022-NLR-NLR-V-40-BALASUBRAMANIAN-PILLAI-v.-VALLIAPA-CHETTIAR.pdf
HEARNE J.—Balasubramanian Pillat v. Valliapa Chettiar.
89
1938Present: Hearne J. and Wijeyewardene AJ.
BALASUBRAMANIAN PILLAI v. VALLIAPA CHETTIAR.
Application for Conditional Leave to Appeal tothe Privy Council.
286—D. C. Colombo, 4,520.
Privy Council—Application for conditional leave—Notice of intended applicationWhen it should be given—Appeal (Privy Council) Ordinance, rule 2,schedule. 1.
Where an application for conditional leave is made under rule 2, schedule Iof Appeal (Privy Council) Ordinance, No. 31 of 1909, it is not imperativethat the respondent should receive notice of the intended applicationbefore it is filed.
T
HIS was an application for conditional leave to appeal to the PrivyCouncil.
H. V. Perera, K.C. (with him S. Subramaniam), for the petitioner.
E. F. N. Gratiaen (with him J. A. T. Perera), for the respondent..
Cur. adv. vult.
August 31, 1938. Hearne J.—
This is an application for conditionial leave to appeal to the PrivyCouncil.
Judgment was entered by this Court on May 27, 1938, in S. C. 286 (F)D. C. Colombo, 4,520; the judgment was a final judgment and thematter in dispute on appeal is over Rs. 5,000 in value.
Two communications which, it is claimed, gave the opposite partynotice of the applicant’s intention to apply to this Court for conditionalleave were sent to the respondent.
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HE ARNE J.—Balasubramanian Pillai v. Valliapa Chettiar.
The first notice (A) was sent by registered express delivery post onMay 30, 1938, and was' delivered to the respondent on the same day.
It is, in my opinion, doubtful that this notice can be construed as a noticeof intention to apply to this Court for conditional leave, but I do notdecide the question as, in the view I take of the second notice, it isunnecessary. '
The second notice (D) which admittedly was a notice of intention toapply to this Court for conditional leave was posted on June 8, 1938,and addressed to the respondent at his address at 295, Galle road, Colpetty.The respondent left Colombo on June 9, at 4 a.m., and received D onJune 10, on his return. The notice was presumably delivered by postat his house on June 9. On the evening of June 8 the applicant filedhis application for conditional leave.
The notice D was admittedly posted and. received by the respondentwithin 14 days from the date of the judgment appealed from, but it isargued that as the respondent did not receive the notice before theapplicant filed his application, the provisions of Rule 2 of Schedule I.of the relevant Ordinance have not been complied with (Vol. 4,p. 422).
The Rule is as follows :—“ Application to the Court for leave to appealshall be made by petition within thirty days from the date of the judgmentto be appealed from, and the applicant shall, within fourteen days fromthe date of such judgment, give the opposite party notice of such intendedapplication…
In Wijeyesekere v. Corea1, Drieberg J. said, “The form of noticeadopted in practice includes an intimation of the day on which thepetitioner will move in the Supreme Court, and this is absolutelynecessary in order that the respondent may be present or arrange for hisrepresentation on the day stated or any other day to which the hearingis adjourned ”.
Poyser S.P.J. and Koch J. dissented from this view in Pathmanathanv. Imperial Bank of India -. “ Apart from the fact ” Poyser J. said“ that the rule does not specifically state that the day shall be namedupon which the application will . be made, in pratice it would beimpracticable to name any such day. The day on which the applicationwill be heard would be decided by the Registrar in accordance with theusual practice. Further in my experience the practice in this courthas been for the applicant to apply in the first place “ex parte" for anotice of his application to be served on the respondent and that wouldappear to be the most convenient practice ”.
It would appear from this passage in Poyser J’s judgment which Irespectfully adopt that the object of the notice required to be given bythe applicant to the respondent is in practice not to give him an oppor-tunity of appearing when' mere notice to the opposite party is in thefirst place asked for in Court. He will have the opportunity of raisingwhatever objections he has when he is before the Court after notice has
> {1931) 33 N. L. if. 349.
– (1927) 39 N. L. R. 103.
WUIYEWAHDENE A-J.—BdUuubramanian Pillai v. ValUapa Chettiar. 91
been served on him. It is I think merely to apprise him within a reason-able time of the fact that the litigation is not at an end, and that theunsuccessful party has the intention of applying to the Court for leaveto take the subject-matter in dispute between the parties to the PrivyCouncil.
Apart from this I would not, in the absence of express language to thateffect, construe Rule 2 to mean that there must be an interval of timebetween the effectuation of service of the notice of intention to applyfor leave and the filing of an application in that behalf.
In the circumstances of this case, as application for leave to appealwas made within 30 days and notice of intention to apply to the Courtfor leave was posted- to and received by the respondent within 14 days,I am of the opinion that the applicant has complied with the provisionsof Rule 2.
Leave to appeal will therefore be granted subject to the usual conditions.
WlJEYEWARDENE A.J.
In this case the plaintiff has made an application for conditionalleave to appeal to the Privy Council from a judgment of this Courtdelivered on May 27, 1938.
On June 8, 1938, the plaintiff’s Proctor sent by post a letter to thedefendant intimating to him the plaintiff’s intention to appeal to thePrivy Council and forwarded with the letter^ a copy of the application■frhich the plaintiff intended to file in this Court.
On the same day, after posting the letter to the defendant, the plaintiffsProctor filed the application in the Supreme Court Registry. Thedefendant received the letter and the copy of the application on June 10,1938.
The defendant’s Counsel objects to this Court entertaining the appli-cation on the ground that the notice of the application was received bythe defendant after the application was, in fact, filed in the Registry.He argues that the provisions of Rule 2 in Schedule I. to the Appeals(Privy Council) Ordinance require that the party noticed should receivenotice of an intended application and not of an application already filedin Court.
* The rule in question reads:—Application to Court for leave to appeal• shall be made by petition within thirty days from the date of the judgmentto be appealed from, and the applicant shall, within fourteen days fromthe date of such judgment, give the opposite party notice of such intendedapplication.
It is argued that the Rule speaks of notice of an intended applicationbeing given and ntit of such notice being issued and that therefore, at thetime the notice is received by the opposite party, the applicant shouldmerely have an intention of making an application, and should nothave carried such intention into effect by making the application.
In my opinion this contention of the defendant’s counsel fails to givefull effect to the words “ the applicant should give notice ”. The givingof a notice must necessarily involve the sending of a notice whichultimately reaches the party to be noticed. .The action involved ingiving notice must be considered with reference to the applicant who
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FERNANDO A.J.—Golagoda v. Mohideen.
gives the notice and not with reference to the opposite party who receivessuch notice. It appears to me therefore that the material point of timebefore which the application shall not be made is when the applicantgives notice or in other words when the applicant sends notice. Anapplicant who sends a notice and then files his application before thenotice reaches the opposite party is an applicant who gives notice of hisintended application for at the time he sent the notice he had not madethe application but had only formed the intention of making such anapplication.
The plaintiff has, in my opinion, complied with the requirements ofRule 2 and leave to appeal will be therefore granted to him, subjectto the usual conditions. The applicant is entitled to the costs of thisapplication.