A. W. M. SAMEEN, Appellant, and P. V. S. ABEYEWICKREMA and others, Respondents

102-NLR-NLR-V-64-A.-W.-M.-SAMEEN-Appellant-and-P.-V.-S.-ABEYEWICKREMA-and-others-Respondents.pdf


Sameen v. Abeyewickrema
653
[In the Privy Council]
Present: The Lord Chancellor, Lord Evershed, Lord Jenkins,
Lord Guest, and Sir Malcolm Hilbery
A. W. M. SAMEEN, Appellant, and P. V. S. ABEYEWICKREMA
and others, Respondents
Privy Council Appeal No. 48 op 1961
S. C. 117—D. C. Colombo, 7069/LAppeal—Receipt of petition of appeal by Court—Duty of appellant to give notice“ forthwith ” of tendering security for respondent's costs of appeal—Meaningof word “ forthwith ”—Mode of service of notice—Scope of power of SupremeCourt to grant relief under sub-section 3 of section 756 of Civil Procedure Code—Civil Procedure Code, as. 356, 754, 755, 756 (1), 756 (3), 758, 759.
Section 756 of the Civil Procedure Code reads as follows :—
“ (1) When a petition of appeal has been received by the court of firstinstance under section 754, the petitioner shall forthwith give notice to therespondent that he will on a day to be specified in such notice ..
tender security as hereinafter directed for the respondent’s costs of appoal,and will deposit a sufficient sura of money to covor the expenses of servingnotice of appeal on the respondent. And on such day tho respondent shall beheard to show causo if any against such security being acceptod. And inthe event of such security being accepted and also the deposit mado withinsuch period, then tho court shall immediately issue notice of tho appoaltogether with a copy of the petition of appeal, to be furnished to the court-for that purpose by the appellant, to the Fiscal for service on the respondentwho is named by the appellant in his petition of appeal, or on his proctor ifhe was represented by a proctor in the court of first instance,
(3) In the case of any mistake, omission or defect on the part of anyappellant in complying with the provisions of this section, the SupremoCourt, if it should be of opinion that the respondent has not beon materiallyprejudiced, may grant relief on such terms as it may deem just. ”
Held (i) that the provision for giving the respondent notice of tenderingsecurity for costs of appeal requires to be road with section 356 of the Codewhich inter alia provides that “ all notices and orders required by this Ordin-ance to be given to or served upon any person, shall, unless the'court otherwisedirects, be issued for service to the Fiscal of the province or district in whichthe court issuing such … notices, or orders is situate, under a precept
of that court …” It follows that unless compliance with tho require-
ments of section 756 is Waived, the appellant, when his petition of appoal isreceived by the court of first instance, is required “ forthwith ” to lodge thonotice of security with that court for the necessary steps to be taken for serviceof the notice by the Fiscal on the respondent. It is to be noted that while
24—LXXV
2R 0038—1,883 (6/68)
554
Sameen v.' Abeyeunckrema
section 766 makes provision for the service of the notice of appeal on the rospon-.-dent’s proctor by the Fiscal, it does not provide for service of tho notice ofsecurity on the respondent’s proctor either directly or by the Fiscal. That canonly be done if the court gives a direction to that effect under section 350.
that it is not right to construe the Word “ forthwith ” as meaning “ on tho
same day ”. The Supreme Court was Wrong in saying in Da ' Silva v.Seenathumma1 that notice of socurity must bo filed the same day asthe petition of appeal was received. In many cases it may well be that unlessthe notice is filed the same day it cannot be said to be filed “ forthwith ”, butit may be filed forthwith even though not filed the same day. The use of the ■word “ forthwith ” clearly connotes that the notice must be filed as soon aspracticable, but what is practicable must depend upon the circumstances ofeach case.,
that sub-section 3 of section 756 does not attempt to distinguish betweensubstantial or more or less trivial mistakes, omissions or defects. It is expressedto apply in relation not just to some, but to all, tho provisions of section 756.It is also expressed to apply in relation to any mistake, omission or dofoct. . TheSupreme Court is given by this sub-section the power to grant relief on suchterms as it may doom just where there has been a failure to comply with anessential requirement of the section. The only limitation imposed by the sub-section is that the Court has not the power to do so unless it is of the opinionthat the respondent has not been materially prejudiced. The other limitationsplaced by the decision of the Supreme Court in Silva v. Qoonesekere3, ZahiraUmma v. Abeysinghc 3 and Da Silva v. Seenathumma 1 on the scope of thosub-section were not justified.
Having lodged a petition of appoal with the District Court at about 11 o’clockon Saturday the 16th February 1967, the appellant’s proctor tolephonod to thorespondent’s proctors’ firm at about 11.15 a.m. He spoke to a Mr. C who toldhim that the member of the firm dealing with the case was not available butagreed on behalf of the firm to receive the notice of security. The appellant’sproctor then prepared the notice and took it to the respondent’s proctors’promises at about 1.15 p.m. on the same day only to find that Mr. C had leftand that there was no one there to receive it. On the following Monday the 18thFebruary tho notice was again taken to the respondent’s proctors who thenendorsed it “ Received notice subject to objections ”. The notice was thentaken to the District Court and stamped with the seal of the Court. On the8th March, which was the day fixed (according to the notice) for tenderingsocurity for costs of appeal, the respondents appeared before tho District Courtand took the point that the appellant’s notice of security Was bad in that it hadnot been filed with the Court “ forthwith ” upon the petition of appeal beingreceived by the Court. When the appeal was forwarded to the Supreme Court,the preliminary objection was taken that the notice Was not given “ forthwith ”as section 756 required. The Supreme Court upheld tho objection and didnot deal with the question of relief.
Hvld jith at*flft vitflfc" of the technicality of-the respondent’s objection and thefact that the respondent could not have been materially prejudiced by thefailure to file the notice of security with the court for service by the Fiscal,relief should be granted and tho appeal not abated.
* (1940) 41 N. L. R. 241.3 (1929) 31 N. L. R. 1S4.
’8 (1937) 39 N. L. R. 84.
LORD CHANCELLOR—Sameen v. J&&mvt£krema
ApPEAL from a judgment of theCourts'1 'rypwt*d—iji
(1960) 61 N. L. R. 442.
Kenneth Potter, for defendant-appellant.
E. F. N. GrcUiaen, Q.G., with R. K. Handoo and Mrs. N. S. O. Nonie,for plaintiff-respondent.
Our. adv. vuU.
April 3, 1963. [Delivered by the Lord Chancellor]—
On the 15th February 1957 in the District Court of Colombo, judgmentwas entered for the first named respondent as substituted plaintiff againstthe apx>ellant in the sum of Rs. 10,828/— and costs.
The next day, Saturday the 16th February, at about 11.00 a.m. theappellant’s proctor filed a Petition of Appeal in the District Court.
Section 756 (1) of the Civil Procedure Code of Ceylon prescribes thefurther steps that the would-be appellant has to take. It begins asfollows :—
“ (1) When a petition of appeal has been received by the court offirst instance under section 754, the petitioner shall forthwith givenotice to the respondent that he will on a day to be specified insuch notice …, tender security as hereinafter directed
for the respondent’s costs of appeal and will deposit a sufficientsum of money to cover the expenses of serving notice of the appealon the respondent.”
This provision requires to be read with section 356 of the Code.That inter alia provides that
"all notices and orders required by this Ordinance to be given to orserved upon any person, shall, unless the court, otherwise directs, beissued for service to the Fiscal of the province or distriot in which thecourt issuing such … notices, or orders is situate, under a
precept of that court …”
It follows that unless compliance with the requirements of seotion 756 iswaived, the appellant when his Petition of Appeal is received by the courtof first instance is required " forthwith ” to lodge the notice of securitywith that court for the necessary steps to be taken for service of thenotice by the Fiscal on the respondent.
In this case the appellant’s proctor made no attempt until the 28thFebruary to follow this procedure.
Having lodged the Petition of Appeal with the District Court at about11 o’clock on Saturday the 16th February, he telephoned to the respon-dent’s proctors at about 11.15 a.m. He spoke to a Mr. Cooray whotold him that the member of the firm dealing with the case was notavailable but agreed on behalf of his firm to receive the notice of seourity.
556
LORD CHANCELLOR—Sameen v. AbeyeioicJcrema
The appellant's proctor then prepared the notice and took it to therespondent's proctors’ premises at about 1.15 p.m. on the same day,only to find that Mr. Cooray had left and that there was no one there toreceive it.
On the following Monday the 18th February the notice was againtaken to the respondent’s proctors’ offices. They then endorsed it“Received notice subject to objections ”. The notice was then takento the District Court and stamped with the seal of the Court. Theentry for the 18th February in the journal of the action kept by the Courtstates the contents of the notice and records “ Proctors for plaintiff-respondent received notice ”. A later entry in the journal shows thatit should have been recorded as received “ subject to objections ”.
On the 2Sth February the appellant’s proctor in an endeavour to oraplywith section 750 filed a fresh Petition of Appeal and lodged a fresh noticeof security with the District Court.
The notice received by the respondent’s proctors on the 18th Fobruarywas in the following terms :—
“ TAKE Notice that the Petition of Appeal of the Appellant present-ed by me in the above-named action on the 16th day of February, 1957,against the Judgment of the District Court of Colombo dated 15th dayof February, 1957, in the said action, having been received by the saidCourt, Counsel on my behalf will, on the day of 8th March, 1957, at10.45 o’clock on the forenoon, or so soon thereafter move to tenderSecurity in a sum of Rs. 250/-, for any costs which may be incurred byyou in appeal in the premises, and will on,the said day deposit in Courta sufficient sum of money to cover the expenses of serving notice ofappeal on you.
The 16th day of February, 1957.
(Sgd.)
Appellant
(Sgd.) K. RASANATHANProctor for Appellant ”
The notice filed -with the District Court on the 28th February also specifiedthe 8th March as the day on which security would be tendered.
Before their Lordships the appellant did not seek to contend that thenotice lodged with the Court on the 28th February complied with section756 or that the giving of it was any ground for relief from the requirementsof that section.
Section 756 (1) also provides that on the day specified in the notice(which has to be within a stipulated time from the date of the judgment) :
“ the respondent shall bo heard to show cause if any against suchsecurity being accepted. And in the event of such socurity beingaccepted and also tho doposit made within such period, then the courtshall immediately issue notice of the appeal together with a copy of
LORD CHANCELLOR—Sameen v. Abeyetoickrema
the petition of appeal, to be furnished to the court for that purpose by *
the appellant, to the Fiscal for sorvico on the respondent who is named –
by the appellant in bis petition of appeal, or on his proctor if he was
represented by a proctor in the court of first instance.”
It is to be noted that while the section makes provision for the serviceof the notice of appeal on the respondent’s proctor by the Fiscal, it doesnot provide for service of the notice of security on the respondent’sproctor either directly or by the Fiscal. That can only bo done if thecourt gives a direction to that effect under section 35C.
On the 8th March 1957 tho respondents appeared before the DistrictCourt. Notwithstanding their appearance, the respondents took thepoint that the appellant’s notice of security was bad in that it had notbeen filed with the Court “ forthwith ” upon tho Petition of Appealbeing received by the Court. It was contended on their behalf that tinsobjection was fatal to the appeal. Counsel for the appollant asked thatthat appeal should not be abated by the District Court but that the matter' should be left to the Supreme Court.
The District Judge was of the opinio^ that the appeal should be-forwarded to the Supreme Court and that it should be open to therespondents to take their objection there. He stated that he had beenin Chambers from 10.30 a.m. to 12.30 p.m. on the Saturday the 16thFebruary, and while he could not say that he had initialled the Petitionthat morning, he thought that it was most probable that he had done so.
He also recorded that the security tendered was accepted and thatthere was a perfect bond and he issued notice of appeal for the 23rclMarch 1957.
On the 9th, 10th and 11th November, 1959 the matter was heard bythe Supreme Court (Sinnetamby and Fernando JJ.). The preliminaryobjection was taken that the notice was not given “ forthwith ” as section756 requires. Judgment was given on . the 1st February 1960.Sinnetamby J. held that the notice was not given “ forthwith He■ treated the notice lodged with the Court on the 18th February as filedtoo late. He did not in the course of his judgment deal with the questionof relief. It maj, their Lordships think, be assumed that he did not do sobecause in tbe light of the decision of the Supreme Court in De Silva v.Seenathumma 1 he had no power to grant relief on account of failure togive the notice of security “ forthwith ”.
From this decision the appellant now appeals.
Their Lordships’ attention was drawn to the conflicting views ofBertram C.J. in Fernando v. NiJculan Appu2 and Basnayake C. J. inThenuwara v. Thenuwara 3 as to the meaning to be attached to the phraseat the commencement of section 756 (1) “ when a petition of appeal hasbeen received by the court of first instance under section 754 Section754 requires the Petition to be “ presented ” to the court of first instance
1 (1940) 41 N. L. R. 241.* (1920) 22 N. L. R. 1.
* (1959) 61 N. L. R. 49.
2*U 003S C5/C3)
658
LORD CHANCELLOR—Samecn v. Abeyewickrema
•and states “ the court to which the petition is so presented shall receiveit and deal with it as hereinafter provided. If those conditions are notfulfilled it shall refuse to receive it.”
Sections 755 and 758 state how the Petition is to be drawn and itslanguage and form. Section 759 gives the Court power to reject thePetition if it is not properly drawn up or to return it for amendment orto amend it then and there.
Bertram C.J. expressed the view (at page 3 of the Report) that thenotice of security “ must follow forthwith, not upon the presentation of thepetition, but upon its receipt. The receipt ” he said “ is the act of theCourt, and before receiving the petition the Court must verify the factthat the petition is in time. ” Basnayake C.J. took the contrary view,namely that the Petition was “ received ” for the purposes of section 756when it .was handed to the appropriate officer of the court.
As in this case it was common ground that the Petition was “ received ”in both senses in the morning of the Saturday the 16th February, it is,notnecessary for their Lordships to decide which view is right.
The importance which has been attached to the meaning of “ received ”in section 756 would appear to be due to the narrow interpretation whichhas been given to the word “ forthwith ”.
In Fernando v. Nikulan Appu supra Bertram C.J. held that in thecircumstances of that case a notice of security was given forthwithdespite the fact that two days elapsed between the presentation of thePetition and the giving of the notice. He pointed out that the Judgemight have “ received ” the Petition at the end of one day at theconclusion of the court and that on that supposition the petitioner couldhave ascertained that fact and filed the notice' the next day. On thatbasis there was a delay of one day. He held and Shaw J. agreed withhim that a delay of one day did not prevent the court from holdingthat the notice was given forthwith.
Bertram C.J. added (at page 4):
“ I think, however, that, as a general rule, it is the intention of thesection that the notice should be filed on the same day as the receipt isverified or can reasonably be verified. It is important that thisprinciple should be observed, all the more so as delays may interposethemselves between the filing of the notice in Court and its actualdelivery by the Fiscal’s officer.”
T
■ 1
In De Silva v. Seenathumma supra the question was whether reliefshould be given under section 756 (3) on account of the fact that theplaintiff-respondent was not served with the notice of security untilafter the date specified in the notice. This case was heard by a bench'of five Judges who held that the court had no power to grant the reliefasked for.
LORD CHANCELLOR—Sameen v. Abeyeurickrema
559
In the com >h* of his judgment with which the other four Judges agreed,Soertsz J. said (at page 247) :
“ The next question is what are the requirements of Section 756 thatmust he complied with unless they have heen expressly waived. Section756 (1) sets them forth explicitly. They are (1) that the appellant,once the petition of appeal has heen received, shall give notice forth-with that he will on a date within 20 days from the date of the decreeor order appealed against (a) tender and perfect his security, (6) thathe will deposit a sum of money sufficient to cover the expenses ofserving the notice of appeal ..
At the conclusion of his judgment (at page 249) lie said :
“ To sum up, the conclusions reached are that… notice of security*
unless waived, must be given forthwith, that is to say, must be tendered*or filed on the day on which the petition of appeal is received by thecourt (Fernando v. Nikulau Appu supra).”
In the present case Sinnetamby J., following this decision, statedthat the notice was eventually filed in court on the 18th February andjieldthat it should have been filed on the same day as the Petition, thatis to say, the 16th February. Fernando J.’s judgment was to the sameeffect.
In their Lordships’ opinion it is not right to construe the word “ forth-with ” as meaning “ on the same day If it had been intended that thenotice must be filed on the same day as the Petition of Appeal that couldhave been expressed in section 756 by the use of the words “ on the sameday ”. It is to be observed that the decision in Fernando v. NilculanAppu supra does not support the intcipretation placed on “ forthwith ”by Soertsz <T. at the end of his judgment. The decision in that casewas that the delay of one day did not’prevent the court from holdingthat the notice was given “ forthwith ”.
Bertram C.J. in expressing his ojnnion that as a general rule it was theintention of the section that the notice should be filed on the same day asthe receipt was verified or could reasonably be verified, did not hold that osa matter of law the notice must lie filed the same day as the Petition ofAppeal was received. If he had held that, it would have been in conflictwith the decision in that case.
In their Lordships’ opinion Soertsz J. in De Silva v. Seenaihumma' supra was wrong in saying that the notice must be filed the same day asthe Petition was received. In many cases it may well be that unless thenotice is filed the same day it cannot be said to be filed “ forthwith ”but it may bo filed forthwith even though not filed the same day. TheirLordships do not propose to attempt to define “forthwith”. Theuse of that word clearly connotes that the notice must be filed as soonas practicable, but what is practicable must depend upon the circum-stances of cac-h case.
560
LORD CHANCELLOR—Sameen v. Abeycwickrema
Sinnetamby J. in this case • said that the notice was eventually filedon the 18th February. If it had been filed for the purpose of complyingwith the requirements of Section 756, namely to secure the service by theFiscal of the notice on the respondent, it may well be that, having regardto the circumstances of this case and in particular to the fact that thecourt did not sit on the Saturday afternoon, it should be treated as havingbeen filed forthwith.
Before their Lordships it was. submitted by counsel for the respondentthat the notice filed on the 18th February was not filed for that purposeand this was agreed by counsel for the appellant. It would seem that thepurpose of filing it was to inform the court of the contents of the notice andof the fact that the respondent’s proctors had received it. In thesecircumstances their Lordships do not think it would be right to hold thatthe filing of the notice on the 18th February complied with Section 756.It follows that the prescribed procedure was not followed by the appellant,with the consequence that unless he is granted relief his appeal isabated.;
Section 756 (3) of the Civil Procedure Code, which was added in 1921after the decision in Fernando v. Nikulan Appu supra, reads as follows :
• i
“ In' the case of any mistake, omission, or defect on the part of anyappellant in complying with the provisions of this section, the Supreme-Court, if it should be of opinion that the respondent has not beenmaterially prejudiced, may grant relief on such terms as it may deem- just. ”
This provision has been the subject of judicial consideration on anumber of occasions. In Silva v. Goonesehere1, it was admitted thatnotice of appeal had not been given to any of the parties and that thesecurity bond had not been signed by any of the parties. The Courtrefused to grant relief under 756 (3) and Fisher C.J., in the course of hisjudgment said (at page 185).
“ I do not think that this additional paragraph [756 (3)] can be heldto apply to cases where there has been a substantial non-compliancewith the provisions of the section. In my opinion it applies to moreor less trivial omissions where it may be said that although the strictletter of the law has not been complied with the party seeking reliefhas been reasonably prompt and exact in taking the necessary steps.”
Their Lordships do not consider that the limitation placed by Fisher C. J.on the scope of Section 756 (3) is justified. The sub-section begins :
“ In the case of any mistake, omission, or defect on the part of anyappellant in complying with the provisions of this section ”.
It does not attempt to distinguish between substantial or more or lesatrivial mistakes, omissions or defects, and the sub-section, in their Lord-. ships’ view, applies in relation not just to some, but to all, the provisions:of Section 756.
i {1929) 31 N. L. H. 184.
LORD CHANCELLOR—Sameen v. Abeyewickrema
561
Their Lordships do not wish to suggest that relief was not rightlyrefused, but in their view Fisher C.J. was wrong in thinking that therewas any such limitation on the power to grant relief.
In Zahira Umma v. Abeysinghe1 Abrahams C.J., in the course of hisjudgment (at page 85) said :
“It seems to me that there are two forms of a breach of Section 756in respect of which this Court ought not to give relief. One is when,whether a material prejudice has been caused or not, non-compliancewith one of the terms of Section 756 has been made without an excuse,and the other is when though non-compliance with an essential termmay be trivial, a material prejudice has been occasioned.”
Abrahams C.J. does not appear to have been intending to say that thepowers of the court under Section 756 were in any way restricted, but onlyto have been expressing his opinion as to the circumstances in whichthe court should not, in the exercise of its discretion, grant relief.Whether or not there was an excuse for non-compliance with a require-ment of the section is a material circumstance to be taken into accountin deciding whether or not, the Court should in the exercise of itsdiscretion, grant relief. But the sub-section itself does not provide thatrelief shall not be granted if there is no excuse for non-compliance andto interpret it in this way is in their Lordships’ opinion, wrong.
In De Silva v. Seenathumma supra Soertsz J. cited this passage from thejudgment of Abrahams C.J. and said (at page 245):
“ This is an authoritative decision of this Court and, if we may say so,contains a correct statement of the meaning of Section 756 read as awhole, but in view of the fact that that decision does not appear to havebeen duly appreciated, in the succinct form in which it has been ex-pressed, it seems desirable to elucidate its meaning. The first part ofthat statement is intended to lay down that where there has been atotal failure to comply with one of the terms of Section 756, relief willnot be given even if it should be apparent that no material prejudicehas been occasioned to the respondent by such a failure, for peremptoryrequirements of the law must be given full effect.”
Their Lordships are unable to agree with these observations made by thelearned judge. As has been said, Abrahams C.J. was not, so it wouldseem, intending to state the meaning of Section 756 read as a whole butmerely expressing an opinion as to the exercise of their discretion by thecourt. Their Lordships cannot agree that the first part of AbrahamsC.J.’s statement was intended to lay down that where there has been atotal failure to comply with one of the terms of Section 756, relief will notbe given even if it should be apparent that no material prejudice has beenoccasioned to the respondent.
1 (1937) 39 N. L. Tt. 84.
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LORD CHANCELLOR—Sameen v. Abeyewickrema
Later in his judgment (at page 247) Soertsz J. said:
“ The result thus reached is that this Court is not empowered bysub-section (3) to grant relief where there has been a failure to complywith an essential requirement of section 756 regardless of the questionof prejudice, but may do so in cases in which there has been * mistake,omission, or defect in complying with the provision of Section 756 ’provided the respondent has not been materially prejudiced.
I cannot read sub-section (3) in the manner proposed by theappellant’s Counsel as covering ‘ all failures ’, for to read it in thatway, that sub-section will have to be recast, for instance, as follows :in the. case of a failure to comply with, or of any mistake, omission, ordefect in complying with
The distinction sought to be drawn by the learned judge between “ afailure to comply with ” and “ a mistake, omission or defect in complyingwith ” is not, in their Lordships’ opinion, a valid one. The failure tocomply with a requirement may be due to a mistake or omission. Anomission in complying -with a requirement must, so it seems to theirLordships, involve a failure to comply with the requirement.
.4i 1
Their Lordships are accordingly unable to accept the learned judge’sview as a correct interpretation of Section 756 (3). As their Lordshipshave said, that sub-section is expressed to apply in relation to theprovisions of Section 756 and there is no justification for saying that itapplies to some and not to all the provisions of that section. It is alsoexpressed to apply in relation to any mistake, omission or defect.
In their Lordships’ view the Supreme Court is given by this sub-sectionthe power to grant relief on such terms as it may deem just where therehas been a failure to comply with an essential requirement of the section.The only limitation imposed by the sub-section is that the court has notpower to do so unless it is of the opinion that She respondent has not beenmaterially prejudiced.
This decision was followed in a number of cases cited by BasnayakeC.J. in his judgment Thenuwara v. Thenuwara supra, and by the learnedChief Justice in that case. It was followed by the Supreme Court inthis case with the result that that court did not consider whether it wouldhave granted relief if it had thought it har power to do so.
Can it be said that there are any grounds for an opinion that therespondents were materially prejudiced by the appellant’s failure tocomply with the requirements of Section 756 ? The obvious intention ofthe provision that they should be given notice of security forthwith is. thatthey should have due notice of the day fixed for them to show cause, ifthey wished, against the security tendered being accepted. On Monday,18th February, they had notice that the date for that would be the 8thMarch and on the 8th March the respondents were represented at thehearing before the District Court. In fact they may well have had
LORD CHANCELLOR—Sameen v. Abeyewickrema
563
notice of that date at an earlier time than they would have had if the
procedure laid down hy the Civil Code had been carried out. If the
%
appellants had filed notice of security in the District Court on Saturday,16th February, or on the morning of the ISth February, the Court wouldhave then had to issue a precept to the Fiscal and then some delaymight have occurred before the Fiscal served the notice.
In the circumstances, in their Lordships’ opinion, the respondentscannot have been materially prejudiced by the failure to file tlic notice ofsecurity with the court for service by the Fiscal.
It docs not follow that relief should be given even if the respondentshave not been materially prejudiced but relief should not be lightlywithheld, for the effect of refusing relief may be to deprive a litigant ofaccess to the Supreme Court and, if the original judgment is wrong,amount to a denial of justice.
In this case importance is to be attached to the fact that on the Satur-day, 16th February, Mr. Cooray, a member of the respondent’s proctors’firm agreed to accept notice of security. That may well have led theappellant’s proctor to suppose that the respondent’s proctors wereprepared to waive compliance with the requirements of Section 756and so have led him not to have filed the notice at the Court that morning.
While the respondents were entitled to object on the Monday on theground that Section 756 had not been complied with, it may well beregarded as somewhat surprising that they should have done so in viewof the statement made by Mr. Cooray on the Saturday.
1
Their Lordships were invited to remit the case to the Supreme Court toconsider whether relief should be granted, it being urged that as theSupreme Court had held, regarding themselves bound by authority thatthey did not have power to grant relief in respect of this non-compliance,this course should be taken.
Their Lordships, bearing in mind the technicality of the respondent’sobjection and the fact that the respondent cannot have been materiallyprejudiced, have come to the conclusion that it would not be right to takethis course, and so prolong litigation which started so long ago as 1957.In their Lordships’ view there can be no doubt that in the circumstancesof this case relief should be granted and the appeal not abated andaccordingly their Lordships will humbly advise Her Majesty that theappeal should be allowed with costs and with the costs incurred in ther Supreme Court.
Appeal allowed.