Sri Lanka Law Reports
(2005) 1 Sri L. R.
FERNANDO AND OTHERSCOURT OF APPEALWIMAUCHANDRAJ.
A. L. A. 127/2004
C. NEGOMBO 5828/LJULY 27, 2001
Civil Procedure Code – Section 754(4), 757(1), 767(1) – Leave to appeal -Computation of the 14 day period – Identical to the computation of 14 days forNotice of appeal.
On the preliminary objection raised that, the application is out of time.
The impugned order was made on 15.03.2004. Leave to appealapplication was filed on 01.04.2004. These two days should beexcluded. All Sundays namely 21st, and 29th must also be excluded,then the number of days between 15.03.2004 and 01.04.2004 are exactly14 days – Section 757(1).
Computation of time under Section 754(4) for Notice of Appeal – isidentical to the computation of 14 days under Section 757(1).
Cases referred to :
Charlet Nona vs. Babun Singho – 2000 – 3 Sri LR 149(SC)
Selenchina vs. Mohamed Marikkar and others – 2000 3 Sri LR 100(SC)
S. F. A. Cooray for Defendant PetitionersLakshman Perera for Plaintiff Respondent
December 14, 2004WIMALACHANDRA J.
This is an application for leave to appeal from the orders (altogether sixorders) made by the District Judge of Negombo on 15.03.2004.
Siriwardena vs Fernando and others (Wimatachandra J.)
When the matter was taken up for inquiry before this Court the learned- Counsel for the plaintiff-respondent raised a preliminary objection that thedefendant-petitioner has not filed the notice of appeal within a period of 14days from the date when the order appealed from was pronounced, asspecified in Section 767(1) of the Civil Procedure Code. Section 757(1)provides that an application for leave to appeal shall be presented to theCourt of Appeal with a period of 14 days from the date when the orderappealed against was pronounced, exclusive of the day of that date itselfand the day on which the petition is presented and of Sundays and publicholidays.
Therefore it is very clear that in terms of Section 757(1) of the CivilProcedure Code the date of filing the notice of appeal and the date onwhich the order appealed against is pronounced, should be excluded inthe computation of the 14 day period.
In the instant case the date on which the impugned orders werepronounced by the District Judge was 15.03.2004. The leave to appealapplication was filed on 01.04. 2004. According to Section 757(1) thesetwo days must be excluded. All Sundays namely, the 21 st and 29th mustalso be excluded. Then the number of days between 15.03.2004 and
are exactly 14 days, which is within the stipulated period interms of Section 757(1). It is to be noted that the computation of 14 daysunder Section 757(1) is identical to the Computation of 14 days underSection 754(4), which is in respect of notice of appeal against a judgment.
In the Supreme Court case of Charlet Nona vs. Babun Singho (1)Dheeraratne, J. considered a similar application with regard to thecomputation of time made under Section 754(4) of the Civil ProcedureCode in respect of a notice of appeal against a judgment. His Lordshipobserved :
“In terms of sub-section 754(4) of the Civil Procedure Code, the noticeof appeal shall be presented to the court of the first instance within aperiod of 14 days from the date when the order appealed from waspronounced, exclusive of that day itself and of the day when the petitionis presented, and Sundays and Public Holidays.
In this case the judgment was pronounced by the District Court on 7thMay, 1986. The 11th, 18th and 25th were Sundays, the 22nd, 23rd
Sri Lanka Law Reports
(2005) 1 Sri L. R.
and 24th were Public Holidays according to the official calendar of1986. The notice of appeal was filed on 28th which day too has to beexcluded from the computation of 14 days in terms of the CPC.Therefore the notice of appeal was in fact filed within the stipulated 14days.”
This position was affirmed by the Supreme Court in the Case ofSelenchina vs. Mohamed Marikkar and otherd1 2) 3. In this case as well theSupreme Court considered the computation of time under section 754(4)of the Civil Procedure Code which provides that the notice of appeal shallbe presented to the Court of first instance within a period of 14 days fromthe date when the decree or order appealed against is pronounced, exclusiveof the day of that date itself and of the day when the petition is presentedand of Sundays and Public Holidays. This provision is identical to Section757( 1) of the Civil Procedure Code, which stipulates the procedure in respectof an application for leave to appeal in terms of Section 757(1). His Lordship,the Chief Justice S. N. Silva J. made the following observations at page101, with regard to the computation of time under Section 754(4) of theCivil Procedure Code.
“In terms of the section, the days set out below have to be excludedin computing the period of 14 days in which the notice should bepresented.
1.The day the judgment from which the appeal is taken ispronounced;
2.Intervening Sundays and public holidays;
3.The day the notice of appeal is presented to the Court.
In this case the notice of appeal was presented on 20.10.1986. Ifthat day is excluded, the period of 14 days excluding the date ofjudgment pronounced (i.e. 30.09.1986) and intervening Sundaysand Public holidays would end on 17.10.86 which was a public holiday.The next day on which the notice should have been presented wasthe 18th, being a Saturday, on which the office of the Court wasclosed. The next day, the 19th was a Sunday which too had to beexcluded in terms of the section. In the circumstances, the noticefiled on 20.10.1986 was within the period of 14 days as provided forin Section 754(4) of the Civil Procedure Code.”.
Siriwardena and Others vs. John Keels Co. Limited
(Gamini Amaratunga, J)
In the circumstances the preliminary objection raised by theplaintiff-respondent that the application for leave to appeal is out of timehas no merit.
For the reasons stated above it is my considered view that the notice ofappeal was filed within the stipulated period of 14 days in terms of Section757(1) of the Civil Procedure Code. That is, the said application was filedwithin 14 days excluding the date of the order, date of filing and interveningSundays and Public Holidays. Accordingly the preliminary objection raisedby the plaintiff-respondent is overruled with costs fixed at Rs. 2,500.
Preliminary Objection over-ruled
SIRIWARDENA vs FERNANDO AND OTHERS