012-NLR-NLR-V-37-ATTORNEY-GENERAL-v.-KARUNARATNE-et-al.pdf
Attorney-General v. Karunaratne.
67
1935
Present: Poyser and Koch JJ. and Soertsz AJF.
ATTORNEY-GENERAL v. KARUNARATNE et al.
326—D. C. Galle, 32,345.
Appeal—Petition of Appeal—Failure to supply stamps for decree of SupremeCourt—Fatal irregularity—Stamp Ordinance, No. 22 of 1909, schedule B,part 2.
Failure to deliver, together with the petition of appeal, stamps for thedecree of the Supreme Court and the certificate in appeal is a fatalirregularity.
lASE referred to a Bench of three Judges by Garvin S.P.J. and
Maartensz J. The question for determination was whether an appealshould be rejected on the ground that the stamps for the decree of theSupreme Court and the certificate in appeal were not delivered to theSecretary of the District Court together with the petition of appeal.
H. V. Perera (with him A. L. Jayaswriya), for defendants, appellants.—The case of Bandara v. Baban Appu1 was first listed before a Bench of twoJudges on November 8, 1892, and it stood out of the list on that day. Itwas relisted on November 16, 1892, when three Judges sat by accident.In 1892 there was no provision for a reference to a Full Court. Sections41 and 52 of the Courts Ordinance were the only provisions then existing.
It is necessary that there should be a reference to a Full Court. It willnot be presumed that the Judges sat on such a reference. There isnothing to show that a Full Court was specially convened to hear Bandarav. Baban Appu (supra). There are not three judgments in that case.(Vide differing views on this point in 21 N. L. R. 93 and 21 N. L. R. 170).j Soertsz J. referred to section 774 of the Civil Procedure Code.]
A “ judgment ” there refers to reasons, as distinguished from order ordecree. After the Code, every Judge has to deliver a judgment. Ifthree Judges merely happen to be present, it would not be regarded as ajudgment of the Full Court, unless there was a reference to the Full Court.But where there has been a reference, a judgment of one Judge might beregarded as the judgment of all.
All the Judges must not only be present, but must participate in theproceedings (Jane Nona v. Leo’).
See In re Wappu Marikkar3, where Wood Renton J. referred to a caseand distinguished it from a Full Bench case, because one of the Judgesdid not seem to have taken any part in it.
The Courts Ordinance gives a right of appeal. It is a serious matterfor an appeal to be dismissed without hearing. The petition of appeal isa document that must be stamped, but the certificate in appeal is adocument that is executed by the Secretary of the Court.
€i Together with ” in the Stamp Ordinance does not mean “ at the sametime as ”, but it means “ in addition to ”. We have to consider thepurpose of the Stamp Ordinance. It is a revenue enactment, and not one
c
I Malara cases. 203.
– 25 N. h. R. 245.
3 14 N. L. B. 225.
58
POYSER J.—Attomeu-General v. Karuiiaratne.
made for the benefit of the party respondent to the appeal. Where thestamp has been provided in time, a party should not be deprived of theright of appeal.
The word “ shall ” in the Stamp Ordinance is only directory, notimperative. It has often been interpreted as directory. One musttherefore have regard to the purpose of the enactment. If stamp is notdelivered at the same time as the petition of appeal, then party takes therisk of the stamp not being available at the time it is required.
Counsel cited Bosanquet v. Woodford ‘.
The Court should take a practical view of the case.
J. E. M. Obeyesekere, Acting D. S.-G. (with him Basnayaka, C.C.), forplaintiff, respondent.—At the date Bandara v. Baban Appu (supra) wasdecided, the Supreme Court consisted of the Chief Justice and two PuisneJudges. The Supreme Court Minutes show that when this case wasdecided all three Judges were present. It is therefore in fact a decisionof the Full Court. It must be presumed that all three Judges, who werepresent, took part in the decision. This decision is therefore bindingand cannot be overruled even by another Full Court. As regards thebinding effect of a decision of the Full Court, see Jane Nona v. Leo
Apart from Bandara v. Baban Appu (supra), there are other cases in whichthe same view was taken of the effect of this proviso. See Cornalis v.Vkku “, Sathasivan v. Cadiravel Chetty *, and Ramalingam Pillai v. Wimala-ratneIn Grindell v. Brendan”, the words ‘together with’ were inter-preted to mean ‘ at the same time as ’.
If the question were treated as res integra, the decision would turnupon whether this provision is absolute or directory only. This is aprovision as regards the time at which a certain act should be done,and it was held in the case of Barker v. Palmer’ that provisions withrespect to time are always obligatory. Counsel also referred to Howardet al. v. Bodington’ and Vaux v. Williams ‘.
September 4, 1935. Poyser J.—
. The question for determination is the correct interpretation of thefollowing proviso in part 2 of schedule B of the Stamp Ordinance,No. 22 of 1909: —
“ Provided also, that in appeals to the Supreme Court the appellantshall deliver to the Secretary of the District Court or clerk of the Courtof Requests, together with his petition of appeal, the proper stamp forthe decree or order of the Supreme Court and certificate in appeal whichmay be required for such appeal. ”
The matter first came before Garvin S.P.J. and Maartensz J.; it wasreferred by them to a Full Court. The following passages in the judg-ment of Garvin S.P.J. set out the material facts and the reasons for suchreference: —
“ This case has been set down by the Registrar for directions as towhether the appeal be listed for hearing in due course. The petition of
15 Q. B. 310, or 114 Eng. Rep. 1366.- (1936) ‘M N. L. R. 02.
s (1923) 25 N. L. R. 241.’• (185!/) 28 L. J. C. P. W.
* (1867) RamanathanReports 278.~ 118.81′ 8 Q. B. D. !).
< (inn?) 21 .V. I.. R. 93.•’ (1877) 3 P D. 203.
9 4 B. .f A. 525.
POYSEH J.—Attorney-General v. Karunaratne.
SO
appeal in the case was filed on August 13, 1934. On the 14th theProctor for the appellant tendered to the Secretary of the District Courtstamps for the certificate in appeal, the decree of the Supreme Courtin appeal and the notice of appeal. They were accepted by the Secre-tary; the other steps necessary to perfect the appeal were taken andthe record was forwarded to this Court with the Secretary’s certificateto which the necessary stamps had been affixed. Some uncertaintyappears to have arisen in view of the conflicting judgments of this Courtupon the point as to whether or not the appeal should be rejected uponthe ground that the stamps for the decree of the Supreme Court andthe certificate in appeal were not delivered to the Secretary of theDistrict Court ‘ together with ’ the petition of appeal …. ”
“ The question, it is hardly necessary to say, is one of very greatimportance and we think that the whole matter should be placed beforea Full Court for fuller consideration and determination.”
The following are the authorities above referred to. (Bandara v. BabanAppu and others ) In that case the petition of appeal was filed on July25, 1892, but the stamps for the decree of the Supreme Court and thecertificate in appeal were not furnished till the 26th. It was held thatthe stamps for the certificate in appeal and for the Supreme Court judg-ment must be supplied along with the petition of appeal; the appeal wasconsequently rejected.
This decision, according to the report, purported to be a decision of•only Burnside C.J., but as it will subsequently appear, the report iserroneous in this respect and it was in fact a decision of the FullBench.
In a latter case, Sathasivan v. Cadiravel Chetty’, this decision wastreated as a judgment of the Full Bench, but in the case of Nonai v.Appuhamy”, a case decided about two months later, Ennis A.C.J. did notconsider Bandara v. Baban Appu {supra) was a Full Bench decision andheld that the words of the proviso did not make it imperative that theappeal should be rejected if stamps are not tendered at the same time asthe petition of appeal.
The only other authority it is necessary to refer to is the case of Rama-Cingavn Pillai v. Wimalaratne *. In that case Macdonell C.J. and Dalton J.considered they were bound by Bandara v. Baban Appu (supra), as it wasa Full Bench decision.
The first point therefore to be considered is whether Bandara v. BabanAppu (supra), was in fact a Full Bench decision or only, as Ennis A.C.J.appears to consider, a two-Judge decision, for if it was the former we arebound to follow it.
For the purpose of coming to a decision on this point we examined notonly the Supreme Court minutes but also the record. From the minutesit appears that the case first came before two Judges on November 8, 1892,and was adjourned for the convenience of Counsel.
* 1 Matari! cases 303.- 21 .V. L. R. 93.
21 N. L. R. 170.
3G N. L. R. ->2.
60
The King v. Attygalle.
On November 16, 1892, the case came up again before Burnside C.J.,Lawrie J., and Withers A.P.J., a Full Bench as the Supreme Court wasthen constituted. The minutes read as follows: —
“ Appeal rejected with costs because stamps for the Supreme Court
judgment were not supplied in time. ”
The decree also sets out that the appeal came on for hearing anddeliberation on November 16, 1892, before Burnside C.J., Lawrie J., andWithers J. and decreed and ordered that the appeal filed in the action berejected with costs, stamps for the Supreme Court judgment and certificatein appeal not having been supplied at the same time.
There is therefore not the slightest doubt that Ennis A.C.J. was mis-taken and this decision was, as Macdonell C.J. held a Full Benchdecision.
It does not appear from the record or minutes which Judge gavejudgment. Possibly only Burnside C.J. did which might account forthe report in 1 Matara cases. But even if Burnside C.J. only gavejudgment the decision is still a Full Bench one and it appears to havebeen the practice at that time, in some cases at any rate, for the judg-ment of the Full Bench to be given by only one Judge. (See Perera v.Amaris Appu1.)
As therefore the case of.Bandara v. Baban Appu (supra) is binding onus, this appeal must be rejected with costs.
I would however add that, if such case was not binding on us, I would,for the reasons stated by Macdonell C.J. in Rauialingam Pillai v. Wimala-ratne (supra), have rejected the appeal.
Koch J.—I agree.
Sokrtsz A.J.—I agree.
Appeal rejected.