ANEEZA UMMA v. LEELAWATHIE AND ANOTHER

033-SLLR-SLLR-1999-V-3-ANEEZA-UMMA-v.-LEELAWATHIE-AND-ANOTHER.pdf


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Aneeza Umma v. Leelawathie and Another
253
ANEEZA UMMA
v.LEELAWATHIE AND ANOTHER
COURT OF APPEALWEERASURIYA, J„
KULATILAKE, J.
A. NO. 743/97.
C. KANDY NO. 15354/LMAY 10, 1999.
Appeal notwithstanding lapse of time – Civil Procedure Code, S. 765 – Sufficientcause – Causes not within the control.
The plaintiff-appellant tendered the Notice of appeal but failed to file the petitionof Appeal within 60 days from the date of judgment. In an application unders. 765 CPC –
Held:
The position of the plaintiff-appellant, that due to her illness shewas prevented from meeting her lawyer cannot be accepted as themedical certificate does not speak of any inability to attend Court on aparticular day.
The assertion of the defendant-respondent that the husband of the plaintiff-appellant was the person who attended to the matters relating to the caseremain uncontroverted; this position has to be considered in the light ofthe cultural background, vis-a-vis the position of a female in that particularcommunity.
There was no averment that she was in a serious condition of healthnecessitating her to be admitted to the hospital and attendant difficultiesleading to a disarranged way of life of the entire household.
The medical certificate had been issued after expiry of the alleged periodof bed rest recommended by the Doctor, there is no reference to previousinstances of high blood pressure necessitating medical treatment nor is
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there any reference to a diagnostic card or a prescription showing historyand the manner of illness or the treatment administered to the patient.
The circumstances enumerated by the plaintiff-appellant were notsufficiently unusual and compelling to satisfy that they were causes notwithin the plaintiff-appellant's control. There was neligence, inaction andwant of bona fides on the part of the plaintiff-appellant.
APPLICATION under s. 765 of the Civil Procedure Code.
Cases referred to:
M. I. Foenander v. Attorney-General – 80 CLW 31.
Krishna v. Chatahppan – 13 Madras Series 269 at 271.
Omar Lebbe Seynath Umma v. Mohammed Salty Rajabdeen – BAUR 1996vol. I part 2.
M. A. Q. M. Ghazalli with Ms Mallika Somasunderam for plaintiff-petitioner.
A. A. de Silva, PC with Janaka Silva and S. A. D. S. Suraweera for defendant-respondent
Cur. adv. vult.
June 11, 1999.
WEERASURIYA, J.
The plaintiff-appellant instituted action in the District Court of Kandyseeking a declaration of title to the land called Girakaduwa Arambamorefully described in the schedule to the plaint, ejectment of thedefendant-respondents therefrom and damages. The defendant-respondents sought dismissal of the action and a declaration that theyare the owners of the land described in the schedule to the answer.The case proceeded to trial on 12 issues and the learned DistrictJudge after conclusion of the case, by his judgment dated 04.07.1997,dismissed the action. Thereafter, the plaintiff-appellant tendered noticeof appeal against the said judgment on 22.7.1997 but failed to filethe petition of appeal within 60 days from the date of the judgment.
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Aneeza Urrtma v. Leelawathie and Another (Weerasuriya, J.)
255
The present application has been filed seeking an order to admit theappeal notwithstanding lapse of time in terms of section 765 of theCivil Procedure Code.
Section 765 of the Civil Procedure Code reads as follows:
765 – " It shall be competent to the Court of Appeal to admitand entertain a petition of appeal from a decree of any originalcourt, although the provisions of sections■ 754 and 755 havenot been observed:
Provided that the Court of Appeal is satisfied that the petitionerwas prevented by causes not within his control from complyingwith those provisions; and
Provided also that it appears to the Court of Appeal thatthe petitioner has a good ground of appeal, and that nothinghas occurred since the date when the decree or order whichis appealed from was passed to render it inequitable to thejudgment-creditor that the decree or order appealed from shouldbe disturbed."
It is, therefore, incumbent to examine whether the plaintiff-appellanthas satisfied Court that she was prevented by causes not within hercontrol from filing her appeal in time.
Learned counsel for the plaintiff-appellant contended that –
Court ought not look into the question of the intensity or’degree of the cause affecting the incapacity of the plaintiff-appellant; and
the test ought to be the conduct of the plaintiff-appellant,vis-a-vis her case.
He cited the cases of M. T. Foenander v. Attorney-General andKrishna v. Chatahppari® at 271 in support of his contention. InFoenander v. Attorney-General (supra) it was held that the word'sufficient cause' in the Indian Limitations Act had been interpretedto receive a liberal construction so as to advance substantial justicewhen no negligence nor inaction nor want of bona tides is attributed
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to the appellant. In that case, the petitioner's absence from Sri Lankasubsequent to the judgment, his change of residence, from time totime, his wife's serious illness which necessitated her being taken toAustralia and subsequent return to Sri Lanka resulting in readjustmentto live in this country were held to be sufficiently unusual and com-pelling to satisfy Court that they were causes not within his control.
In the Indian case of Krishna v. Chatahppan (supra) the plaintiffwho desired to appeal against the decree dismissing his suit wasadvised that the appeal lay to the High Court in which a memorandumof appeal was filed and was returned for presentation to the DistrictCourt on the basis that the value of the action was less thanRs. 5,000. The District Judge rejected it on the ground that it wasbarred by limitations holding that the delay caused by the error whichthe appellant committed in taking proceedings in the wrong Court couldnot be excused. It was held that the District Judge should have decidedwhether the appellant under the special circumstances of the casein appealing to the High Court acted on the honest belief with duecare and attention.
It was observed at page 271 that the true rule is whether underthe special circumstances of each case the appellant acted under anhonest belief though mistaken belief formed with due care and at-tention. It was held that the wording 'sufficient cause' receiving a liberalconstruction so as to advance substantial justice when no negligencenor inaction nor want of bona tides is imputed to the appellant.
It is to be noted that in the Indian Limitations Act reference is to'sufficient cause', whereas the emphasis in terms of section 765 ofthe Civil Procedure Code is to 'causes not within his control'.
In the instant case, the plaintiff-appellant has averred that on orabout 15.08.1997 she was treated for high blood pressure and wasrecommended bed rest for one month as evidenced by the medicalcertificate marked P5.
The medical certificate marked P5 is dated 15.09.1997 meaningthat it had been issued after expiry of the alleged period of bed restrecommended by the doctor. There is no reference to previousinstances of high blood pressure, necessitating medical treatmentnor is there any reference to a diagnosis card or a prescription showing
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Aneeza Umma v. Leelawathie and Another (Weerasuriya, J.)257
history and the manner of illness or the treatment administeredto the patient. Thus, P5 could be aptly described as a certificatethat the patient had been recommended bed rest for one monthfrom 15.08.97 without any supporting material. Further, the materia)contained in the medical certificate had been challenged by thedefendant-respondents.
The plaintiff-appellant by this medical certificate purported to supporther position that due to her illness, she was prevented from meetingher lawyer to prepare the petition of appeal. It is noteworthy that themedical certificate marked P5 does not speak of any inability to attendCourt on a particular day. Another circumstance which may meritconsideration is that the period covered being one month whether thedoctor has examined her during that period to ascertain her truecondition relating to her inability to attend to urgent and compellingneeds outside the precincts of the house.
The petition of appeal has to be lodged within 60 days from thedate of judgment, namely before 04.09.1997. Therefore, it is notpossible for anyone to assert on the strength of the medical certificatethat the plaintiff-appellant was prevented from meeting the lawyer togive instructions to prepare the petition of appeal.
The assertion of the defendant-respondents that the husband ofthe plaintiff-appellant was the person who attended to the mattersrelating to the case remain uncontroverted. It is significant that thisposition has to be considered in the light of the cultural background,vis-a-vis the position of a female in that particular community.
The defendant-respondents in their objections had submitted thatthe registered Attorney-at-law of the plaintiff-appellant resides withinhalf a mile from the residence of the plaintiff-appellant. The materialfurnished by the plaintiff-appellant is insufficient to establish that dueto her illness the whole household was disorganized. There was noaverment that she was in a serious condition of health necessitatingher to be admitted to the hospital and attendant difficulties leadingto a disarranged way of life of the entire household. In the absenceof any material that she was the only member of the householdavailable, the conclusion is inescapable that any matter relating tothe petition of appeal could have been attended to by her husbandor any other member of her household.
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Learned counsel for the plaintiff-appellant cited the case of OmarLebbe Seynath Umma v. Mohamed Sally Rajabdeerf-51 in support ofhis contention that the Appellate Court need not look into the intensityof the incapacity of the appellant.
In that case what was in issue was an application in terms of section86 (2) of the Civil Procedure Code. Section 86 (2) of the CivilProcedure Code provides for an application by a defendant to excusehis default relating to the entering of an ex parte decree. In termsof this provision the burden is imposed on the defendant to satisfyCourt that he had 'reasonable grounds' for such default. In the medicalcertificate tendered in that case there was a specific reference to thepetitioner being unfit to attend Court on a specified date. Further,petitioner in that case had placed before Court uncontradictedevidence that none of her children were available to have the medicalcertificate sent to Court on that date.
The pivotal question in the circumstances of this case is whetherthe plaintiff-appellant was prevented by 'causes not within her control'from complying with the requirement to file petition of appeal withina period of 60 days. Having carefully examined all the material placedbefore us, it seems to me that there was negligence, inaction andwant of bona fides on the part of the plaintiff-appellant. Therefore,the circumstances enumerated by the plaintiff-appellant were notsufficiently unusual and compelling to satisfy us that they were causesnot within her control.
The next question which remains to be examined is whether thereis a good ground of appeal. Having examined the judgment, it seemsto me that it is a difficult proposition to assert that there is a goodground of appeal.
For the above reasons, I dismiss the application with costs.
KULATILAKE, J. – I agree.
Application dismissed.