037-NLR-NLR-V-71-C.-SANDANAM-Petitioner-and-M.-I.-JAMALDEEN-Respondent.pdf
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H. N. Q. FERNANDO. C.J.—Sandanam v. Jamaldeen
1968Present: H. N. 6. Fernando, CJ., and Slrimane. J.
C. SANDANAM, Petitioner, and M. I. JAMALDEEN, Respondent
•S’. C. 93/67—Application for conditional leave to appeal to the Privy Councilin S. C. 215/63—D. C. Kandy. 6642
Privy Council—Application for conditional leave to appeal—Deficiency in stamping •Curable defect—Appeals (Privy Council) Ordinance (Cap. 100), Schedule,Buie 2—Stamp Ordinance, »s. 7 (2). 14. 41–Civil Procedure Code, sb. 40 (2) (h).755.
. A deficiency, arising from a bona tide error, in the stamping of anapplication for conditional leave to appeal to the I’rivy Council in a civil caseis not a fatal defect. The deficiency may he supplied upon an order of theCourt.
Usoof l'. Xadoi'uj'tlt Ohcllin'r (.">8 X. L. It. -130) nut followed.
Application tor conditional leave lo appeal to the Privy Council.
11. IK. Juyetcurdeue. Q.C., with X. K. M. Dalutvatte, for the Plaintitf-Pctitioncr-Appellant.
C. Ramjanalhatt, Q.C., with M. T. M. Sivardee.it and M. S. Azeez, forthe Defendarit-Ronpondent.
Cur. adv. vull.
September 19, 196K. H. N. G. Fernando, C.J.—
This is an application for leave to appeal to the Privy Council from ajudgment of this Court in a civil action. The action was one for theconveyance to the plaintiff of the interests allotted to the defendants in aformer partition action. For reasons which it is not necessary to discusshere, the value of the subject-matter involved in the proposed appeal isiiigher than the amount at which the action was valued at the time of itsinstitution. The only objection of substance which has been taken by therespondents to the present application has been that the application forleave to appeal was insufficiently stamped. The appellant does not nowcontest the fact of insufficient stamping, but it is perfectly dear that thisarose because of a bona fide error as to the amount of the stamp dutyproperly payable.
The respondents have quite correctly relied on the decision of thisCourt in Usoof v. Nadarajah Chettiar,1 rejecting an applicationfor conditional leave in a case where the application was insufficientlystamped, and where the deficiency was not supplied within theperiod of 30 days specified in Rule 2 of the Schedule to the Appeals(Privy Council) Ordinance (Cap. 100). Although that decision has been
1 (1957) 68 N. L. R. 486.
16 -PP 006137 (98/08) U/W ^
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H. N. G. FERNANDO, C.J.—Sandatiam v. Jainaldeeu
subsequently followed, I regret that I have to disagree with it because inmy opinion that decision was reached without consideration of relevantmatters which have come to light during the argument of the instantcase.
A very early case [regarding j the^ question of stamping in appealproceedings was that of Cornalie v. Uklcuwal. In that case, apetition of appeal to the Supreme Court from the judgment anddecree of a lower civil Court had been duly stamped, but there had been afailure to supply the stamps required to be furnished for the judgment ofthe Supreme Court in appeal and for the certificate in appeal. The Courtin that case observed that the omission to furnish stamps for the judgmentin appeal and for the certificate in appeal would cause injustice to therespondent by his being kept out of his judgment. The decision gaveeffect to a specific statutory requirement as to the time of the deliveryof the proper stamps which must accompany a petition of appeal to theSupreme Court. The requirement that such stamps be furnished togetheririth the petition of appeal is now specified in the Schedule to the StampOrdinance (Vol. VIII at p. 755).
In Salgado v. Peiris2, a petition of appeal to the Supreme Courtbore no stamp at all, and the appeal was rejected on that ground,the Court holding that it had never been the practice to allow apetition of appeal to be stamped subsequent to the date of its presentation.This was a decision of the Full Bench, and it must therefore be regardedas settled law that a petition of appeal to Ike Supreme Court will be rejectedif it is not sufficiently stamped on the day of its presentation. Similarly,the 1867 decision was followed by a Full Bench in Bandara v. BabunAppu3, and accordingly a petition of appeal to the Supreme Courtmust be rejected if the proper stamps for the judgment and certificatein appeal are not furnished at the time of the presentation of thepetition.
The legal ground for the decision in Salgado v. Peine was subsequentlyexplained by Macdonell C. J. in British Ceylon Corporation v. The UnitedShipping Board*. He referred to s. 755 of the Civil Procedure Code,which specifies the two modes of preferring an appeal to the SupremeCourt, either that a petition of appeal is drawn by an Advocateor Proctor, or that a party states his grounds of appeal to the Secretaryor Clerk of the original Court, which grounds are taken down by thatofficer in the form of a petition of appeal. But this second mode is onlyavailable to a party upon his producing the proper stamp for the petitionof appeal. Macdonell C. J., pointed out that since s. 755 requires a partyto produce the proper stamp if he wishes to perfer his appeal by thissecond mode, the section implicitly requires that a petition of appealdrafted by an Advocate or Proctor must be properly stamped at the timeof presentation. The same point was made, though not so clearly, byGrenier J. when he referred to s. 755 in his judgment in Salgado v. Peiris.
• (1892)JMatara Oases 203.(1934) 36 N. L. B. 223.
1 (1867) Ram. 278.
* (1909) 12 N. L. R. 379.
H. N. G. FERNANDO, C.J.—Sandanam «. Jamaldeen
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It will be seen therefore that there are express statutory provisionswhich prescribe the time for due stamping of petitions of appeal to theSupreme Court, and the time for the famishing of the proper stamps toaccompany such petitions.
It is useful now to coiisider the case of a plaint which is unstamped, orinsufficiently stamped. S. 36 of the Civil Procedure Code (Subsection 2
) requires the Court to reject a plaint if it is “ written on paperinsufficiently stamped, and the plaintiff, on being required by the Courttosupply the requisite stamps within a time to be fixed by the Court, failsto do so ”. This means that the Court is bound to afford to the plaintiffan opportunity to supply the deficiency in stamping. There is the highauthority of Pereira J. for the proposition that if the Court does accept aplaint which is insufficiently stamped, the insufficiency will not be aground on which the opposing party can ask for a dismissal ofthe plaintiff’s action. I cite from the judgment in Jayawickremci v.Amarasuriya 1:—-
“ So that when, iu the case of a plaint under section 46 of the Codeand in the case of an answer under section 77, the Judge does not rejectthe pleading, but accepts it, the presumption is that he has adjudicatedin favour of t he party who has tendered the document the question ofthe sufficiency of the stamp thereon , and I doubt that the adjudicationin such a case can be interfered with by anybody. In the case,however, of a plaint or answer being accepted per incuriatn, that is tosay, as the result of an inadvertent omission on the part of the Court toconsider the question of the sufficiency of the stamp thereon, it may bethat before any step in the regular course of procedure is taken by theopposite party the Court may return the pleading to be properlystamped : but this question need not be considered on this appeal,because we have no information from the District Judge that the plaintin this case was accepted by him per incuriam, and no order returningthe plaint was, in fact, made before the filing of the answer. Whena Judge, having considered the question of the sufficiency of stampduty, has accepted a plaint or answer, or has accepted it having inadver-tently omitted to consider the question, the remedy, if indeed anyexists, can only be by means of such action as the Attorney-General,as representing the Crown, to which all stamp duties are a debt, ma ybe deemed to be entitled to take. It will be embarrassing to both theparties to any action and lead to disastrous results, if for instance, ata very late stage of the action a pleading can be thrown out for defaultof either party to make good any deficiency in stamp duty. Anyway,the sufficiency of the stamp on a plaint cannot be called in question asa matter of defence in an answer, any more than the fact that theplaint has not been ‘ distinctly written on good and suitable paperas required by section 40 of the Code.”
1 (1914) 17 N. L. R. 174.
H. N. G. FERNANDO, C.J.—Sandanam v. Jamaldeen
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Pereira J. pointed out that the only provision of law in force relatingto stamps on plaints appears to be s. 46, and his conclusion clearly wasthat a plaint cannot be rejected on the ground of insufficient stampingexcept in the manner and at the stage specified in that section. I findmyself in respectful agreement with the principle here enunciated thatthe right of a party to maintain a proceeding cannot be denied to theparty on the ground of insufficient stamping of a document, unless thelaw provides for such a denial. That principle was not violated in thedecisions regarding the stamping of petitions of appeal to the SupremeCourt because statutory provisions explicitly or implicitly regulate thetime of due stamping.
The matter of the stamping of applications for leave to appeal to thePrivy Council was considered in the case of Vsoof v. Nadarajah Chettiar(supra). Weerasooriya J., in holding that a deficiency in the stampingof such an application camiot be supplied after the presentation ofthe application, appears to have thought that the decisions regardingpetitions of appeal to the Supreme Court must apply also in the case ofsuch applications. With respect, the judgment did not take account ofthe existence of provisions of law which are applicable to appeals to thisCourt, and which justify the rejection of such appeals on the ground ofdeficiencies in stamps. Neither that judgment, nor the later one in thecase of Thenmvara v. Thenuwara 1, gave consideration to the questionwhether there is any statutory provision, applicable to appeals to thePrivy Council which resembles the statutory provisions (in s. 755 of the.Code and in the schedule to the Stamp Ordinance) relating to stamping incases of appeals to the Supreme Court. That being so, it is open to meto consider afresh the point whether a deficiency in the stamping of anapplication for leave to appeal to the Privy Council is curable.
There is in fact no special statutory provision concerning the time ofstamping of such an application.
I need only consider, therefore, the general provisions of the StampOrdinance. Section 14 provides that ” all instruments chargeable withduty and executed by any person in Ceylon shall be stamped before or atthe time of execution ”, and s. 41 provides that no instrumentchargeable with duty shall be acted upon, registered or authenticated ”by any public officer “ unless such instrument is duly stamped ”. Theseprovisions apply to all applications (e. g. for summons, for writ ofExecution, for service of interrogatories) made in Court proceedings. Ifthen any such application to a Court is in fact stamped, but insufficientlystamped, I much doubt whether a breach of s. 14 is thereby established ;if stamps, though of insufficient value, are affixed at the time whensuch an application is signed by a Proctor it cannot be said that theinstrument was not stamped at that time. Section 14 does not provide,(as does s. 7 (2) in a different context), that an insufficiently stampedinstrument is deemed to be unstamped.
j {I960) 62 N. L. R. *01.
H. N. G. FERNANDO, C.J.—<S'andanam v. Jamaldeen
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Section 41 of the Stamp Ordinance precludes a Court from acting uponan insufficiently stamped application. But must the Secretary ofthe Court neoessarily reject such an application when it is filed ? Section7 provides that a stamp must be cancelled at the time when it is affixedon an instrument, and if the deficiency in stamping cannot be suppliedby affixing additional stamps, the consequence will be that the value ofthe original stamps is lost to the party and fortuitously gained by theState. Taxing Statutes cannot in my opinion be interpreted in a mannerso unfavourable to the tax-payer. The Secretary of the Court is anofficer referred to in s. 41, and he is constituted an agent of the revenueauthorities for the purpose of the collection of the proper stamp duties.He must not act upon an insufficiently stamped application. But s. 41does not declare that such an application is valueless and must berejected as such. Would hot the proper course be for the Secretary insteadto call upon the party to supply the deficiency in stamps, and if thedeficiency is in fact supplied, would not the Court thereafter act upon theapplication ? I am satisfied, on the authority of Jayewicbrema v. Amara-sooriya, that this course should be adopted, for there would otherwiseensue “ disastrous results ” of the nature contemplated by Pereira J. or amiscarriage of justice as contemplated by Lord Goddard in the judgmentof the Privy Council in Karunapejjalage Bilindi v. Wdlawa AttadassiThero1.
It is useful to consider what the Legislature intended by the provision ins. 41 that an instrument, particularly an application in a civil proceeding,should not be acted upon. In one sense, the petition for leave toappeal in this case was in fact acted upon several weeks ago, when theRegistrar accepted it and when it was considered by this Court whichissued notice thereof to the respondents. Such a situation closelyresembles that which Pereira J. envisaged in the judgment already cited :
whenthe Judge does not reject the pleading, but accepts it, the
presumption is that he has adjudicated in favour of the party who hastendered the document the question of the sufficiency of the stampthereon, and I doubt whether the adjudication in such a case can beinterfered with by anybody ". I do not need, however, to go so far as tohold that this Court has no power to call upon the petitioner in thiscase now to supply the deficiency in stamps, although the judgment ofPereira J. does support even that conclusion.
Alternatively, if the petition in this case has not thus far been actedupon, then the point of time at which the Court will act upon the petitionfor leave is the time when the Court grants the leave. If this beso, s. 41 prevents the Court from granting the leave upon apetition insufficiently stomped. But if the Court now orders the
» {19*6) 47 N. L. R. 7.
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H. N. G. FERNANDO, C.J.—Sandaman v. Jamaldeen
deficiency to be supplied, and it is supplied, then the Court can thereafterduly act upon a sufficiently stamped petition and grant the leaveaccordingly.
I must point out also that this Court, in entertaining applications forleave to appeal to the Privy Council, is in substance acting as a delegateof the Privy Council. That being so, I think it proper to heed theobservations made by Lord Goddard in the case of KarunapejjalageBilindi v. WeUaiva Attadassi Thtro (supra) :—
“their Lordships do not propose to express any opinion as to
whether it is open to the Supreme Court, once the petition has beenaccepted by the Court of first instance, to take or give effect to anobjection as to the sufficiency of the stamp, nor as to whether by thecombined effect of ss. 756 and 839 it may not be possible for a bona fidemistake as to the stamp required to be remedied and thus perhapsavoid a miscarriage of justice. They say no more than that both pointsappear susceptible of considerable argument and that it. would be anunfortunate and probably unintended result of the Stamp Ordinanceif a litigant should be debarred from an appeal on a ground which isfrom a practical point of view capable of easy remedy without injusticeto anyone.”
These observations, though made with reference to insufficientstamping of petitions of appeal to the Supreme Court, are a strongindication of the attitude which their Lordships would wish tliis Court toadopt in the case of proposed appeals to the Judicial Committee. Theylead me to the opinion that the somewhat technical objection taken inthis case should not stand in the way of a conclusion which will furtherthe ends of justice . I
I hold for these reasons that the considerations which require or justifythe rejection, on the ground of insufficient stamping, of a petition ofappeal to the Supreme Court, do not apply in the case of applications forleave to appeal to the Privy Council. This for the reason that there isnot, in the latter case, any special provision of law which expressly or byimplication prevents a deficiency in the stamping of applications for suchleave from being supplied upon an order of the Court. I direct the present. petitioner to supply the deficiency in stamps before 1st October 1968, andmake order that the application for conditional leave be allowed if thedeficiency is duly supplied.
I make no order for costs.
SmiMANE, J.—I agree.
Application allowed conditionally.