017-NLR-NLR-V-63-PECHCHIMUTTU-Petitioner-and-RASIAH-Respondent.pdf
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WEERASOORIYA, JPechchimultu v. Rasiah
1961Present : Weerasooriya, J., and L. B. de Silva, J.PECHCHIMUTTU, Petitioner, and R AST ATT; Respondent
C. 466—Application for relief under Section 756 (3) of the Civil Procedure
Code in D. C. Kalmunai 216 (L
Appeal—Order of abatement entered by District Court—Power of Supreme Court togrant relief—Supreme Court Appeals (Special Provisions) Act, No. 4 of 1960,ss. 2, 3 (1), 4 (J), 4 (2), 6—Civil Procedure Code, as. 756 (1) (2) (3), 759—Civil Appellate Rules, Rule 4—Interpretation Ordinance (Cap. 2), s. 6 (3).
By Section 5 of the Supreme Court Appeals (Special Provisions) Act, No. 4of 1960, which came into operation on the 14th October, 1960 :—
“ The preceding provisions of this Act shall apply, in addition to appealsto the Supreme Court on or after the date of commencement of this Act,to appeals presented before the date of commencement of this Act but notfinally disposed of by the Supreme Court
Held, that the Section does not apply to an appeal which a Court of firstinstance had already declared to have abated by an order validly made underthe law as it stood prior to the date on which the Act came into operation.
.AlPPLICATION for relief under Section 756 (3) of the Civil ProcedureCode.
S. Sharvananda, for defendant-petitioner.
C. Panganathan, for plaintiff-respondent.
Cur. adv. vult.
July 6, 1961. Weerasooriya, J.—
The action in respect of which this application is made was institutedby the plaintiff-respondent.against the defendant-petitioner for declarationof title to a certain allotment of land and for ejectment and damages.After trial the plaintiff obtained judgment as prayed for. The appealthat was filed by the defendant against the judgment was, on the 16thSeptember, 1960, held by the District Judge to have abated under section756 (2) of the Civil Procedure Code on the ground that the notice oftender of security, which is required to be given by an appellant undersection 756 (1), had not been duly given in that it was addressed to, andserved on, the plaintiff’s proctor.
Section 756 (3) of the Civil Procedure Code provides for relief beinggranted to an appellant in respect of any mistake, omission or defect
WEEBASOOBIYA, J.—Pechchimutlu v. Rasiah
Hi
in complying with the provisions of section 756, provided the respondenthas not been materially prejudiced. It was held, however, by a Benchof five Judges in de Silva v. Seenathumma 1 that an appellant’s failureto give to the respondent, in terms of section 756 (1), notice of tenderof security for the latter’s costs of appeal is not a matter in respect ofwhich relief can be given under section 756 (3). In the recent case ofAhamadulebbai v. Jvbariummah 2 a Bench of three Judges held that anotice of tender of security addressed to and served on the respondent’sproctor is not a notice given to the respondent as required by section756 (1). In view of these decisions Mr. Sharvananda who appearedfor the defendant-petitioner did not press the application in so far as itrelates to the obtaining of relief under section 756 (3).
Alternatively, relief is asked for in the application (as subsequentlyamended) under the Supreme Court Appeals (Special Provisions) Act,No. 4 of 1960, which came into operation on the 14th October, 1960,that is, after the appeal was held to have abated. In dealing with thispart of the application the following provisions of the Act call for notice :
“ 2. Where, in respect of any appeal to the Supreme Court underthe Civil Procedure Code, there is any error, omission or default incomplying with the provisions of that Code or any other written lawrelating to such appeal, the Court of first instance shall, notwithstandinganything to the contrary in that Code or such other written law,transmit to the Supreme Court the petition of appeal together withall the papers and proceedings of the case relevant to the decree ororder appealed against.”
‘ 4.(1) Subject to the provisions of sub-section (2), where an
appeal referred to in section 2.has been presented to the
Court of first instance … within the time prescribed by any
written law relating to such appeal, the Supreme Court shall notexercise the powers vested in such Court by any written law to rejector dismiss that appeal on the ground only of any error, omission ordefault on the part of the appellant in complying with the provisionsof any written law relating to such appeal, unless material prejudicehas been caused thereby to the respondent to such appeal.
(2) The Supreme Court shall, in the case of any appeal referred toin sub-section (1), which is not rejected or dismissed by such Courtdirect the appellant to comply with such directions as the Court maydeem necessary for the purpose of rectifying, supplying or makinggood any error, omission or default so referred to within such timeand upon such conditions as may be specified in such directions, andshall reject or dismiss that appeal if the appellant fails to complywith such directions.”
1 (1940) 41 N. L. R. 241.
a (1960) 62 N. L. R. 474.
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WEERASOORIYA, J.—Pechchimuttu v. Basiah
“ 5. The preceding provisions of this Act shall apply, in additionto appeals to the Supreme Court on or after the date of commencementof this Act, to appeals presented before the date of commencementof this Act but not finally disposed of by the Supreme Court.”
The effect of sections 2 and 4 is that if an appeal has been filed withintime, but any error, omission or default subsequently occurs in complyingwith the provisions of the Civil Procedure Code or other written law relatingto such appeal, the Supreme Court is required, without in the first instanceexercising the powers vested in such Court by any written law to rejector dismiss the appeal on the ground only of such error, omission or default(except in a case where material prejudice has been caused thereby to therespondent) to give the appellant an opportunity, on such conditions asmay be specified in any directions given in that behalf, of rectifying,supplying or making good such error, omission or default.
Under section 756 (2) of the Civil Procedure Code, where an appellanthas failed to give security and to make the deposit as provided in section756 (X) the appeal shall be held to have abated. Rule 4 of the CivilAppellate Rules, 1938, provides that an appeal shall be deemed to haveabated where the appellant fails to make application for typewrittencopies in accordance with the requirements of those rules, or to paywithin the prescribed time any additional fees due in respect of suchcopies. In my judgment in Fernando v. Samaranayake1 I expressed theopinion that although the abatement of an appeal is brought about byoperation of law, the Court should, enter a formal order of abatement,or the equivalent of it. Where an appeal which comes up before theSupreme Court is shown to have abated under section 756 (2) of theCivil Procedure Code or Rule 4 of the Civil Appellate Rules, 1938, theusual order that would be made is one rejecting or dismissing the appealon the ground that it has abated. Power is also given to the Court undersection 759 of the Civil Procedure Code to reject an appeal where thepetition of appeal has not been drawn up in the manner prescribed insection 758.
In respect of an appeal to the Supreme Court under the Civil ProcedureCode, I think that the reference in section 4 (1) of Act No. 4 of I960to the powers vested in the Courts “ by any written law to reject ordismiss ” that appeal should be construed as a reference to the powers ofthe Supreme Court under the provisions of sections 756 (2) and 759 of theCivil Procedure Code and Rule 4 of the Civil Appellate Rules, 1938,relating to the abatement of an appeal. No other written law vestingin the Supreme Court power to reject or dismiss such an appeal on theground mentioned in section 4 (1) was brought to our notice. In sofar as the provisions referred to are to be regarded as imperative, theyw ould appear to have been impliedly repealed by sections 2 and 4 ofAct No. 4 of 1960. If this view is correct—and no argument to the
1 (I960) 62 N. L. R. 397.
WEEBASOOBtTA, J.—JPechchimttUti v. Itaaiah
113
contrary was addressed to ns by counsel on either side—the questionthat arises is, to what extent, if any, the order of abatement of the 16thSeptember, 1960, which it is conceded, was rightly made under section756 (2) of the Civil Procedure Code, is affected by sections 2 and 4 ofAct No. 4 of 1960, read with section 5 thereof.
Section 6 (3) of the Interpretation Ordinance (Cap. 2), in so far as ismaterial to the question under consideration, is in the following terms :
“ Whenever any written law repeals either in whole or part a formerwritten law, such repeal shall not, in the absence of any express provisionto that effect, affect or be deemed to have affected—
the past operation of anything duly done or suffered under the
repealed written law ;
…
any action, proceeding or thing pending or incompleted when
the repealing written law comes into operation, but everysuch action, proceeding or thing may be carried on andcompleted as if there had been no such repeal
That sections 2 and 4 of Act No. 4 of 1960 apply to appeals filed on orafter the date on which the Act came into operation is, of course, undeniable.By virtue of section 6 (3) (c) of the Interpretation Ordinance, sections 2and 4 of Act No. 4 of 1960 would not apply to appeals which were pendingat such date unless there is express provision making them applicable.Section 5 of Act No. 4 of 1960 provides, however, that sections 2 and 4shall apply as well to appeals presented before that date but ** not finallydisposed of by the Supreme Court In my opinion, the expression“ not finally disposed of by the Supreme Court ” refers to appeals whichwere pending at the date when Act No. 4 of 1960 came into operation,and not to appeals which had already been disposed of as a result of aprevious valid order of abatement. In other words, section 5 is an expressprovision making sections 2 and 4 applicable to pending appeals, whereas,in the absence of it, all such appeals would, in terms of section 6 (3) (c)of the Interpretation Ordinance be carried on and completed as if therehad been no repeal of the existing law by sections 2 and 4 of Act No. 4of 1960.
Mr. Sharvananda contended, however, that in construing the expression“ not finally disposed of by the Supreme Court ” emphasis should belaid on the words “ by the Supreme Court ”, and that since in the presentcase the order abating the appeal was made by the District Court, theappeal is one which has not yet been finally disposed of by the SupremeCourt and, therefore, section o applies to it. He was constrained toconcede that on such a literal construction, a Court of first instance wouldbe obliged, in terms of section 2, read with section 5, of Act No. 4 of 1960,to transmit to the Supreme Court the record of every case in whichan appeal which was filed was declared to have abated, however remote the
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WEERASOORIYA, J.—Pechehimuttu v. Rasiah
point of time at "which such declaration had been made ; and similaraction would have to he taken by the “ appropriate authority ” referredto in section 3 (1). On the same construction, where a Court of firstinstance, acting in purported compliance with section 2 read with section5, transmits to the Supreme Court the record of a case in which an orderof abatement has already been validly entered by the Court of first -instance, the question that arises is, what action may be taken by theSupreme Court in regard to such appeal. The powers of the Supreme Courtin such a case are limited to the powers conferred on it by section 4.Section 4 confers no express power on the Supreme Court to set asidean order of abatement of an appeal which has been validly made by aCourt of first instance. No such additional power is expressly conferredby section 5 and unless such a power is to be implied, it would seem thatthe transmission of the record to the Supreme Court in such a case is afutile proceeding.
I do not think, however, that such an implied power can be admittedin view of the provisions of section 6 (3) of the Interpretation Ordinance.Paragraph (a) of section 6 (3) specifically refers to “ the past operation ofanything duly done or suffered under the repealed written law ”. Aspointed out by Gratiaen, J., in Akilandanayaki v. Sothinagaratnam1,section 6 (3) “ is an adaptation of section 38 of the Interpretation Act,1889, of England except that our legislature has designedly introduced(by substituting the words ‘ in the absence of aDy express provision tothe contrary’ for the words ‘unless a contrary intention appears’ of theEnglish model) an even stronger presumption against ex post facto legis-lation.”
A statute is not to be construed so as to have a greater retrospectiveoperation than its language renders necessary—per Lindley, "L.J., inLauri v. Renad 2. Even in construing a section which is to a certain extentretrospective, this maxim ought to be borne in mind as applicable when-ever the line is reached at which the words of the section cease to be plain—Maxwell on Interpretation of Statutes (10th edition) 214.
I hold that section 5 of Act No. 4 of 1960 does not apply to an appealwhich a Court of first instance had already declared to have abated byan order validly made under the law as it stood prior to the date onwhich the Act came into operation.
The application is dismissed with costs.
Li. B. de Silva, J.—I agree.
Application dismissed.
1 (1952) 53 N. L. R. 385.
*(1892) 3 Gh. 402 at 421.