AHAMADULEBBAI, Appellant, and JUBARIUMMAH, Respondent

091-NLR-NLR-V-62-AHAMADULEBBAI-Appellant-and-JUBARIUMMAH-Respondent.pdf


474=
Aluanadulebbai v. Jubariummah
1960 Present : Basnayake, C.J., K. D. de Silva, J. and Sansoni, J.AHAMADULEBBAI, Appellant, and JUBARIUMMAH, Respondent
S. G. 414—D. C. Batiicaloa, 1243jL
Interpretation, of statutes—Definition of cm expression in one statute—Applicabilityof it to the same expression when used in another statute.
Appeal—Notice of tender of security for costs—Requirement of service on respondentin person—Distinction between “process ” and “ nolic”—Deposit of money
as security—Rond relating theretoRequirement of execution before the Judge
or the Secretary of Court—Fiscals Ordinance, s. 17—Civil Procedure Code, ss.29. 756, 757—Supreme Court Appeals (Special Provisions) Act, No. 4 of 1960.
Tli© definition of an expression in one enactment does not apply to tlie sameexpression when used in another enactment unless it is so expressly provided.Accordingly., tho definition of the word “ process ” in section 17 of the FiscalsOrdinance is not applicable to tho same word in section 29 of the Civil ProcedureCode.
Prior to the date when the Supreme Court Appeals (Special Provisions)Act Kb. 4 of I960 was enacted, an appoal from a judgment of a DistrictCourt was liable to be rejected in «. itlior of tho following cases (unloss thoro waswaiver) :
(i) if tlio notice of tender of security for the costs of appoal given undersection 756 of tho Civil Procedure Code was not addressed to and served on thorespondent himself in person. Service on tho respondent’s Proctor was notsufficient, For a notice of tender of security is not a “ process ” within thomeaning of that expression in section 29 of the Civil Procedure Code.
(ii) if tho bond hypothecating money deposited as security in torms of section757 of tlio Civil Procedure Code was not executed before the District Judge orthe Secretary of tho Court. 1
1 (1934) 36 N. R. 400.
BASNAYAKE, C.J.—Ahamadiilebbai v. Jttbariummnh
4:75
from a judgment of the District Court, Batticaloa.
Rarujanathan, with E. E. Vannitamby and A. R. Mansoor, forDefendant-Appellant.
H. W. Jayewardene, Q.C., with S. Sharvananda and L. C. Seneviratne,for Plaintiff-Respondent.
Cur. adv. vult.
November 30, 1960. Basnayake, C.J.—
When this appeal first came up for hearing learned counsel for therespondent raised a preliminary objection to its being heard on theground that the requirements of section 756 of the Civil ProcedureCode had not been complied with by the appellant. The grounds urgedin support of the objection are—
(а)that the appellant has not given to the respondent notice of tenderof security for costs of appeal as required by section 756.
(б)that the bond hypothecating the money deposited as security hasnot been executed before the District Judge or the Secretary of the Court.
As-the decisions of this Court on the questions arising on the preli-minary objection are all not easily reconcilable the matter of the objectionhas been set down for hearing before three Judges. The questions thatarise for decision are—
(o.) Is a notice of tender of security for the costs of appeal given undersection 756 of the Civil Procedure Code addressed to the respondent’sProctor and served on him, a notice given to the respondent as requiredby that section ?
(6) Is an instrument hypothecating the money deposited by the partyappellant as security for the costs of the respondent invalid for thereason that in the case of an appeal from a District Court it is not exe-cuted before the District Judge or the Secretary of the Court, and in thecase of an appeal from a Court of Requests before the Commissionerof Requests or the Chief Clerk ?
470
13 ASX AY AldC, C-J.—A.humad.'ulebbai v. Jubariununah
The notice of tender of security given in the instant case reads asfollows :—
“ Notice of Security
No. 1243/L
In the District Court of Batticaloa
Mohamadu Saripu Ahamadulebbai ofDivision No. 4, Sammanthurai.
Defendant- Appellant.
Ahamadu Meerasaibo HadjiarJubariummah of Maruthamunai.
Plaintiff-Respondent.
To :N. Chinnaiyah, Esq.
Proctor for Plaintiff-RespondentBatticaloa.
Take notice that the petition of appeal presented by me in theabovenamed action on the 19th day of September 1958, against theOrder of the District Court of Batticaloa dated the 19th day of Sep-tember 1958, in the said action having been received by the said Court,
I on behalf of the Defendant-Appellant will on 7th day of October1958, at 9 o’clock in the forenoon or so soon thereafter move to tendersecurity by depositing the sum of Rs. 150 for any costs which maybe incurred by you in appeal in the premises and will on the saidday deposit in Court a sufficient sum of money to cover the expensesof serving notice of appeal on you.
Sgd. Edwards
Proctor for Defendant-Appellant.
Batticaloa,
September 22, 1958.”
This notice was served on the plaintiff-respondent’s Proctor and theEiscal made return accordingly. The matter of security was consideredby the Court on 21st October 1958. The minute in the Journal of thatdate reads—
“ Notice of security servedSecurityParties absentPlff’s Proctor absent
Mr Advocate Mylvaganam for deft : ap.
Security accepted
Issue notice of appeal ret. 4.11.5S.”
In a recent case (S. C. Application 315 for Revision in D. C. BalapitiyaCase No. 187/T—S. C. Civil Minutes of July 1, I960)1 it was decidedby my brother de Silva and myself that a notice of tender of security
1Sec (J000) 02 NJJJR. 07.—Ed.
13ASNAYAKE, C.J.—A.hsirruutulebbni v. J’ubarixirtvmah
477
addressed to the respondent’s Proctor and served on him is not a noticegiven to the respondent as required by section 756 of the Civil ProcedureCode. Learned counsel’s arguments on this point do not affect thedecision in that case. He dreW” our attention to the definition of theexpression “ process ” in the Fiscals Ordinance.
On the facts stated above it would appear that notice of tender ofsecurity for the costs of appeal has not been given to the respondentby the appellant in accordance with the statute. Where a statuterequires that one party to a legal proceeding should be given noticeof any step that the opposite party proposes to take, the notice mustbe given to the party personally unless the statute provides otherwise.Learned counsel for the appellant relied on section 29 of the CivilProcedure Code. That section reads—
c‘ Any process served on the proctor of any party or left at the officeor ordinary residence of such proctor, relative to an action or appeal,except where the same is for the personal appearance of the party,shall be presumed to be duly communicated and made known to theparty whom the proctor represents : and, unless the court otherwisedirects, shall be as effectual for all purposes in relation to the actionor appeal as if the same had been given to, or served on, the party inperson.”
In the first* place neither section 29 nor any other section of the CivilProcedure Code affords any authority for addressing to liis Proctor anotice which the statute requires to be given to the respondent. Whatthe section enacts is that service on the proctor of a party of £C anyprocess ” meant for that party shall be as effectual as if it had been givento the party in person. Even in a case which falls within the ambit ofsection 29 the process must be addressed to the party for whom it isintended and not to the Proctor. The section does no more than permitthe delivery to the Proctor of a party a process addressed to the party.Therefore a notice addressed to the respondent’s proctor in terms ofthe section quoted above is not a notice to the respondent. In thesecond place it is only “ process ” served on the Proctor of any partythat is presumed to be duly communicated and made known to theparty whom the Proctor represents and is as effectual as if it had beengiven to or served on the party in person. As has been pointed out inS. C. Application 315/X). C. Balapitiya Case Ho. 1S7/T (supra) a noticeof tender of security is not a “ process ” within the meaning of thatexpression in the Civil Procedure Code. As was submitted by learnedcounsel for the appellant the word “ process ” has been given by expressdefinition a wider meaning in the Fiscals Ordinance.- In that Ordinancea process is thus defined c process * shall include all citations, monitions,summonses, mandates, subpoenas, notices, rules, orders, writs, warrants,and commands issued by a court ; ”. It is clear from the form of thedefinition that it was designed to include within its ambit all instrumentswhether they be process properly so called or not which the Fiscal may
47 S
BASNAYAKE, C.J.—Aha?nadulcbbai v. Jubariummah
be required to serve. The draftsman of the Ordinance appears to havedefined the expression by giving it an artificial meaning as a device tofacilitate drafting.
It is a well established rule of interpretation that the definition of anexpression in one enactment does not apply to the same expressionwhen used in another enactment (1921 A. C. 220) unless it is so expresslyprovided. As was stated by Lord Loreburn in Macbeth v. Chislett1—
“ It would be a new terror in the construction of Acts of Parliamentif we were required to limit a word to an unnatural sense because insome Act which is not incorporated or referred to such an interpreta-tion is given to it for the purposes of that Act alone.”
This is not a case in which such provision is made. The Fiscals Ordi-nance makes it clear that the meaning given therein to the expressionis for the purpose of that Ordinance alone, for section 17 states :
“ The following words and expressions in this Ordinance shall havethe meaning hereby assigned to them, unless there be something in thesubject or context repugnant to such construction : ”
The rule of construction is different where words have been judiciallyinterpreted. Expressions judicially interpreted are presumed to beused by Parliament in subsequent legislation in the sense which hasbeen judicially declared to be the meaning of those expressions [(1933)A. C. 402 ; (1960) 2 W. L. R. 669—H. L.] the reason being that Parliamentis presumed to know the law [(1933) A. C. 402 at 441 ; (1943) 2 All E. R.289 at 298]. The context of the Civil Procedure Code clearly indicatesthat the expression “ process ” is used therein in a sense different fromthat in which it is defined in the Fiscals Ordinance. It draws a distinc-tion throughout between “process” and “notices”. The word “pro-cess ” when used in connexion with civil or criminal cases has a wellunderstood meaning in its own right as would appear from the followingquotation from Tomlin’s Law Dictionary (Vol. II “ Process ”) :—
“ Blackstone considers process in civil cases as the means of com-pelling the defendant to appear in Court. This is sometimes calledoriginal process, being founded upon the original writ (now abolishedin personal actions, see post) ; and also to distinguish it from mesneor intermediate process, which issues, pending the suit, upon somecollateral interlocutory matter ; as to summon juries, witnesses, andthe like. Mesne process is sometimes put in contradistinction to finalprocess, or process of execution ; and then it signifies all such processas intervenes between the beginning and end of a suit.”
It is dangerous as has been pointed out by the Privy Council [(1938)A. I. R. (P. C.) 152 at 158] to seek to construe one statute by referenceto the words of another. As the word “ process ” in section 29 does notinclude a notice, in the instant case the notice has not only not been
1 (10JO) A.C. 220, 223.
BASNAYAKE, C.J.—Ahamadulebbai v. Jiibariummah
479
properly addressed but has also not been served on the respondent inperson as required by the Code. A procedural enactment is imperativeand non-compliance with its requirements is fatal. The rule is wellestablished and has been repeated in successive editions of Maxwell onInterpretation of Statutes. It is thus stated in the latest edition :
“ Enactments regulating the procedure in Courts seem usually tobe imperative and not merely directory. If, for instance, an appealfrom a decision be given with provision requiring the fulfilment ofcertain conditions, such as giving notice of appeal and entering intorecognisances, or transmitting documents within a certain time,a strict compliance would be imperative and non-compliance wouldbe fatal to the appeal.” [(10th Edn p. 377) (112 J. P. 113)].
The case of de Silva v. Seenathumma, a decision of five Judges1, giveseffect to this rule of interpretation. It is a rule of construction thateither party may waive provisions which are for his own benefit. Noticeof appeal and security which are meant for the benefit of the respondentand are not matters with which the public are concerned may be waivedby the respondent (<Graham v. Inglely2). In the instant case there isnothing to show that the respondent waived his right to the prescribednotice ; both the respondent and his Proctor were not present when theCourt made order accepting security. The rule is based on the maximquilibet juri pro se introdaicto renunciare potest. This Court has so heldin more than one reported decision. As all the previous decisions ofthis Court on this topic were reviewed by me in my judgment in S. C.Application 3l5/D. C. Balapitiya Case No. 1S7/T {supra) with w'hichmy brother de Silva concurred it is not necessary to burden this judgmentwith a review of those decisions.
I now pass to the next point. Section 757 provides :
“ The security to be required from a party appellant shall be bybond (form No. 129, First Schedule) with one or more good and suffi-cient surety or sureties, or shall be by way of mortgage of immovableproperty or deposit and hypothecation by bond of a sum of moneysufficient to cover the cost of the appeal and to no greater amount.”
The language of the section indicates that it is open to the respondentto ** require ” the appellant to give security in any one of the threemodes prescribed therein. The security must be sufficient to coverthe cost of the appeal. Now it is noteworthy that the section does notspeak of the taxed costs of appeal but the cost of the appeal. It isw'ell known that the actual cost of an appeal is much greater than thetaxed costs. Section 756 contains a pointer to section 757 in the w'ords“ tender security as hereinafter directed ”. The question for decisionin the instant case is whether the bond hypothecating money depositedas security should be executed before the District Judge or the Secretaryof. the Court or whether it may be executed before a notary or whetherit is sufficient if it is signed by the appellant without attestation by any
1 {1940) 41 X.L.R.241.*{1S4S) 1 Exch. 651, G57.
480
BASNAYAKE, C.J.
AhamadiUebbai v. J-ubariutntnah
public functionary such as the District Judge or the Secretary of theCourt or a notary. Learned counsel for the respondent contended thata bond hypothecating money deposited as security created a judicialhypothec and should therefore be signed before the District Judge or theSecretary of the Court. He urged that the word “ bond ” presupposesa formal document and not an informal writing composed by thoappellant and signed by him alone without any attestation. He reliedon the meaning of the word “ bond ” and called in aid a long scries ofdecisions of this Court in which it had been held that a bond given undersection 757 should in the case of an appeal from the District Court besigned before the District Judge or the Secretary of the Court and noother.
The practice of requiring that bonds given under section 757 of theCivil Procedure Code should in the case of an appeal from a DistrictCourt be signed before the District Judge or the Secretary of theCourt is one that has been long established. In Menikhamy v. Pinhamy1this Court approved the practice of executing security bonds before theSecretary of the District Court. Later in Fernando v. Fernando 2 BertramC.J. gave his imprimatur to the established practice in these words :
“It is quite true that the requirements of the rules and orders ofthat day under which the security bond had to be executed in thepresence of the Court have disappeared from our legislation. Butthe practice has still remained that bonds of this description shouldbe executed either before the Judge or before the Secretary asrepresenting him.”
These decisions were followed hr the recent case of Wijernanne v. Costa 3by my brethren Weerasooriya and 1C. D. de Silva who held that a bondhypothecating money as security for costs should be executed in thecase of an appeal from a District Court before either the District Judgeor the Secretary of the Court. I am in entire agreement with the opinionexpressed by them. The rule is too long established to permit of anydeparture. Attempts to alter it have not been encouraged. In theinstant case the bond, not having been executed either before tho DistrictJudge or before the Secretary of the Court, cannot be regarded as onethat satisfies the requirements of the law.
Since we reserved judgment in this case the Supreme Court Appeals(Special Provisions) Act No. 4 of 1060 has become law and the onlyquestion that remains for decision is whether that Act applies to theinstant case. As we have not had the advantage of hearing counsel onthe point I direct that this appeal be listed before a bench of two Judgesin the ordinary course for the decision of that question.
K. D. de Selva, J.—I agree.
Sansoni, J.—I agree.
Case to be re-listed.
2 {1021) 23 27.It.Ji. 153.3 {1950) 01 JV.J3.lt. 10.
'{1921) 23 N.It.lt. ISO.