RANJITH OE SILVAvsDAYANANDA AND OTHERS305
COURT OF APPEALWIMALACHANDRA, J.
CALA 331/2003 (L G)
DC BALAPITIYA NO. 1794/SPL.
FEBRUARY 17TH, 2005
Civil Procedure Code, section 16—Non compliance — Is it fatal ?— Failure ofplaintiff to take steps initially — Court ordering plaintiff to publish a notice of theinstitution of the action — Nunc pro tunc — Actus curiae neminem gravabit —Permissibility
The plaintiff respondents instituted action seeking to invalidate the specialgeneral meeting of the CNAPT (Ambalagoda Branch) held on 28.01.1995 andto invalidate all decisions taken at the said meeting. In the course of the pro-ceedings the 2nd to 7th defendants made an application to be added asdefendants and moved court that a notice of the institution of the action bepublished under section 16. In the plaint the plaintiff has made only the Secre-tary of CNAPT as the defendant.
The trial judge made order to add the said defendants and permitted theplaintiff to publish a notice of the institution of the action to all parties con-cerned in the newspaper under section 16.
The 1A defendant-petitioner contends that non compliance with section 16is a fatal irregularity, and that there was no averment in the prayer of the plaintseeking permission of court to take steps under section 16.
The purpose of giving notice under section 16 by publishing newspa-per advertisements is to give notice to those who are represented ashaving a common interest.
In the instant case the trial judge upheld the rule of tunc pro tune per-mitting the plaintiff to take steps to publish the required notice in termsof section 16. This rule is based on the “maxim-actus curiae neminemgravabit.
the trial judge was convinced that the interests of justice would beserved by the correct procedure being followed and averting a fatalirregularity which would have resulted, had the case proceeded to trialwithout complying with the provisions of section 16.
Sri Lanka Law Reports
(2006) 1 Sri L R.
One of the conditions necessary to bring an action under section 16 isto obtain permission of court, even in the absence of a formal ordergranting permission, direction to publish notice is sufficient to inferpermission being granted.
Cases referred to:
Ranasinghe vs Abeydeera (1997) 3 Sri LR 401 (distinguished)
Caroline Soysa vs Lady Ratwatte 45 NLR 553
J. Ladduwahetty for substituted 1A defendant-petitioner.
M. G. Dissanayake for plaintiff respondents.
October 12,2005WIMALACHANDRA, J.
The substituted 1A defendant-petitioner (1A defendant) filed this appli-cation for leave to appeal from the order of the learned District Judge ofBalapitiya dated 26.08.2003. Leave to appeal was granted on 23.07.2004.
Briefly, the facts as set out in the petition are as follows:
The plaintiff-respondents (plaintiffs) instituted action in the District Courtof Balapitiya seeking inter alia a declaration to invalidate the Special Gen-eral Meeting of the Ceylon National Association for the Prevention of Tu-berculosis-Ambalangoda Branch (CNAPT – Ambalangoda Branch) heldon 28.01.1995 and to invalidate all decisions taken at the said meeting. Inhis plaint, the plaintiff named only the Secretary of the said Associationas the defendant (who is now deceased and the 1A defendant has beensubstituted in the place of the deceased Secretary) In the course of theproceedings, the 2nd to 7th defendants made an application to be addedas defendants and also moved court that a notice of the institution of theaction be published in the newspapers under section 16 of the Civil Proce-dure Code for the benefit of all persons so interested. The learned DistrictJudge made order adding them as the 2nd to 7th defendants and also heldin the same order that the plaintiff who had failed to make an applicationfor the permission of the court to publish a notice of the institution of theaction to all parties concerned could now do so by publishing a publicadvertisement in the newspapers. The learned judge made this order basedon the rule of nunc pro tunc. It is against this order this application forleave to appeal has been filed.
It is the position of the 1A defendant that non compliance with theprovisions of section 16 of the Civil Procedure Code by the plaintiff is afatal irregularity. The learned counsel for the petitioner contended, in his
CA Ranjith de Silva vs Dayananda and Others (L. K. Wimalachandra, J.) 307
written submissions, that the learned Judge had erred, by observing thatthe plaintiff had failed to take steps under section 16 of the Civil ProcedureCode and then holding that the plaintiff can now publish a notice of theinstitution of the action in the newspapers by applying the rule of nunc protunc and ordering the plaintiff to so publish.
The learned counsel for the 1A defendant submitted that the learnedDistrict Judge had failed to consider that the plaintiff had not even prayedfor an order seeking the permission of Court to take steps under section16 of the Civil Procedure Code.
The learned counsel strongly urged that as decided by Weerasekera,J. in the case of Ranasinghe vs. Abeydeeraf1> it is imperative for the plain-tiff to have issued notice as contemplated by section 16 of the Civil Proce-dure Code and that the failure to comply with section 16 is a fatal irregular-ity and hence the District Judge had acted in excess of jurisdiction inordering the plaintiffs to take steps under section 16 of the Civil ProcedureCode when there is no averment or application in the prayer of the plaintseeking the permission of Court to take steps under such section.
The facts in the case of Ranasinghe vs. Abeydeera (Supra) are differentfrom the facts in the present case before us. Unlike the case before usthat case had proceeded to trial and judgment and the decree had beenentered. The defendants appealed against the judgment and in the appealtook up the position that the plaintiff being an unincorporated body, sec-tion 16 of he Civil Procedure Code applies and that there had been noncompliance with section 16 of the Civil Procedure Code. The Court ofAppeal held that parties seeking to sue an unincorporated body shouldget permission of Court in terms of section 16 and the Appeal Court di-rected that the case to be heard de novo after application has been madeafresh in terms of section 16 of the Civil Procedure Code.
In the case of Caroline Soysa vs. Lady Ratwattet2) it was held inter aliathat where permission is given by Court under section 16 of the Civil Pro-cedure Code to a party to sue on behalf of a person having a commoninterest in bringing the action, the section imposes on the Court, aftergiving such permission, the duty of giving notice of the institution of theaction to all persons on behalf of whom the action is brought.
In the circumstances, it is the Court that has to order the plaintiff to giverequired notice and also in what manner it should be published in thenews papers. Accordingly, the complaint of the appellant that the plaintiffhas failed to effect the publication has no merit. It is only after the Courtdirected the plaintiff to give required notice in newspapers and thereafter ifthe plaintiff fails to do so, it is only then the failure to comply with such anorder amounts to a fatal irregularity.
Sri Lanka Law Reports
(2006) 1 Sri L R.
In the instant case under consideration, the trial has not commencedand the case is still at the stage of pleadings. In the meantime, severalintervenients have sought to be added as parties to the action under sec-tion 16 of the Civil Procedure Code and also made an application seekingan order from Court to permit the plaintiff to give required notice undersection 16 by public advertisement. The learned District Judge after aninquiry into the application made by the intervenient-petitioners made or-der on 22.04.1999 adding them as added defendants and also made orderpermitting the plaintiff to comply with section 16 of the Civil ProcedureCode by publishing a notice in the newspaper. The learned Judge wouldhave been convinced that the interests of justice would be served by thecorrect procedure being followed and averting a fatal irregularity whichwould have resulted had the case proceeded to trial without complyingwith the provisions of section 16 of the Civil Procedure Code. It is only afterthe Court had directed the plaintiff to give required notice under section 16of the Civil Procedure Code by publishing newspaper advertisements andthe plaintiff fails to comply with such an order, then at that instance itamounts to a fatal irregularity.
The purpose of giving notice under section 16 of the Civil ProcedureCode by publishing newspaper advertisements is to give notice to thosewho are represented as having common interest. In the instant case thelearned Judge applied the rule of nunc pro tunc permitting the plaintiff totake steps to publish the required notice in terms of section 16 of the CivilProcedure Code. The rule nunc pro tunc is based on the maxim actuscuriae neminem gravabit. That is an “act of the Court shall prejudice noman” Broom’s Legal Maxims 10th edition at page 73 states thus :
“This maxim is founded upon justice and good sense ;and affords a safe and certain guide for the administra-tion of the law.”
One of the conditions necessary to bring an action under section 16 ofthe Civil Procedure Code is to obtain permission of Court. Even in theabsence of a formal order granting permission, direction to publish noticeis sufficient to infer permission being granted.
It appears to me that the procedure adopted by the learned Judge isappropriate as the averments in the plaint disclose sufficient material togrant permission of Court to bring an action under section 16 of the CivilProcedure Code and that the interest of justice would be served by thecorrect procedure being followed at the initial stages before proceeding tothe trial stage.
For these reasons I do not propose to interfere with the order of thelearned District Judge of Balapitiya dated 26.08.2003. The appeal is dis-missed with costs fixed at Rs. 5000.
RANJITH DE SILVA vs. DAYANANDA AND OTHERS