156-NLR-NLR-V-39-MOHAMED-BHAI-v.-DIYAIVA-et-al.pdf
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Mohamed Bhai v. Diyaiva.
Present: De Kretser J.
MOHAMED BHAI v. DIYAIVA et al.
179—C. R. Kandy, 21,757.
Courts of Requests—Leave to appeal on the facts—Application granted after timeby the Supreme Court—Per Incuriam—Appeal rejected.
In a Court of Requests' case application to the Supreme Court for leaveto appeal on the facts must be filed within seven days of the Commis-sioner's refusal. Sundays are not excluded in reckoning the period.
Where an application was made out of time and leave granted per in-curiam, the Supreme Court is not precluded from rejecting the appeal.
565
De KRETSER J.—Mohamed Bhai v. Diyaiva.y^yPEAL from a judgment of the Court of Requests, Kandy.
N. Nadar ajah, for plaintiff, appellant.
H. A. Wijeymanne, for second defendant, respondent.
Cur. adv. vult.
June 27, 1938. 'De Kretser J.—
Judgment in this case was delivered on June 30, 1937. An applicationfor leave to. appeal was refused on the same day.
On July 8 an application to this Court for leave to appeal was filed.The journal entry describes it as a petition of appeal against the Com-missioner’s refusal of leave to appeal.
This Court allowed the application. The appeal came on for hearingin due course.
Counsel for respondent then took the objection that the appeal was notin order as leave to appeal had been granted without jurisdiction inasmuchas the application had not been filed within seven days of the Commis-sioner’s refusal. He relied upon section 7 of the Interpretation Ordinancelor the computation of the period of time and according to that sectionSundays are not excluded in the reckoning.
Appellant’s Counsel conceded that the application was out of time andhe contended that this Court having granted leave to appeal could notnow reject the appeal and that the period had possibly been reckoned inaccordance with a prevailing practice and that this ought not to bedisturbed. He cited Boyagoda v. Mendis'.
With regard to the first objection, it is in my opinion not entitled tosucceed. The first order was obtained ex parte and the respondent hadthen no opportunity of objecting. This Court has repeatedly held thatan application to set aside an ex parte order should be made to the Courtmaking the order and that such a Court had power to set aside such anorder.
The cases apply to orders made by Courts of first instance but I do notsee why the principle they embody should not be extended to orders madeby this Court.
There is another way of looking at the matter. The appellant had noright of appeal except in terms of Ordinance No. 12 of 1895 and this Courthad jurisdiction to grant leave to appeal only when the case fell within theprovisions of that Ordinance. This Court ought therefore to have powerto vacate an order made' without jurisdiction and cannot extend the rightof one party at the expense of the other. There can be no doubt that thisCourt would not have granted leave had it known that the applicationwas out of time,- and that its order was made per incuriam.
. The objection to the constitution of the appeal is in my opinion sound.There remains the question to whether a cursus curiae exists to the con-trary and whether such cursus should be allowed to affect thequestion.
1 SO -V. L. R. 321.
566Db KRETSER J.—Mohamed. Bhai v. Diyaiva.
By letter dated May 26, 1938, the Registrar addressed the differentCourts in the Island, and 26 out of the 33 had replied by June 20. Thedelay in giving judgment was due to these replies being awaited. Noreplies were received from Galle, Matara, Kalutara, Panadure, NuwaraJSliya, Mannar, and Mullaittivu, and 1 do not propose to wait for them.Badulla reported that no application for leave to appeal had ever beenmade in that Court, and Kandy, Ratnapura and Point Pedro includeSundays and follow the Interpretation Ordinance.
There is therefore no uniformity in the prevailing practice nor anyevidence as to the length of time during which the existing practice hasprevailed. The circumstance's in this case are quite different from thosein Boyagoda v. Mendis (supra).
This case comes from Kandy and in that Court, the practice is to includeSundays. The application to this Court for leave to appeal was thereforeout of time.“
The erroneous practice in some Courts is due either to confusion of suchan application with regular appeals or to the mistaken notion that it is initself an appeal.
Originally an appeal lay from every final order of a Court of Requestsbut in 1895 appeals in actions for debt, damage or demand wereprohibited except on leave allowed. Having before it the provisions withregard to the computation of time in filing regular appeals the Legislaturemade no similar provision regarding applications for leave to appeal andthere may have beep good reason for its not doing so.
Section 13 of Ordinance No. 12 of 1895 did not specify within what timeapplications should be made to the Commissioner for leave to appeal butit ailowed an appeal with such leave, and clearly the appeal so allowed hadto be filed within seven days of the judgment, in terms of section 756 ofthe Code. This point was decided in Arnolis v. Lewishamy 1 and Goone-wardene v. Orr". By implication therefore an application to the Com-missioner would have to be made within the appealable period. Now,such an application might be made even on the last day of the appealableperiod and the unsuccessful applicant was given a further period of timewithin which to apply to this Court for leave to appeal. The decreetherefore remained liable to be suspended for this period and it is scarcelylikely that the Legislature, which contemplated curtailment of the rightof appeal, intended to extend the period of seven days beyond its naturallimit.
Whatever may have been its intention, that intention can be gatheredonly from the provisions in the Ordinance and there is no power in thisCourt to extend the period.
The objection is upheld and the appeal dismissed with costs.
Appeal dismissed.
_ > 2 N.L.R. 222.
* 2 A.C. R. 3.5.