the country in or about 1983.As such, the person who could have best explained the lapse is notavailable, for reasons which are beyond the control of the defendant-appellant. I
I am of the opinion that the plaintiff-respondent has not beenmaterially prejudiced by the omission to hypothecate security and thatin all the circumstances relief should be granted under s. 759 (2),subject however, to an order for the payment of costs. The evidenceof the defendant-appellant shows that he is carrying on business andowns a shop in Nuwara Eliya. Accordingly, I allow the appeal, setaside the judgment of the Court of Appeal and direct that thedefendant-appellant be permitted to furnish a bond hypothecating thesum deposited and thereafter the appeal be heard on the merits,subject however to the condition that the defendant-appellant paysthe plaintiff-respondent a sum of Rs. 7500 (Rupees Seven ThousandFive Hundred) as costs on or before 15.01.94. In the event of noncompliance with this order as to payment of costs, the defendant-appellant's appeal to the Court of Appeal will stand dismissed.
Sri Lanka Law Reports
 2 Sri L.R.
Before concluding this judgment, I wish to make an observation.Even though the District Court appears to have no power to rejecta notice of appeal for failure to hypothecate security, it may perhapscall upon the appellant to rectify the defect where the non-complianceis observed at the stage when notice of appeal is given. If this weredone, it may help in reducing the volume of incidental proceedingsbefore the Court of Appeal resulting from the failure to hypothecatesecurity by bond.
G. P. S. DE SILVA C.J. – I agree.
WIJETUNGA J. – I agree.
NANAYAKKARA v. WARNAKULASURIYA