034-NLR-NLR-V-63-A.-S.-ABDUL-CARDER-Petitoner-and-I.-L.-M.-SHERIFF-Respondent.pdf
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Abdul- Coder v. Sheriff
1960 Present:K. D. de Silva, J., and T. S. Fernando, J.A. S. ABDUL CADER, Petitioner, and I. L. M. SHERIFF,
Respondent
S.C. 543—Application for Conditional leave to appeal to the Privy Council inS. C. 539 of 1957jD. C. Gampaha 797/4947
Privy Council—Application for conditional leave to appeal—Notice to opposite party—Meaning of “ opposite party ”—Invalidity of notice given by a Proctor withoutdue authority—Proof of notice sent by ordinary post—Appeals (Privy Council)Ordinance (Cap. 85), Schedule, Rule 2.
By Rule 2 of the Rules in the Schedule to the Appeals (Privy Council)Ordinance :—
“ Application to the Court for leave to appeal shall be made by petitionwithin thirty days from the date of the judgment to be appealed from,and the applicant shall, within fourteen days from the date of such judg-ment, give the opposite party notice of such intended application.”
T. 8. FERNANDO, J.—•AbduL Coder v. Sheriff .
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Held, that where the petitioner is a defendant in a partition action, ary oo-defendant who will- be prejudicially affected by the success of the proposedappeal is an “ opposite party ” within the meaning of Rule 2 and must thereforebe given notice of the intended application for leave to appeal.
Sobitha Unnanse v. PiyartUna Unnanse (60 IT. L. R. 189), doubted.
Held further, (i) that a notice of intended application given by a Proctor
when the proxy does not empower him to act for his olient for the purpose of
taking steps to appeal to the Privy Council and where there is no other authority
from his olient is an invalid notice.
•
(ii) that where a notice of intended application is .sent by ordinary post thebest proof of such despatch is by the production of a receipt from the Post Office.
-A.PPUCATION for conditional leave to appeal to the Privy Council.
M. T. M. Sivardeen, for the 19th defendant-appellant, petitioner.
B. Wikramanayake, Q.C., with M. Markhani, for the plaintiff-respondent and the 2nd, 3rd (3a), 11th and 12th defendants-respondents.
Cur. adv. vult.
October 21, 1960. T. S. Febnaitdo, J.—*
This application by the 19th defendant for conditional leave to appealto Her Majesty in Council is opposed by the plaintiff and the 2nd,3(a)rd, 11th and 12th defendants on the grounds specified below
On behalf of the plaintiff it is urged that notice of the intendedapplication required by Rule 2 of the Rules in the Scheduleto the Appeals (Privy Council) Ordinance (Cap. 85) to be givenwithin fourteen days of the judgment appealed from has beengiven by a proctor who had not at the time of doing so anyauthority from the 19th defendant to give such notice ;
and (2) on behalf of the 2nd, 3(a)rd, 11th and 12th defendants it isurged that there has been a total failure to give them noticeof the intended application.
In support of the first objection, the plaintiff has tendered the noticeserved on him by registered post together with the envelope in whichthis notice was enclosed. These show that the notice has been given byproctor J. F. Jayatilake who describes himself therein as proctor for the19th defendant-appellant. An examination of the only proxy grantedby the 19th defendant to Mr. Jayatilake does not show that any authoritywas granted thereby to the latter to act for the former in respect ofor in connection with an appeal to Her Majesty in Council from an orderof the Supreme Court. Mr. Sivardeen does not contend that the proxyin question grants the required authority, but relies on an averment ofhis client in an affidavit presented to, this Court nearly a year after the
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T. S. FERNANDO, J.—Abdul Coder v. Sheriff
date of the judgment sought to be appealed against that proctor Jaya-tilake had his client’s oral authority to send the notice of intendedapplication. It is significant that this averment is not supported by anaffidavit of proctor Jayatilake himself stating that he had such oralauthority. In the case of Kandaswa/my v. Kandavanam1, it has beenheld that a notice of intended application given by a proctor where theproxy did not empower him to act for his client for the purpose of takingsteps to appeal to the Privy Council and where there was no otherauthority from his client was an invalid notice. I am of opinion that thenotice upon which the plaintiff bases his objection is of no avail to thepetitioner.
Mr. Sivardeen, however, relies on an averment contained in thepetitioner’s affidavit dated 12th September 1960 according to which thepetitioner himself posted to the plaintiff by registered post a notice ofintended application “ identical in terms of the notice ” sent by proctorJayatilake. While the receipt of such a notice is not specifically deniedby the plaintiff, inasmuch as such a notice must have been signed not .by the petitioner but by proctor Jayatilake, I fail to see what differencethere can be between that notice and the one posted by proctor Jayatilake.In these circumstances the first objection has to be upheld.
In regard to the second objection, it is contended by the petitionerthat notice of intended application was sent. by ordinary post to thedefendants who have raised this objection, and that none of the postalpackets containing the notices was returned to the petitioner undeli-vered. I fail to see why the notices to these defendants should have beensent by ordinary post when the notices to the other parties were sent byregistered post. No receipt of any kind from a post office relating to theposting of notices by ordinary post is relied on by the petitioner althoughit is possible to obtain from a post office, on payment of a small fee,a receipt even in respect of letters or packets sent by ordinary post.The receipt of the notices has been specifically denied by the objectingdefendants, and I am unable to say that the petitioner has proved thatnotice was given to these defendants. I may add that even in respectof the notices alleged to have been sent to these defendants, the positionfor the petitioner is that the notices sent were signed by proctor Jayatilakewho, as I have pointed out above, has not been proved to have had anyauthoritj7 from the petitioner to send such notice.
Faced with the difficulty of establishing the giving of notice to theobjecting defendants, Mr. Sivardeen, reefing on the author^1- of SobithaXJnnanse v. Piyaralna Unnanse2 has contended that Rule 2 referred toabove does not require that notice of intended application be givento these defendants. In the case relied upon, Basnayake C.J., (Pulle J.agreeing) has held that in an application for conditional leave to appealto the Privy Council, the words “ opposite party ” in Rule 2 mean theparty on the side opposite to the applicant, and that therefore when the
(19561) 5S N. L. R. 413.
* (1957) C0 JV. L.-.R.189.
T. S'. FERNANDO, J.—Abdul Coder v. Sheriff
m
applicant is a defendant lie must give notice of his application to theplaintiff, but need not give such notice to a co-defendant although he isat issue with the co-defendant. The report does not disclose the natureof the action filed by the plaintiff in Sobitha TJnnanse v. Piyaraina Unnanse(supra). I find great difficulty in applying that decision to the casebefore us, the more so as it appears to be contrary to earlier decisionsof this Court on the same question.
Before referring to these earlier decisions, it is necessary to state thatthe application before us relates to a partition action in which the DistrictJudge had at the trial excluded from the .partition certain lots (lotsD, E, F and H) claimed by the 19th defendant. On appeal to the SupremeCourt, the order relating to the exclusion of these lots was reversed andthey were brought in as part of the corpus to be partitioned with theresult that, by the judgment sought to be appealed against, the 2nd, 3(a)rd,11th and 12th defendants were allotted shares in the entire land. It isclear that, if the 19th defendant is successful before Her Majesty inCouncil in obtaining exclusion of any one of the lots D, E, F and H, theinterests the objecting defendants have obtained by the judgment of theSupreme Court will be prejudicially affected.
" In Wijesinghe Hamine v. Ekanayake *, Howard, C.J., (Soertsz, J.agreeing) interpreting the expression “ opposite party ” in Rule 2 of theRules in the Schedule stated that the expression implies all the partiesin whose favour the judgment appealed from was given. This decisionwas followed in Nagalingam v. Thanabalasingham2 which went so faras to hold that notice of an intended application for leave to appealto the Privy Council must be given to a respondent even though no reliefis claimed against him. In the appeal to which the application before usrelates, as I have indicated above, the petitioner is seeking to obtainan order which will prejudicially affect, inter alia, the defendants whohave raised this second objection. No doubt the person making theapplication and those now objecting to it are all defendants, but I donot find it possible to agree that that’ circumstance has the effect ofpreventing the objecting defendants being the “ opposite party ” to the19th defendant, the petitioner. I have already stated that the natureof the action in the case of Sobitha Unnanse v. Piyaraina Unnanse (supra)cannot be gathered from the judgment, but the case out of which theapplication before us arises is a partition action in which in one sense everyparty is both a plaintiff and a defendant. That circumstance apart,having regard to the object or purpose of giving notice of intendedapplication to the opposite party which is merely to apprise him withina reasonable time of the fact that the litigation is not at an end—seeBalasubramaniam Pillai v. Valliappa Chettiar 3—the expression “ oppositeparty ” must mean the party or parties who would be prejudicially affectedby the success of the proposed appeal and would, therefore, naturally beopposed to the granting of the remedy or relief sought for by the proposedappellant. The meaning attached to this expression in Sobitha TJnnanse v.
(1940) 41 N. L. R. 415 at 418.3 (1949) 50 N. L. R 396..
{1938) 40 N. L. R. 90, 12 C. L. W. 59.
1
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The Queen v. Metias de Silva
Piyaratna Unnanse (supra) is capable of leading in certain cases to asituation whereby notice of intended application is required to be givento a party who is neither affected by nor interested in the grant of therelief prayed for by the applicant while such notice need not be givento a party who may be prejudicially affected. I do not consider thatwe should interpret this expression in a manner which could lead to theresult indicated above. It does not appear from the report that thecases I have cited here were brought to the notice of the learned Judgeswho decided the application in Sobitha TJnnanse v. Piyaratna Unnanse(supra), and, with great respect, I find myself unable to apply that decisionto the application before us. I would respectfully follow the reasoningthat commended itself to the Court in Wijesinghe Hamine v. Ekanayake(supra) and, inasmuch as I have held that the applicant has failed toprove that notice of intended application was given to the 2nd, 3(a)rd,11th and 12th defendants who are parties who would be prejudiciallyaffected by the success of the proposed appeal, this application for con-ditional leave must be refused with costs.
de Silva, J.—I agree.
Application refused.