DHARMADASA AND OTHERS v. KUMARASINGHE

011-SLLR-SLLR-1981-2-DHARMADASA-AND-OTHERS-v.-KUMARASINGHE.pdf


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Dharmadasa v. Kumarasinghe (Ranasinghe, J.)
113
DHARMADASA AND OTHERSv.
KUMARASINGHE
COURT OF APPEAL.
RANASINGHE, J. AND ATUKORALE, J.
C.A. APPLICATION (REVISION) No. 1801/79-D.C. COLOMBO 1808/BE.APRIL 2,1981.
Civil Procedure Code, section 754—Notice of appeal—Computation of time undersub-section 4 for filing such notice— Whether Saturdays excluded— Fuel ConservationFive Day Week Act. No. 11 of 1978 -Holidays Ordinance {Cap. 177)—Holidays Act.No. 17 of 1965. section 4-Holidays Act, No. 29 of 1971 -Interpretation Ordinance(Cap. 3) section 8 (3).
Held
In calculating the period of fourteen days within which a notice of appeal should belodged against a judgment or decree appealed against Saturdays should also be excludedalthough not specifically referred to in section 754 (4). This is so as long as theprovisions of section 2 of the Fuel Conservation Five Day Week Act, No. 11 of 1978,which provides that "Saturdays shall not be working days" remain in operation.
Cases referred to
Chalonona v. Weerasinghe, (1967) 70 N.L.R. 46.
Kulantaive/pillef v. Marikar, (1918) 20 N.L.R. 471.
Jayawardhena v. Tiruchelvam, {1968) 71 N.L.R. 134.
Oharmasena v. The State, (1974) 79 (1) N.L.R. 320.
Municipal Council of Colombo v. Piyasena, (1980) 2 Sri L.R. 39.
APPEAL from the District Court, Colombo.
H. W. Jayewardene, Q.C, with Chula de Silva and Winston Siriwardena, for thedefendants-petitioners.
N. S. A. Goonetilleke, for the plaintiff-respondent.
Cur. adv. vult.
May 25,1981.
RANASINGHE, J.
The question which arises for determination in this appealis whether, in the computation of the period of, fourteen days,specified in section 754 (4) of the Civil Procedure Code, withinwhich a notice of appeal should be presented, the interveningSaturdays are also to be excluded. It is agreed that, if Saturdaysare also to be excluded, then the notice of appeal, which hasbeen presented in this case by the uefendants-petitioners has beenpresented within time and should be accepted. If not, the order
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of the learned District Judge refusing to receive the said notice ofappeal should stand.
The contention advanced on behalf of the said petitionersis: that the Fuel Conservation Five Day Week Act, No. 11 of1978, the provisions of which are deemed to have come intooperation on 17.2.1977, has provided that Saturdays shall not beworking days: that Saturdays are, therefore, now days on whichthe Court offices are closed and no party to a case could take anystep in an action on such a day: that Saturdays should also not,therefore, be included in the computation of the period offourteen days set out in section 754 (4) of the Civil ProcedureCode.
Section 754(2) of the Civil Procedure Code (Cap. 101), whichwas introduced in the year 1889, provided, as it stood prior to
1.1976, that, in the computation of the period of ten dayswithin which an appeal from a District Court should be filed,Sundays and public holidays were to be excluded. The CivilProcedure Code, as it then stood, did not provide for a notice ofappeal to be presented before the filing of the petition of appealitself. It is only in the said Civil Procedure Code, as revived inDecember, 1977, by Act No. 19 of 1977 and amended by ActNo. 20 of 1977, that two stages in the lodging of an appeal—viz:the presentation of a notice of appeal (section 754 (4) ), and thesubsequent presentation of the petition of appeal (section755 (3)) —came to be introduced.
Section 8 (3) of the Interpretation Ordinance (Cap. 2) whichwas passed in the year 1901, provided that, in the calculation of aperiod less than six days, all intervening Sundays and publicholidays are to be excluded. Thus, although in terms of theprovisions of the Interpretation Ordinance, the interveningSundays and public holidays could not be excluded in thecalculation of the said period of ten days, yet, they have to beexcluded in view of the specific provisions in the said section754 (2) itself.
The Holidays Ordinance (Cap. 177) of 1928 is the earliestOrdinance passed "to provide for Public and Bank Holidays", andits provisions were in operation until the said Ordinance wasrepealed in the year 1955 by the Holidays Act, No. 17 of 1965.Section 4 of the said Holidays Ordinance of 1928 provided that
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Dharmadasa v. Kumarasinghe (Ranasinghe, J.)
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public holidays specified in the said Ordinance "shall, in additionto Sundays, be dies non and shall be kept (except as hereinafterprovided) as holidays in Ceylon".This section specifically providesthat a day, which is a "dies non", should be kept as a holiday.
The Holidays Act, No. 17 of 1965, provided: that, in Ceylon,Sunday should, notwithstanding any custom, usage or writtenlaw, henceforth cease to be a dies non, and should not be kept as aholiday: that every Poya Day and the days specifically referred totherein should be public and bank holidays: that every publicholiday shall be a dies non, and be kept as a holiday. Thusthereafter Sundays ceased to be dies non and ceased to be kept asholidays. Under the provisions of this Act all public holidaysbecame "dies non".
Thereafter came the Holidays Act, No. 29 of 1971, whichproceeded to repeal Act No. 17 of 1965 but kept alive theregulations already made under it. The provisions of the 1971Act declared every Full Moon Poya Day and every Sunday to beboth a public holiday and a bank holiday: that the days set out inthe two schedules be additional public and bank holidays: thatevery public holiday shall be a dies non and shall be kept as aholiday. This Act too shows that the legislature has not beencontent merely to declare a day as a "dies non", but hasproceeded to provide expressly that such a day should also be keptas a holiday.
A consideration of the statutory provisions referred to abovedealing with public holidays and dies non do show: that all publicholidays are not "dies non": that once a day is declared a"dies non" it should be kept as a holiday.
The Fuel Conservation Five Day Week Act, No. 11 of 1978,which though certified on 5.12.1978 is nevertheless deemed tohave come into operation on 17.2.1977, provides that 'Saturdays
shall not be working days' There is no express provision
. that Saturday shall be a dies non or that Saturday shall be a publicholiday. Yet, it is a non-working day; and a day on which thecourts would not ordinarily sit and a day on which the courtoffices would not ordinarily be open for a party to an action totake any step in any such action.
As already stated, the Civil Procedure Code (Cap. 101) havingbeen revived, as it stood on 1.1.1976, by Act, No. 19 of 1977, was
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then amended by Act, No. 20 of 1977, which too came intooperation on 15.12.1977. Section 754 (4) of the said CivilProcedure Code, as so amended, provided that the notice ofappeal, which now became the first step in the lodging of anappeal, should be presented within a period of fourteen daysfrom the judgment or decree appealed against and that, in thecalculation of the said period of fourteen days, inter alia, Sundaysand public holidays are to be excluded. Section 755 (3) of the saidCode which deals with the next step, viz. the presentation of apetition of appeal, provides that such petition of appeal should bepresented to Court within a period of sixty days from the saidjudgment or decree so appealed against. This sub-section, however,does not provide that, in the computation of such period of sixtydays, any day-either a Sunday or a public holiday—shall beexcluded. It is, therefore, quite clear that Sundays and publicholidays are to be excluded in the computation of only the periodof fourteen days specified in section 754 (4), and not in the periodof sixty days set out in section 755 (3) of the said Civil ProcedureCode. At the time the said sections 754 and 755 were so enactedthe provisions of the Holidays Act of 1971—declaring Sunday tobe a public holiday and directing every public holiday to be a diesnon and to be kept as a holiday—were in operation. The intentionof the legislature has, therefore, been made very clear—that, inthe computation of the period of sixty days, Sundays and publicholidays, even though they were, by another provision of law,declared to be dies non, and were to be kept as holidays, are notto be excluded, but that, in the computation of the shorter periodof fourteen days set out in section 754 (4), Sundays and publicholidays are to be excluded. At the time of such enactmentSundays and public holidays were both, as already stated,non-working days, and the intention of the legislature has beenthat, in the calculation of this shorter period of fourteen days,only working days be included, and that all non-working days beexcluded. The legislature has taken very great care to ensure that,where the period of time within which an act has to be done isshort—whether it be not exceeding six days as in section 8 (3) ofthe Interpretation Ordinance, or ten and fourteen days as in theCivil Procedure Code, or ten days as in the earlier CriminalProcedure Code (Cap. 16) or fourteen days as in the Code ofCriminal Procedure Act, No. 15 of 1979 -only such days as onwhich such act could actually be done should be counted.
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I n the case of Chalonona v. Weerasinghe (1), where the judgmentappealed from was delivered in January, 1965, when theprovisions of the Holidays Act, No. 17 of 1965, in terms, of whichSunday had ceased to be a dies non and was not kept as a holiday,were in operation, the Supreme Court decided that Sundays werenot to be excluded in the computation of the period of ten daysspecified in section 754 (2) of the Civil Procedure Code (Cap. 101)as it stood prior to 1.1.1976.
The legal effect and the significance of a day being declared adies non was considered in the case of Kulantaivelpillai v. Marikar
by Bertram, C. J. whose views have been cited with approvalby the Supreme Court in the more recent cases of Jayawardhenav. Tiruchelvam (3) and Dharmasena v. The State (4) at 327; andby me in the case of The Municipal Council of Colombo v. S. P.Piyasena (5).
In the case of Jayawardhena v. Tiruchelvam (supra),Samerawickrame, J. held that, as Sunday has ceased to be a diesnon by virtue of section 2 (a) of the Holidays Act, No. 17 of1965, the provision of section 339 of the Criminal ProcedureCode (Cap. 16) for the exclusion of Sundays, in calculating thetime within which an appeal must be filed, has ceased to be law.
A consideration of the judgments of Samerawickrame, J. inJayawardhena's case (supra), and of Tambiah, J. in Chalonona'scase (supra), shows that Their Lordships have both proceededon the basis that what has been intended to be excluded are onlydays, which, in terms of the law existing at the time, arenon working days on which the Court Offices are not kept open.
In Dharmasena's case (supra) Wijayatilleke, J. and Wijesundera,
J., two of the three judges who constituted the said Bench of theSupreme Court, differed as to whether in the calculation of theperiod of 24 hours, specified in section 214 of the CriminalProcedure Code, within which a District Judge is required torecord his verdict, an intervening Poya Day, which at the relevanttime was a dies non, by virtue of the provisions of the HolidaysAct, No. 17 of 1965, then in operation, should be excluded ornot. While Wijayatilleke, J. was of opinion that such an interveningPoya day should not be excluded, Wijesundera, J. was of the viewthat it should be. Rajaratnam, J. the third judge did not express anopinion on this point. The appeal was finally decided upon the
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view formed by Rajaratnam, J. and Wijesundera, J. on the facts ofthe case.
The question which was considered by me in my judgment inthe case of The Municipal Council of Colombo v. Piyasena (supra)was in regard to the computation of the period of 60 days set outin section 755 (3) of the Civil Procedure Code (Cap. 101) asamended by Act No. 20 of 1977 referred to above; and thedecision was that in the computation of the said period of sixtydays, intervening Sundays and public holidays are not to beexcluded. What arises for consideration now in this case is themanner in which the period of 14 days, set out in section 754 (4)of the said Civil Procedure Code, should be calculated.
I am, therefore, of opinion that, during the period theprovisions of section 2 of Act No. 11 of 1978 are in operation,Saturdays should also be excluded in the computation of theperiod of fourteen days set out in section 754 (4) of the CivilProcedure Code (Cap. 101) as amended by Act No. 21 of 1977.
For these reasons, the application of the defendants-petitioners isallowed; the order of the learned District Judge, dated 12.7.1979,is set aside; and the learned District Judge is directed to forwardthe record, as prayed for in paragraph {b) of the prayer to thedefendants-petitioners' petition.
The plaintiff-respondent is directed to pay the defendants-petitioners a sum of Rs. 525 as costs of this application.
ATUKORALE, J.-l agree.
Application allowed.