MOHAMED MARIKAR AND OTHERS
SUPREME COURTS.N. SILVA. CJ.
PERERA, J. ANDWEERASEKERA, J.
SC APPEAL 71/99SPL.LA NO. 52/98CA NO. 480/86 (F)
DC KEGALLE NO. 18225 (P)
24th JULY, 2000
CiviL Procedure Code – Notice of appeal – Computation of time – Section754(4) of the Code.
Section 754(4) of the Civil Procedure Code provides that the notice ofappeal shall be presented to the court of first instance within a period offourteen days from the date when the decree or order appealed againstwas pronounced, exclusive of the day of that date itself and of the daywhen the petition is presented and of Sundays and Public Holidays.
Per S.N. Silva, CJ.
“. . . the notice of appeal was presented on 20. 10. 1986. If that dayis excluded, the period of 14 days excluding the date of judgmentpronounced (i. e. 30. 09. 1986) and intervening Sundays and publicholidays would end on 17. 10. 86 which was a public holiday. Thenext day on which the notice should have been presented was the18th, being a Saturday, on which the office of the court was closed.The next day, the 19th was a Sunday which too had to be excluded interms of the section. In the circumstances the notice filed on 20. 10.1986 was within the period of 14 days as provided for in section754(4) of the Civil Procedure Code”
Case referred to :
1. Charlet Nona v. Babun Singho SC Appeal 81 /98SC Minutes of 08. 09. 98
APPEAL from the judgment of the Court of Appeal.
SCSelenchina v. Mohamed Marikar and Others (S.N. Silva, CJ.)
Rohan Sahabandu with Athula Perera, Ms. Menaka Haputhanthri andMs. Subhani Keerthtratne for 5U’ defendant – appellant.
D.M.C. Dissanayake for 2n<1 Plaintiff – Respondent.
Sathya Hettige, DSG with N. Pulle, SC for A.G. as Amicus.
Cur. adv. vult.
Editor’s Note :
Contra Sri Lanka State Trading (Consolidated Exports) Corporation v.Dharmadasa (1987) 2 Sri LR 235
July 24, 2000.
S.N. SILVA, C.J.This is an appeal from the judgment dated 03. 03. 1998.By that judgment, the Court of Appeal has rejected the appealof the 5th defendant – appellant from the judgment of theDistrict Court of Kegalle dated 30. 09. 1986.
The Court of Appeal rejected the notice of appeal on thebasis that it has not been filed within the period specified insection 754(4) of the Civil Procedure Code which reads thus :
“The notice of appeal shall be presented to the Court offirst instance for this purpose by the party appellant or hisregistered attorney within a period of fourteen days fromthe date when the decree or order appealed against waspronounced, exclusive of the day of that date itself and of theday when the petition is presented and of Sundays and publicholidays …"
In terms of the section, the days set out below have to beexcluded in computing the period of 14 days in which thenotice should be presented.
1. the day the judgment from which the appeal istaken is pronounced.
intervening Sundays and public holidays.
Sri Lanka Law Reports
1200013 Sri L.R.
3. the day the notice of appeal is presented to theCourt.
In this case the notice of appeal was presented on 20. 10.1986. If that day is excluded, the period of 14 days excludingthe date of judgment pronounced (i. e. 30. 09. 1986) andintervening Sundays and Public holidays would end on 17. 10.86 which was a public holiday. The next day on which a thenotice should have been presented was the 18th, being aSaturday, on which the office of the Court was closed. The nextday the 19th was a Sunday which too had to be excluded interms of the section. In the circumstances, the notice filed on20. 10. 1986 was within a period of 14 days as provided for insection 754(4) of the Civil Procedure Code.
The Court of Appeal appears to have based its decision onthe premise that in view of the word “within” appearing insection 754(4) the date on which the notice of appeal is filed inCourt should be taken into account in computing the periodof 14 days. Such an interpretation may have been tenable ifthere was no specific provision to the contrary in section754(4). In the face of the unambiguous provision in section754(4) that the day the notice is presented should be excludedfrom the period of 14 days it would not be open to interpret theword “within” appearing in the provision to include such datein the computation of the period. This court has decided theissue on the same lines in the case of Charlet Nona v. BaburtSinghd11.
The appeal is accordingly allowed and we set aside thejudgment dated 03. 03. 1998 of the Court of Appeal and referthe matter to the Court of Appeal to hear and determine theappeal. We direct that the appeal be given priority since it hasbeen filed in 1986. We make no order as to costs.
PERERA, J.- I agree.
WEERASEKERA, J. 1 agree.
SELENCHINA v. MOHAMED MARIKAR AND OTHERS