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Present: Fisher C. J., Garvin, Lyall Grant, Drieberg,and Akbar JJ.
BOYAGODA v. MENDIS e< oZ.182—D. C. Colombo, 19,574.
Appeal—Time limit—Period of ten days—Exclusion of the last day—Civil Procedure Code, a. 754.
Where a judgment sought to be appealed from -was deliveredon August 2, and a petition of appeal was presented on August 16,there being an intervention of two Sundays and a public holiday,—
Held, that the petition of appeal had been filed within theperiod of time prescribed by section 754 of the Civil ProcedureCode.
Where an enactment concerning procedure has received a certaininterpretation, which has been recognized by the Courts for a longperiod of years, the practice based upon' such interpretation shouldbe followed.
/^ASE referred under section 54a of the Courts Ordinance for^ decision by a Ben.ch of Five Judges.
The question involved was whether a petition of appeal had beenfiled within the period of time prescribed by section 754 of the CivilProcedure Code. The section runs as follows:—
The petition of appeal shall be presented to the Court of firstinstance for this purpose by the. party appellant or hisProctor within a period of ten days, or where such Courtis a Court of Requests, seven days, from the date whenthe decree or order appealed against was pronounced,exclusive of the day of that date itself and of the daywhen the petition is presented and of Sundays and phblicholidays, and the Court to which the petition is sopresented shall receive it and deal with it 'as hereinafterprovided.
The judgment sought to be appealed against was delivered onAugust 2 and the petition of appeal was presented on August 16.August 15 was a public holiday and there were two Sundaysintervening.
W. Jayewardene, K.C. (with Koch, and Ameresekere), forrespondent, raised the objection.
Under section 754 the appeal has to be filed “ within ” ten days,
exclusive of the day of filing of the appeal.
11—xxx25J. X. A 9487 (11/46)
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Buies 8 (1), (2), (3) of the Buies and Orders under the Charter of1833 employed the words “ in which ” ; and by the use of the word“ within ” bi section 754 the Legislature merely used other words toconvey the same idea.
When the word “ within ” was used, it was not quite certainwhether the two terminal days were excluded or included. It wasin that state that the section was framed. *
The effect of the section, in practice, is to give so many “ clear ”days.1
“ Within ” excludes the first day and includes the last day,subject to any exception in the Statute.2
As Sundays and public holidays are not to be counted, they arenot “ days ” within the meaning of the section.
This section has been so interpreted by authoritative usage, andusage has the authority of law. Long established usage cannot belightly overruled. *
The section must be so construed that all the words are giventheir full meaning. The interpretation placed upon it in the abovetwo cases makes it possible to do so.
The judgment of this Court in S. C. 325, D. C. Matara, 2,288(S. C. Minutes of February 28, 1929), defeats the intention of theLegislature and gives no effect to a part of the section.
II. V. Perera, for the appellant, adopted the authorities citedby Counsel for respondent. Counsel submitted, further, thatbecause the section excludes the day of the filing of the petition ofappeal, the legal effect is that the filing of the petition at anymoment of the eleventh day, is referred back to the last moment ofthe tenth day and so it is filed “ within ” the ten days. The day ofthe actual filing of the appeal has no time value in law.
March 18,1929. Fisher C.J.—
The question we are called upon to decide arises from a preliminaryobjection to the hearing of an appeal. The objection is based on thesecond paragraph of section 754 of the Civil Procedure Code, whichprovides, so far as is necessary to set it out, that “ The petition ofappeal shall be presented within a period of ten days ….from the date when the decree or order appealed against waspronounced, exclusive of the day of that date itself and of the daywhen the petition is presented and of Sundays and publicholidays …. ”
The judgment sought to be appealed against was pronounced onThursday, August 2, and the petition of appeal was presented onThursday, August 16. Owing to the intervention of two Sundays
2 C. L. it. 96 (Babapulle v. Domingo) ; S. C. 42S, C. R. Kegalla, 6812(S. C. Mine, of March 11, 1907).
(1914) Yearly Practice, p. 1031.
2 27 Hale., e. 266.
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the tenth day of the period prescribed by the section was Tuesday, 1929..August 14. August 15 was a public holiday, and on the next day j^gHEBc.J.
the first available day after the date of theprescribed, the petition Was presented.
If we were called upon to decide this question merely from a Mentisconsideration of what is the true construction of the words inquestion I should feel constrained to allow the preliminary objection.
I do not think that the words “ exclusive of the day of that dateitself ” which are relied upon to modify what on the face of it is -theplain meaning of the words “within a period of ten days ” can havethe effect contended for. It is contended that the effect of thosewords is that notwithstanding the express direction tHatthepetition-of appeal shall be presented within a period of ten days this provisionmust be read as permitting the presentation of the petition on theday after the expiration of the period, or on the first available dayafter the expiration of the period. The effect Of this contentionwould be that the day, on which the thing which is directed to bedone within a period of ten days is done, is not to count in reckoningthe period. That would, in my opinion, make the provision self-contradictory, and if the intention of the Legislature was that thewords should be construed so as to expand the period of ten daysin such a way that something done after the period had expiredwas to be deemed to have been done within it, it has failed to giveexpression to its intention. There may be ways of giving effect tothe words relied upon without giving them the effect which iscontended for, but any such interpretation could not be in a directionwhich would assist the contention which has been put forward.
In my opinion the true construction of the paragraph involves thatonce the period of ten days has begun to run, the exclusions must belimited to days which intervene during the currency of the periodand that the presentation of a petition of appeal when that periodhas come to an end, is out of time.
There is, however, another aspect of the question which has beenbrought before us on the hearing of this reference. It is quite clear >that for many years it has been the practice of the District Courtsto receive petitions of appeal and to treat them without questionas if they had been presented in accordance with the terms of thesection when they are presented on the day after the expiration ofthe ten days, or on the first available day for presenting them afterthe expiration of the ten days. A case decided in 1892 was broughtto our notice (Babapulle v. Domingo1), where in applying the sectionin question to a matter arising under section 8 of the OrdinanceNo. 11 of 1882 Mr. Justice Lawrie, with the approval of Mr. JusticeWithers, gave a decision recognizing this practice. ' It was furtherrecognized and endorsed by Chief Justice Wood Renton, then
1 2 C. L. R. 96
expiration of the period
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Mr. Justice Woocl Benton, in on unreported case S. C. 428—C. R.Kegalla, No. 6,812 (S. C. Minutes of March 11,1907). Under thesecircumstances another consideration arises, namely, whether whereas here, an enactment concerning procedure has been acted uponfor a long period of years', probably ever since the enactment cameinto force, in accordance with a construction which has beenaccepted and recognized by judicial authority this Court shouldhold that a different construction ought now to be put upon the'enactment. There is the authority of a decision of the PrivyCouncil for saying that this should not be done. In the case ofMigneault v. Malo1 it was held by the Privy Council that inasmuchas for a long period of years the Canadian Courts had acted on aconstruction of a law relating to jurisdiction which the learnedJudges thought was not the true construction of the law “ theyought not to advise Her Majesty that a different constructionought now to be- put on the law. ” In my opinion, especially havingregard to the fact that this is a question which arises in connectionwith a purely technical matter of procedure, we should follow thecourse adopted by the Privy Council.
In my opinion, therefore, on that ground the preliminary objectionshould be overruled, and I would make no order as to the costs ofthe hearing before us.
The question referred " under section 54a of the CourtsOrdinance for determination by a Bench of Five Judges relates to apreliminary objection to the hearing of Appeal No. 182, DistrictCourt (Interlocutory), Colombo, No. 19,574, upon the ground thatthe petition of appeal in that case was not presented to the Court offirst instance within the period of time prescribed by section 754 ofthe Civil Procedure Code. That section is as follows :—
The petition of appeal shall be presented to the Court-of firstinstance for this purpose by the party appellant or hisProctor within a period of ten days, or where such Courtis a Court of Requests, seven days, from the date when thedecree or order appealed against was pronounced, exclusiveof the day of that date itself and of the day when thepetition is presented and of Sundays and public holidays,and the Court to which the petition is so presented shallreceive it and deal with it as hereinafter provided. Ifthose conditions are not fulfilled it shall refuse to receive it.
The party appellant is required to file his petition of appealwithin a period of ten days from the date when the order or decreeappealed against was pronounced. The Legislature has furtherprovided that, in the ascertainment of that period the day upon1 (1872) L. R. 4, P. C. 123.
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. which the judgment was pronounced shall be excluded, and thatthere shall also be excluded the day when the petition is presentedand Sundays, and public holidays. The first day to be reckoned inascertaining this period of ten days is not the day of the judgmentbut the first day after the judgment, and the second day to be soreckoned is the second day after the judgment; assuming that thenext day is Sunday, the provisions of law to which I have drawnattention require that it should be excluded from the reckoning.The third day, therefore, of the period of ten days would be thefourth day after the judgment, and in this way the tenth day isreached.
In the particular Case under consideration judgment was deliveredoh the 2nd of the month; the 3rd of the month was, therefore,the first day of this period Ipf ten days, the 4th of the month wasthe second day. The 5th was a Sunday and. consequently must beexcluded ; so tha^tBe 6th of the month was the third day, and inthis way we finff.tfi.at the eighth day of the period was the 11thof the month,, *The nejpt day was a Sunday ; the ninth day of theperiod was, therefore', tl^e 13th of the month, and the 14thof the month the tenth 'day. The day following was a publicholiday and the petition of appeal was actually filed on the16th. The period of ten days in this particular case, therefore,is made up of the|ollowing days:—3rd, 4th, 6th, 7th, 8th, 9th, 10th,11th, 13th, and lith.^l It is urged, however, that a petition ofappeal filed on the 16th is in time, for the reason that thewords “ exclusive of the day when the petition is presented ” havethe effect of giving a party appellant the right to file his petitionupon the day following the tenth day. That day would be the15th, but inasmuch as in, this instance the fifteenth day wasa public holiday, the act done on the sixteenth.day was for allpurposes as effective as if it had been done on the 15th.
The main contention is that section 754 does in effect give anappellant ten clear days for the filing of his petition. It is wellsettled law that in a case where a number of clear days is allowedfor the doing of an act, that act is done in time if it is done on theday next after the expiry of the last day—the effect being to givean additional day for the performance of the act. And on thisbasis it is urged that a petition of appeal presented to Court on theeleventh day is in time.
I. am unable to place such a construction upon the language ofsection 754, which does not give ten clear days in terms, but on thecontrary expressly requires that the petition shall be presentedwithin a period of ten (not eleven) days. The circumstance thatthe day when the petition is presented is one of . the days whioh thesection declares shall be excluded in computing the period of tendays is the sole foundation for the contention.
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If as is suggested, it was the intention of the Legislature to giveten dear days, it seems to me that such an intention is not expressedin the language it has used. It is quite possible to give effect to thewords “ exclusive . . . . . of the day when the petition ispresented. ” A petition of appeal presented on any day before thetenth day is reached in the ascertainment of the period 'can beexcluded, though it is difficult to see what practical advantagethat can be, since if the petition be filed on the tenth or any daybefore that day is within the period prescribed.
In regard to a petition filed after the period of ten days,.e.g., on the eleventh or some subsequent day, the words“exclusive …. of the day when the petition is presented ”can be of no avail for it is impossible to exclude in the ascertain-ment of a period of ten days from a specified event a day which hadnot come into existence till that period had expired, even as it isimpossible to Exclude from a defined area that which is not withinit. Once the tenth day is reached, computing from*the day followingthe' judgment after excluding the days, which are required to beexcluded, as they occur in the course of the reckoning, no furtherexclusion is possible.
Where the object and intention of the Legislature has-beenclearly manifested in an enactment, but the language of certain ofits provisions creates difficulty in giving effect to that intention, ithas been found possible to give the language a special interpretationother than its ordinary meaning so that the intention of theLegislature may be carried into effect.
This is not such a case. We have here a single section whichdoes^nbt clearly manifest the intention of the Legislature and noother indication of its intention. If we are to indulge in conjectureit is possible to ascribe other intentions to the Legislature than theone suggested. In my judgment the correct construction of thesection is that given to it by Fisher C. J. and Akbar J. in the case of,Deonis v. Thiselhamy.1
But on the other hand there can be no question that, for a thirdof a century and more it has been the practice to treat an appeal .as in order if it is presented on the day after the expiration of theten days, or if that day be a Sunday or a public holiday on the firstavailable day thereafter. It is suggested that this practice datesback to the days when the procedure in our Civil Court was regulatedby rules and order!. In 1892 soon after the Civil Procedure Codecame into operation, the matter appears to have been considered bythe Supreme Court in the case of Babapulle v. Domingo2 -when,; aBench of two Judges delivered a judgment which recognizes ’apdapproves of this practice. In the year 1907, the point appeals tohave been expressly taken before Wood Renton C.J. in S. G.No.- 428,
1 S. C. No. 325, D. C. Matara, No. 2,288; S. C. Mint., February 28, 1929*
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R., Kegalla, No. 6,812 (S_ C. Mins, of March 11,1907), who took the'same view. This is, therefore, a case in which a practice based upona certain interpretation of this section has been in existence for avery long period of years, and has been approved and been recognizedby this Court so far back as 1892 and subsequently in 1907. Thepoint in itself is a highly technical one, though its consequences are' far-reaching. In the special circumstances of this case I prefer toadopt the course taken in MigneauU v. Malo1 and hold that weshould not now give to the section a different interpretation to thatwhich it has borne even though our own opinion is that thatinterpretation is incorrect.
1 agree with the Chief Justice, whose judgment I have just perused.Lyall G-rant J.—
On the interpretation of section 754 of the Civil Procedure CodeI incline to the view taken by Lawrie J. and by Wood Renton J.that the intention of the Legislature was to allow ten clear days,exclusive of Sundays and public holidays, between the date of thedecree and the day of presenting the petition of appeal.
I agree, however, with the rest of the Court that this intention isnot clearly expressed and that this reading of the section fails togive full effect to the word “ within ”.
The alternative reading seems to me not to give effect to thewords “ exclusive of the day when the petition is presented. ”It is difficult to understand why these words were inserted, unless itwas for the purpose of allowing an extra day.
I prefer, however, to rest my judgment on the ground proposed bymy Lord the Chief Justice and agreed to by the rest of the Court,that there has been a contemporanea expositio of the meaning ofthe section by a long continued and apparently unbroken practicewhich has received some judicial sanction.(
Driebebg J.— •
I agree with the judgment of my Lord the Chief Justice.
I agree with the judgment of my Lord the Chief Justice. 1
1 (1S72) L. if. 4, P. C. 123.
BOYAGODA v. MENDIS et al