1956 Present : H. N. G. Fernando, J., and T. S. Fernando, J.
A. P. FERNANDO, Appellant, and G. T. ANTHONY,Respondent,S. C. 74 — D. C. Gampaha, 4,165 jL
Appeal—Abatement—Application for typewritten copies—Failure to furnish thenecessary fees along with it—Fatal irregularity—Civil Appellate Pules, 193S,Pules 2 (l) and 4—Payment into Court Order, 1039, Clause 1 (->). .
Tho provision, of Rulo 2 (1) of the Civil Appellate Rules, 1938, that an appli-cation for typewritten copies “ shall bo accompanied by tho fees prescribedin tho schedulo hereto ” is an imperative, and not merely a directory, provisionof law. Failure to comply with it is fatal to tho recoption of tho appeal.
Under Clause 1 (5) of tho Pajmcnt into Court Order, 1939, tho dato of thoreceipt given by ah authorised Treasury officer is'deemed to bo tho date of apayment into Court of any money required by any written law to be paid inconnection with any action or proceeding.
jAlPPEAL from a judgment of the District Court, Gampaha.
.4. H. C. de Silva, Q.C., with N. U. Wcerasekera, for the defendant-appellant.
Waller Jayawardeac, with 31. Sanmuyanalhaa, for the plaintiff-respondent.
Gar. adv. vult.
November 20, 1956. T. S. Ferxaxdo, J.—
A preliminary objection to the hearing of this appeal has been raisedon the ground that the appeal has abated in terms of rule 4 of the CivilAppellate Rules, 193S, on the appellant failing to make application fortypewritten copies of the record in accordance with the requirements ofrule 2 (1) of the same Rules.
Rule 2 (1) requires that an application for typewritten copies “shallbo accompanied by the fees prescribed in the schedule hereto ”. Theapplication was made on 27th January 1956 at the time the petition ofappeal was itself filed in court, but the fees prescribed were paid to theTreasury officer specially stationed at Gampaha only on 2nd March1956. There was therefore a failure to comply with the requirementsof rule 2 (1), and the question that now arises is whether this provisionof law embodied in the rule is an imperative or mandatory provisionor one which is merely directory.
In dealing with the construction of enabling Acts of Parliament, it isstated in Craies on Statute Law, oth ed., at page 242, that
“ It being, then, well settled that the neglect of the requirementsof an Act which prescribes how something is to he done will invalidatethe thing being done, if the enactment is absolute, but not if it is merelydirectory, we have now to consider whether there is any general ruleas to when an enactment is to be considered absolute and when merelydirectory ”.
After adverting to a dictum of Grove J. to which I shall now refer, it isfurther stated that, except as to time, there is no general rule as to whenenabling Acts ar e absolute and when directory. In the case of Barker v.Palmer Grove J., in interpreting a certain rule of the County CourtRules, 1S75, which required a plaintiff to deliver the summons to thebailiff within a stated number of days, said that “ in construing Acts ofParliament provisions which appear on the face of them obligatory, caimot,without strong reasons given, be held directory. The rule is that pro-visions with respect to time are always obligatory, unless a power ofextending the time is given to the Court ”. It is of interest in thisconnection to observe that, whereas in the Civil Appellate Rules of 1913there was express provision (in rule 5) enabling the Court, where itappeared to the Court to be reasonable, to allow an extension of timofor an application to be made for typewritten copies, in tho present CivilAppellate Rules which superseded tho 1913 Rules the provision relatingto extension of time has been omitted. There is therefore a further
R. (1881) 8 Q. B. D. 10.
indication of the intention of the framers of the Rules as to the conse-quences of the failure to make the application in accordance with theRules. Moreover, it may be mentioned that Pulle J. has already held inthe course of the decision in Abdul Coder v. Sillinisa1 that that part ofthe rule 2 (1) which states tlvat tho application shall be accompaniedby the fees prescribed in tho schedule is clearly fundamental. I am inrespectful agreement with that view and would hold that rule 2 (1)embodies an imperative or mandatory provision of the law and that thofailure to comply with that provision is fatal to the reception of thisappeal.
Learned Counsel for the appellant urged that it is not now possibleto comply with the provisions of rule 2 as the Secretary of the DistrictCourt of Gampaha does not accept pa3*ment in cash and that administra-tively payment has to be made to a Treasury officer specially stationed atGampaha. It appears to have been assumed in the course of an argumentthat took place in the District Court of Gampaha that, whereas tho rulerequires the appellant to make jjaj-mcnt for the copies in cash to theSecretary of the District Court, an administrative practice exists in theDistrict Court whereby everybody acts contrary to rule 2 by makingpayment to the Treasury officer referred to above. In making thisassumption, tho learned District Judge appears to have lost sight ofThe Payment into Court Order, 1939, made under section 49 of theCourts Ordinance and published in Gazelle 8,526 of 13th October, 1939.An examination of this Order will show that the practice referred to bythe learned District Judge as merely an administrative practice is entirelylegal, and indeed the only procedure now authorised by law for paymentinto Court of money required by any written law to be paid in connectionwith any action or proceeding. By clause 1 (5) of this Order, the dateof the receipt given by the authorised Treasury officer is to be deemedto be the date of jiayment into Court.
Learned Counsel for the appellant also invited us to follow the courseadopted by the learned judges who decided the case of Abdul Coder v.Sillinisa (supra) and hear by way of revision argument on the merits ofthe questions raised by the appellant in iris petition of appeal. It shouldbe remembered that in that case the Court heard argument by way ofrevision purely as a matter of indulgence, Pulle J. observing that theCourt had the satisfaction of knowing that it has interfered (in revision)with the judgment of the District Judge substantially on a point of lawonly. It is quite unnecessary to go into the question as to when thisCourt will exercise its powers of revision. Learned Counsel concededthat there is no substantial question of law which he seeks to raise in thisCourt; on the other hand, he hopes to convince us that a review of thefacts should result in a reversal of the decision reached by the learnedDistrict Judge. I do not consider that there is any good ground fordealing with the case in revision.
The preliminary objection is upheld and the appeal is dismissed withcosts.
H. N. G. Ferxando, J.—I agree.
(135J) 52 Ft. L. R. 536 at 546.
A. P. FERNANDO, Appellant, and C. T. ANTHONY, Respondent
1956 Present : H. N. G. Fernando, J., and T. S. Fernando, J.