Sajeewa alias Ukkuwa and others v The Attorney-General
(Hokandara Case) (Shlrani A. Bandaranayake, J.)
CINEMAS LIMITEDCOURT OF APPEALAMARATUNGA, J.
C. KANDY 2365MAY 13, 2003SEPTEMBER 3, 2003
Civil Procedure Code – Section 754(4), section 757 (1) – 14 day period -Computation – Interpretation Ordinance sections 8(1) & 8 (5)
The Leave to Appeal Application was filed on Monday, the 17th day. Since the14th day is a Friday and the 15th a Saturday, not excluded by section 757(1)should the petitioner have filed the Leave to Appeal Application on Friday the14th. The defendant-respondent contends that the Application be dismissed inlimine.
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In terms of section 757(1), a Leave to Appeal Application has to be filedwithin 14 days of the Order, in computing the period of 14 days, the dateof the Order, all Sundays and public holidays and the date on which thePetition is filed have to be excluded.
By virtue of the provisions of the Holidays Act, Saturdays are non workingdays on which the Courts are closed. If the last days falls on a Saturday,the Appeal could be lodged on the next Monday (working day) – section8(1) Interpretation Ordinance.
In considering whether the Application has been filed within time, Courthas to take into consideration section 8(1) along with section 757(1) of theCode.
Section 757(1) does not stand alone; it is supplemented by the Rule insection 8(1).
Per Amaratunga, J.,
“Method of computation set out in section 757(1) of the Code is similar tothat contained in section 754(4), therefore the decision in Selenchina’scase and Charlet Nona’s case are good guides when one has to decidewhether an application filed under section 757(1) is within time.”
APPLICATION for Leave to Appeal from an Order of the District Court of
Kandy – Preliminary Objection.
Cases referred to:
V.P. Perera v A.L.M. Laffir – CA 208/08 (f) – CAM of 19.10.90(distinguished)
Silva v Sankaran – 2002 – 2 SLR 209 (distinguished)
Selenchina v Mohamed Marikkar and others – 3 Sri LR 100 at 102(followed)
Sri Lanka State Trading (Consolidated Exports) Corporation vDharmadasa – 1987 – 2 Sri LR 235 (not followed)
Charlet Nona v Babun Singho – 2000 – 3 Sri LR 149 (followed)
P. Nagendra PC., with C.W. Pannila, A.R. Surendran, D.K. Subaschandra-bose for plaintiff-petitioner,
M.A. Sumanthiran with A: Premalingam for defendant-respondent
Chettiyar v Cinemas Limited
(Gamini Amaratunaa. J.)
GAMINI AMARATUNGA, J.This is an application for leave to appeal against an order 01made by the learned District Judge of Kandy on 30.08.2001. Thedefendant-respondent (respondent) raised a preliminary objectionin limine to this application on the basis that this leave to appealapplication is out of time. On this question both parties filed writtensubmissions and invited the Court to give a ruling.
For the present purposes it is not necessary to set out thefacts relevant to this application. It is sufficient to state that theorder of 30.8.2001 is an order against which the petitioner has aright to make a leave to appeal application. This application had 10been filed in this Court on .17.09.2001.
In terms of section 757(1) of the Civil Procedure Code, a leaveto appeal application has to be filed within 14 days of the Orderagainst which leave is sought. In computing the period of 14 days,the date of the order has to be excluded. All Sundays and publicholidays also should be excluded. The date on which the petition isfiled is also to be excluded.
In the present case, the date of the order i.e. 30.08.2001 mustbe excluded. The counting of the days begins from 31.08.2001, and02.09.2001 and 9.9.2001 were Sundays. When those two days are 20excluded, the 14th day was 15.09.2001, which happened to be aSaturday. Since the date of filing is to be excluded, an applicationfiled within the 15th day is also within time. In this instance, the 15thday was 16.9.2001, a Sunday, a day to be excluded in terms ofsection 757(1). It also happened to be a day on which the Registryof the Court of Appeal was closed. The petitioner has filed thisapplication on 17.9.2001, the next working day of the Registry.
The tenor of the argument of the respondent is that since the14th day happened to be. a Friday and the 15th day, which was aSaturday, not excluded by section 757(1), the petitioner should 30have filed his application on Friday, the 14th of September 2001. Itwas therefore contended that the application filed on 17.9.2001was out of time.
In support of his contention the learned counsel has cited twodecisions of the Court of Appeal, V. P. Perera v. A.L.M. LaffiW and
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(2004) 2 Sri L.R
E.A. J.M. Silva v Subramaniam Sankaran. The first case, V.P.Perera v. Laffir, dealt with the question whether the Court has thepower under section 759(2) to grant relief when the notice of appealwas out of time. Accordingly that case has no relevance to themanner of computation of the period of 14 days.
The other case dealt with a situation where the petition ofappeal had been filed after 60 days. The 60th day was a Sunday.The petition of appeal was filed on Monday. The Court held that thepetition of appeal was out of time.
In this case, the learned President’s Counsel has contendedthat since the 14th day was a Saturday the petitioner was unable tofile his petition on that day as the Registry of the Court of Appealwas closed. Even on Sunday the same situation prevailed. Thelearned President’s Counsel contended that in thosecircumstances, the petitioner was entitled in law to file his petitionon the next working day i.e. Monday the 17th of September 2001.For his submission the learned President’s Counsel relied onsection 8(1) of the Interpretation Ordinance, which reads asfollows.
“Where a limited time from any date or from the happening ofany event is appointed or allowed by any written law for thedoing of any act or the taking of any proceeding in a court oroffice, and the last day of the limited time is a day on which thecourt or office is closed, then the act or proceeding shall beconsidered as done or taken in due time if it is done or takenon the next day thereafter on which the court or office is open.”The learned President’s Counsel contended that 15.9.2001,which was the 14th day, was a Saturday on which the Registry wasclosed. The petitioner could have filed his application on the 15thday and yet be within time as the date of filing is also excluded.However the 15th day i.e. 16.9.2001 happened to be a Sunday andagain the Registry was closed. In addition Sunday is a day to beexcluded in terms of section 757(1). In short the learnedPresident’s Counsel’s argument was that in considering whether aleave to appeal application had been filed within the period allowedby the law the, Court has to look not only at section 757(1) of theCivil Procedure Code, but also at section 8(1) of the InterpretationOrdinance.
Chettiyarv Cinemas Limited
CA.(Gamini Amaratunga, J.)293
By virtue of the provisions of The Holidays Act, No. 29 of 1971,Saturdays are non-working days on which the Courts are closed. Ifthe last date for filing an appeal falls on a Saturday, can a party filehis appeal on the next Monday and contend that his appeal hasbeen filed within time? In view of the provisions of section 8(1) ofthe Interpretation Ordinance I answer that question in theaffirmative. Lex non cogit ad impossibilia. (The law does notcompel the performance of what is impossible). In consideringwhether an application has been filed within time, a Court has totake into consideration section 8(1) of the Interpretation Ordinancealong with section 757(1) of the Civil Procedure Code. Section757(1) does not stand alone. It is supplemented by the rule insection 8(1) of the Interpretation Ordinance. This is clear in view ofthe provisions of section 8(5) of the Interpretation Ordinance whichis as follows. “This section shall apply to written laws made as wellbefore as after commencement of this Ordinance”.
The following words of S.N. Silva, C.J., in Seienchina v.Mohamed Marikar and others<3> at 102 show that the aforesaid twoenactments apply together.
“In this case the notice of appeal was presented on20.10.1986. If that day is excluded, the period of 14 daysexcluding the date of judgment pronounced (i.e. 30.9.1986)and intervening Sundays and Public holidays would end on17.10.86 which was a public holiday. The next day on whichthe notice should have been presented was the 18th, being aSaturday, on which the office of the court was closed. The nextday the 19th was a Sunday which too had to be excluded interms of the section. In the circumstances, the notice filed on20.10.1986 was within a period of 14 days as provided for insection 754 (4) of the Civil Procedure Code.”
The above decision given in respect of a notice of appeal filedin terms of section 754(4), is equally applicable to the present casewhere the facts are identical. I have carefully considered thedecision of the Supreme Court in Sri Lanka State Trading(Consolidated Export) Corporation v. DharmadasaM) I prefer tofollow the recent decisions given by the Supreme Court inSelenchina’s case and in Chadet Nona v. Babun Singhd5> withregard to the manner of computation of the period of 14 days
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stipulated in section 754(4). Those two decisions give effect to theintention of the Legislature clearly expressed by the unambiguouswords used in section 754(4) of the Civil Procedure Code. See S.N.Silva C.J.’s reasoning in the Selenchina’s case, (Supra) 102,paragraph 2.
The method of computation set out in section 757(1) of theCivil Procedure Code is similar to that contained in section 754(4).Therefore the decisions in Selenchina’s case and Charlet Nona’s
case are good guides when one has to decide whether anapplication filed under section 757(1) is within time.
For the reasons I have set out above i hold that the petitioner’sleave to appeal application has been filed within the time allowedby law. I accordingly overrule the preliminary objection and decideto fix this application for inquiry.
Preliminary Objection over-ruled.
Matter set down for Inquiry.
CHETTIYAR v. CINEMAS LIMITED