059-NLR-NLR-V-41-DE-SILVA-v.-SEENATHUMMA-et-al.pdf
de Silva v. Seenathumma.
241
1940 Present: Howard C.J. and Soertsz, Heame, Keuneman, and
Wijeyewardene JJ.
DE SILVA v. SEENATHUMMA et al.1—D. C. Tangalla, 4,226.
Appeal—Notice of security for respondents’ costs—Two respondents to appeal—Notice served on one and security given within time limit—Delay inservice of notice on other—Powers of Supreme Court to grant reliefunder sub-section (3), Civil Procedure Code, s. 756 (Cap. 86).
The Supreme Court has no power to grant relief, where there hasbeen a failure to comply with' an essential requirement of section 756of the Civil Procedure Code.
The essential requirements of the section are—
Notice of security, unless waived, must be given forthwith, i.e.,
must be tendered or filed on the day on which the petition ofappeal.is received by the Court.
A copy of the petition of appeal must be furnished at- or before
the time the security is accepted and the deposit made.
The other requirements of the section are that security must betendered and perfected and the deposit made within twenty days fromthe date of the decree or order appealed against.
Where there has been an omission to tender and perfect securityand to make the deposit within twenty days or other omission, mistake,or defect in the course of tendering security or in the course of perfec-ting the appeal generally, relief may be granted in proper cases, if therespondent has not been materially prejudiced by such omission,mistake, or defect.
The judgment of Abrahams C.J. in Zahira Umma v. Abeysinghe (39N. L. R. 84) explained.
HIS was a case referred to a Bench of five Judges by Howard C.J.
JL in exercise of the powers vested in him under section 51 of theCourts Ordinance.
A preliminary objection was taken to the hearing of the appeal on theground that it must be held to have abated in the Court below for failureto observe an essential requirement of section 756 of the Civil ProcedureCode.
C. C. Rasa-Ratnam (E. B. . Wikremanayake with him), for plaintiff,respondent.—Section 756 of the Civil Procedure Code places an impera-tive obligation upon the appellant to give notice as regards security forcosts of appeal to the respondent, and thereby give to the respondent anopportunity to scrutinize such a security oh the day appointed in thenotice (Form 126) and to raise objections, if any, as to why any suchsecurity so tendered should not be accepted and perfected by the Court.(Charles v. Jandris1; Siyadoris Appu v. Abeyanayake *; Kangany v.Ramasamy Rajah,'.)
The failure to comply with this duty cast upon the appellant by theLegislature is a substantial non-compliance with the provisions of section756 of the Civil Procedure Code, and .as such entails the forfeiture of theright of appeal.
* 16 N. L. R. 159.* 13 C. L. W. 23.3 21 N. L. R. 106.
T
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de Silva v. Seenathumma.
Such a failure is fatal and will not be excused. (Silva v. Goonesekere1 ;Saleem v. Yoosoof et al'; Suppramaniam Chettiar v. Senanayake andothers *.)
Further, it is immaterial as to whether any material prejudice has infact been caused to the respondent by the appellant not giving noticeas regards security for respondents’ costs, as such a failure is a non-compliance with an essential term of section 756 of the Civil ProcedureCode. • (Zahira Umma v. Abeysinghe et al. *.)
The amending Ordinance No. 42 of 1921 was passed in order to curecases of trivial omissions and technicalities. Vide Government Gazette of.November 16, 1921.
Before the amending Ordinance, when money in cash was in fact deposit-ed, it was held that absence of hypothecation was a fatal irregularity.(Wickremaratne v. Fernando'.)
But, after the amending Ordinance No. 42 of 1921, which is nowengrafted upon the old section 756 as sub-section (3), relief has beengiven in cases where security was tendered in cash, but where there was
some non-compliance regarding procedure (Mendis v. Jinadasa et tl. *;Martin Singho v. Paulis Singho ' ; Ramalingam v. Velupillai et al.*) ;and (b) where the appellant has been reasonably prompt {Fernando v.Nikulan Appu et al. “).
The excuse advanced by the appellant as to why notice as regardssecurity for costs of appeal was not given to the respondent is that therespondent was not in the village. If so, notice could have been servedon his proctor who was present every day in Court or recourse could havebeen made to substituted service. Such an excuse as this should not beeither entertained or countenanced by this Court.
H. V. Perera, K.C. (with him S. W. Jayasuriya and C. J. Rafiatunge),for first to fourth defendants, appellants.—The question is one of inter-pretation of sub-section (3) of section 756 of the Civil Procedure Code.It is necessary to ascertain the limits of the power of the Supreme Courtto grant relief. No distinction has been drawn in decided cases betweenthe circumstances when the Court could grant relief and the circumstancesunder which the Court should grant relief. Silva v. Goonesekera (supra)deals with a case where the Judges thought that they could not interfere,and Zahira Umma v. Abeysinghe (supra) merely lays down when theCourt should not grant relief. My submission is that where, as in thepresent case, security has been given, but certain formalities have notbeen complied with, the Court has the power to give relief.
The instances where the Supreme Court has the power, and where itdoes not have the power, to grant relief have not yet been clearly defined.We do not exactly know where we stand at present! In Zahira Umma t>.Abeysinghe (supra) it was stated that in no-case would relief be grantedwhere there is a non-compliance with any of the terms of section 756without an excuse. One should not read into section 756 (3) the words“ without an excuse ”, because the power conferred. on the Court is of a
1 31 N. L. R. 184.* 24 N. L. R.188.
*nC.L.R.117.7 13 C. L. R.238.
» 18 0. L. W. 41.* 38 N. L. R.255.
39 N. L. R. 84.* 22 N. L. R.1.
20 N. L. R. 279.
SOERTSZ J.—de Silva v. Seenathumma.
243
discretionary nature. Absence of excuse should not be elevated to theposition of a statutory requirement. The interpretation given to section756 (3) in various decisions can be traced to the view taken in Silva v.Goonesekere (supra), but undue importance was placed in that case uponthe statement of objects and reasons published in the Gazette. The sub-section, in itself, containes no statutory limitation on the power that isgiven to the Supreme Court.
[Howard C.J.—The effect of sub-section (2) of section 756 does not seemto have been previously considered ?]
That is so. Failure to give the security and to make the deposit arethe only irregularities under which an appeal would abate. In the presentcase, notice of security was duly given. (Fernando v. Nikulan Appu(supra).) The deposit, too, was made within twenty days. It is truethat the notice of security was not served on the plaintiff within thetwenty days, but that was not due to any fault of ours; nor, in thecircumstances, does section 756 require any substituted service undersection 356. There is a distinction between what is of the essence ofsection 756 and what is merely incidental and non-essential. The givingof security is certainly an essential step, whereas giving notice of securityis only a means to an end, and should be treated as incidental; failurein the latter may be excused, provided no material prejudice has beencaused.
[Soertsz J.— Can this Bench, as at present constituted, overrule adecision of a Divisional Bench ?]
This Bench of five Judges formed under section 51 of the Courts Ordi-nance can overrule the decision of three Judges in Zahira Umma v.Abeysinghe (supra).
[Soertsz J. pointed out that the words “ shall be deemed and takento be the judgment of the Supreme Court” appear as well in section 38of the Courts Ordinance as in section 51.]
Some guidance can be had on the point from Jane Nona v. Leo1 andAnohamy et al. v. Haniffa *.
B. Wickremanayake, in reply.—A Bench of five Judges to-day cannotbe regarded as a Collective Court. It is a Divisional Bench, and cannotoverrule a decision of another Divisional Bench.
Cur. adv. vult.
March 19, 1940. Soertsz J.—
A preliminary objection has been taken to the hearing of this appeal,on the ground that it is not properly before this Court, inasmuch as—itis contended—it must be held to have abated in the Court below, forwant of conformity with an essential requirement of section 756 of theCivil Procedure Code.
It is deplorable that despite the fact that this section of the Code hasfunctioned in the Civil Courts of this Island almost daily for over sixtyyears, there should be so much misapprehension and uncertainty as to itsmeaning. In the case of Katonis Appu v.' Charles and another’
1 (1923) 25 if. L. R. 241.* (1923) 25 N. L. R. 289.
1 12 Ceylon Loud Weekly 162.
244
SOERTSZ J.—de Silva v. Seenathumma.
Abrahams C.J. felt compelled to observe in the year 1938 that “it iscertainly about time that it was fully understood what the provisions ofsection 756 entail. There have been sufficient decisions over a numberof years to make it perfectly clear ; but these cases still go on and litigantspay To-day, the position is no better. If anything, it is worse.Preliminary objections to the manner in which appeals have been consti-tuted are of such frequent occurrence, that they may be said to form a partof the order of the day in our Courts of Appeal. They have become a“ positive nuisance ”, and they occupy so much of the time of this Courtwith matters of trivial routine, that my Lord the Chief Justice has thoughtfit to exercise the power vested in him by section 51 of the Courts and theirPowers Ordinance, and give directions for five Judges to assemble andconsider this matter, in the hope that the parties concerned will takeoccasion to co-operate in order to put an end to a state of things that maywell be described as scandalous.
The facts upon which the objection taken here is based are as follows : —On August 18, 1938, the appellants tendered their petition of appealtogether with a notice of security calling upon the plaintiff-respondentand the defendant-respondent to take notice that they (the appellants)would on September 1, 1938, move to tender security for the costs of theappeal by offering one A.L.M.M.M. Sahib, as surety, and that they would,on the same day, deposit a sufficient sum of money to cover the expenseof serving the notice of appeal. Thereupon, the Court ordered noticesto issue on the respondents to the appeal, returnable on September 1,1938, which was the date specified in the notice as the date on whichsecurity would be tendered, and this date, although it fell within thetwenty-day period mentioned in section 756, was perilously near the end ofit. However, the defendant-respondent was served before that date, butthe Fiscal reported on August 31, 1938, that his officer had made searchfor the plaintiff-respondent but could not find him and that, it was said,that he had gone to Ambalangoda in the District of Galle for medicaltreatment. On this, the Court made order “ security will be tenderedto-day …. Reissue on plaintiff-respondent for 3/10 ”, a date farbeyond the twenty-day period within which security for costs had to beaccepted. When the case was called on that day, the Fiscal’s report showedthat the notice was served on the plaintiff-respondent on September 12,
But he was absent, and the Court ordered notice of appeal to issuefor November 3, 1938. That order, of course, implied that the Courtregarded the security that was, in point of fact, tendered and perfected onSeptember 1, 1938, eleven days before the notice of security had beenserved on the plaintiff-respondent, as a compliance with the requirementof section 756 that there must be pronouncement of the acceptance of thesecurity within twenty days from the date of the decree or order appealedagainst. It was, obviously, in that view of the matter that the Court issuednotice of appeal, and directed the subsequent steps to be taken for theappeal to reach this Court. It is now contended on behalf of the respon-dents that there was no proper acceptance of the security on September 1,1938, because by that date the plaintiff-respondent had not received noticeof security and had not had an opportunity to be heard in regard to it, and
SOERTSZ J.—de Silva v. Seenathumma.
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that, therefore, the proper course for the District Judge to have takenwas to hold the petition of appeal to have abated, and to have abstainedfrom taking the further steps that he took.
Counsel for the appellants concede that there is technical force in thisobjection but they ask for relief under sub-section (3) of section 756on the ground that the plaintiff-respondent has not been materially preju-diced by what has occurred in this case. The question that then arises forour consideration and decision is, in what instances of failure to observethe provision of section 756, relief may be granted under this sub-section.For the appellants, the submission is made that sub-section (3) empowersthis Court to grant relief in all cases of failure, whether substantial ,orincidental, provided the respondent to the appeal Has not been materiallyprejudiced.
This question was considered by a Divisional Bench of three Judges ofthis Court, and Abrahams C.J. who delivered the judgment of that Benchsaid : “ It seems to me that there are two forms of a breach of section 756in respect of which this Court ought not to give relief. One is when,whether a material prejudice has been caused or not, non-compliance withone of the terms of section 756 has been made without an excuse, and theother is when though non-compliance with an essential term may betrivial, a material prejudice has been occasioned ”.
This is an authoritative decision of this Court and, if we may say so,contains a correct statement of the meaning of section 756 read as a whole,but in view of the fact that that decision does not appear to have beenduly appreciated, in the succinct form in which it has been expressed, itseems desirable to elucidate its meaning. The first part of that statementis intended to lay down that where there has been a total failure to complywith one of the terms of section 756, relief will not be given even if itshould be apparent that no material prejudice has been occasioned to therespondent by such a failure, for peremptory requirements of the lawmust be given full effect. Such requirements must be put before theinterests of individuals and Courts have no power to absolve from them.If I may quote the words of Maule J. in Freeman v. Tranch 1 “ althoughinstances are constantly occurring where Courts might profitably beemployed in doing simple justice between the parties, unrestained byprecedent or by any technical rule ….. the proceedings of all Courtsmust take a defined course, and be administered according to a uniformsystem …. and it is probably more advantages that it should beso, though at the expense of some occasional injustice ”.
Now, section 756 speaks in imperative terms when it enacts that thepetitioner “ shall forthwith give notice to the respondent that he willon a day to be specified in such notice, and within a period of twentydays …. tender security …. and will deposit a sufficientsum of money to cover the expenses of serving notice ”. In the case beforethat Divisional Bench, the appellant gave no notice at all of security tobe tendered, but within the period of twenty days, she produced what sheclaimed to be adequate security, and the first part of the statement I have
1 21 L. J. C. P. at 21S.
246
SOERTSZ J.—de Silva v. Seenathumma.
cited from the judgment of Abrahams C.J. dealt with the actual case beforethe Bench, and held that the failure on the part of the appellant to givenotice for security was fatal. But in coming to that conclusion AbrahamsC.J. appears to have taken notice of the fact that the failure was onefor which no excuse was given, for in the preceding sentence he said “ thepetitioner says she did everything she could, but she has not given anyexcuse for not doing what she should ”. The argument in the course ofthe case before us indicated that this qualification has created some doubtand difficulty. The qualification seems to imply that a complete non-compliance with one of the terms of section 756 may be condoned if a goodexcuse is forthcoming, but I think I am in a position to say—and the contextsupports the view—that when Abrahams C.J. used the words “ withoutan excuse ”, he had in mind the practice that obtained in some Courts forproctors to waive security for costs by arrangement among themselves, andhe intended to say that in a case where no notice of security was given inpursuance of that practice, an objection taken in this Court that the letterof the law had not been complied with would be overruled and the failureexcused, for a party may waive a rule of Civil Procedure intended for hisbenefit, and such a waiver would estop him from thereafter insisting uponthe requirement he had waived. I can imagine no other excuse that couldavail a party who has failed to comply with the peremptory requirementto give notice of security. In the case Abrahams C.J. was considering,it is not quite correct to say that the appellant “ has not given any excusefor not doing what she should ”. She did, in fact, put forward an excuse.She said “ she was unable at the time when she ought to have givennotice of security to say what form the security was going to take ”, andso she waited till she could ascertain that. Logically, this appears to bea valid and cogent excuse, but it was rejected, just as any other excusethan the one I have referred to would have had to be rejected, in view ofthe peremptory terms of the requirements.
Again, in the course of the argument in this case there was indicationthat difficulty had arisen from the use of the words “ought not to give relief”,when in the course of the judgment Abrahams C.J. stated “ it seems tome that there are two forms of a breach of section 756 in respect of whichthis Court ought not to give reliefIt was submitted to us that thosewords imply that in regard to both forms of breach, this Court could giverelief, if it would, but that Abrahams C.J. took the view that this Courtought not to exercise its discretion to do so, and upon that submission, itwas contended that such a judicial dictum was no more than a “ piousopinion ”. I am unable to accept that suggestion. It seems to me thathere too, in the context “ ought not ” must be taken to mean “ ought notfor the reason that the law does not permit ” for after saying that, AbrahamsC.J. went on to say that the other breach that this Court “ ought not ” torelieve from “ is when though non-compliance with an essential term maybe trivial, a material prejudice has been occasioned ”. It is obvious thatin that context “ ought not ” must mean cannot ” for sub-section (3)implies beyond any manner of .d^ubt that rehef may not be granted whenthe respondent has been materially ■prejddijjed by the failure.
SOERTSZ J.—de Silva v. Seenathumma.
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The result thus reached is that this Court is not empowered by sub-section (3) to grant relief where there has been a failure to comply with anessential requirement of section 756 regardless of the question of prejudice,but may do so in cases in which there has been “ mistake, omission, ordefect in complying with the provision of section 756 ” provided the res-pondent has not been materially prejudiced.
I cannot read sub-section (3) in the manner proposed by the appellants’Counsel as covering '* all failures ”, for to read it in that way, that sub-section will have to be recast, for instance, as follows: in the case of afailure to comply with, or of any mistake, omission, or defect in complyingwith
The next question is what are the requirements of section 756 that mustbe complied with unless they have been expressly waived. Section 756(1)sets them forth explicity. They are (1) that the appellant, once the peti-tion of appeal has been received, shall give notice forthwith that he will ona date within twenty days from the date of the decree or order appealedagainst (a) tender and perfect his security, (b) that he will deposit a sum ofmoney sufficient to cover the expenses of serving the notice of appeal ; (2)that he shall furnish a copy of the petition of appeal for service on therespondent or his proctor. Two of these matters are immediately in hispower, namely, the giving of notice forthwith and the furnishing of thecopy of the petition of appeal. The two other matters, namely, the tender-ing of the security and of the deposit to cover expenses of the serviceof notice of appeal are not immediately in his power, for they can beeffectively done only with notice to the respondent. Section 756, therefore,gives him twenty days’ time for that purpose, and of course, requires himto contrive things so as to discharge those obligations within twenty days.The effect of section 756 is that the failure on the part of the appellant tocomply with the matters immediately and completely in his power maynot be excused, the other matters may be excused if there has been“ reasonable ” omission, mistake or defect and the respondent has not been.materially prejudiced.
The question then arises as to how the present case stands. Therecan be no question that these appellants duly furnished a copy of thepetition of appeal and gave notice of security forthwith for they tenderedthis notice with their petition of appeal. In my opinion, it is clear fromthe words used in section 756 that when it was provided that notice shouldbe given fothwith, what was intended was that notice should be tenderedor filed forthwith, not that it should be served forthwith, for there is madeavailable by the section’ itself an interval within the period of twentydays within which to serve notice. It is in this sense that the words “ givenotice forthwith ” were interpreted in Fernando v. Nikulan Appu andour ruling too is that that is the meaning of the words “ give notice ” inthis section. There has, therefore, been a compliance by the appellantswith the requirements of section 756 that were immediately and completelyat their disposal, but in consequence of the mode employed by them to havethis notice served on the' respondents, it came -to pass that service onthe plaintiff-respondent could bAt be effected in time to afford him an,
248
SOERTSZ J.—de Silva v. Seenathumma.
opportunity to be heard in regard to the security if he had any objection tooffer to its acceptance before the twenty days elapsed. If I may say so withrespect the view taken in the case of Kangany v. Ramasamy 1 is correct,namely, that the notice that should be given to a party respondent is aneffective notice, that is to say, a notice that is served on him time to enablehim to be heard in regard to the security before it is accepted within thetwenty days allowed by section 756. In that case a notice that reachedthe respondent “ a day after the date on which security was tendered andperfected ” was held to be an insufficient compliance with the section andthe appeal was rejected for that reason. That case, however, wasdecided in 1918, when sub-section (3) was not in existence. To-day theposition is different.
When the appellants in this case tendered the notice of security forcosts, they followed the course usually taken in regard to service ofprocesses or notices, for section 356 of the Code says that “ all noticesand orders required by this Ordinance to be given to or served upon anyperson, shall, unless the Court otherwise directs, be issued for service to' theFiscal ”. Evidently the appellants hoped that it would be possible toserve the notices on the respondents through the Fiscal, within time,but in view of the peremptory direction in section 756 that the securityshould be accepted within twenty days, they ought to have consideredthe desirability of asking for special directions to be given by the Courtfor the service of this notice. They could, for instance, have asked to beallowed to serve the notices on the proctors for the respondents. But,their failure to do that was not a failure to comply with any specialrequirement of section 756, for there is no requirement in that sectionin regard to the manner in which notice of security shall be served,it was only an omission to take a more effective course in complyingwith an imperative requirement of section 756, namely, the requirementof giving notice of security. As an omission, it falls within the words ofsub-section (3), and this Court has the power to grant relief from theconsequences of the omission, if no material prejudice has resulted to therespondent. Now, it seems clear that in this case there is sufficient securitygiven for the respondents’ costs of appeal. The defendant-respondentwho was served with notice in time had nothing to say against it, and theplaintiff-respondent himself has not, up to now, urged anything againstit, and I can imagine no prejudice that will result to the respondents fromthis omission, mistake, or defect. The next question is, ought we to grantrelief. In regard to that matter, I think we must not overlook the factthat the appellants took the course that has been usually followed forgiving notice of security. They were able by those means to have noticeserved in time on the defendant-respondent. It was the extraordinaryfact that the other respondent had just at this time left the districttemporarily, that prevented service being effected on him within the periodof twenty days.
For these reasons, I am of opinion that relief may properly be grantedin .this case and direction given that the appeal be listed in the usualcourse. But I think we should state quite clearly that our decision inthis case does not mean that in future cases we shall, .necessarily, give relief
1 tl N. L. S. 106.
Mohideen v. Marikar.
249
in similar circumstances. The experience of these appellants in this casemust serve to teach other appellants the hazards to which they exposethemselves when in too sanguine expectation, they resort to the usual modeprescribed for the service of processes and notices, oblivious of the fact thatwhile in nearly every other instance there is no time limit imposed by theOrdinance for the service, in the instance of section 756 a definite andsomewhat exiguous period is fixed. That is a fact to which appellantsshould pay careful attention, and they should not omit to ask for specialdirections from the Court whenever it appears likely that the usual modeof service may not serve their purposes.
To sum up, the conclusions reached are that (a) notice of security,unless waived, must be given forthwith, that is to say, must be tenderedor filed on the day on which the petition of appeal is received by theCourt (Fernando v. Nikulan Appu (supra) ); (b) a copy of the petition ofappeal must be furnished at or before the time the security is acceptedand the deposit made ; (c) security must be tendered and perfected,and the deposit made within twenty days from the date of the decreeor order appealed against security ; (d) failure to comply with (a) and/or
is fatal and sub-section (3) of section 756 does not permit relief to begranted by this Court, in respect of it; (e) omission to tender and perfectsecurity and to make the deposit within twenty days, and other omissions,mistakes, and defects occuring in the course of tendering security, and inthe course of perfecting the appeal generally, may be condoned by virtue ofsub-section (3), in proper cases, if the respondent has not been materiallyprejudiced by such omission, mistake, or defect.
In view of these conclusions, the case before us appears to be typicalof the cases in which relief may be granted and for that reason, I havealready expressed my opinion that it should be listed in the ordinarycourse, for consideration on the merits of the appeal.
In all the circumstances, I think that no order for the costs of thispreliminary discussion need be made.
Howard C.J.—I agree.
Keuneman J.—I agree.
Hearne J.—I agree.
Wijeyewardene J.—I agree that the order proposed by my brother Soertszshould be made in this case.