043-NLR-NLR-V-52-FERDINANDO-Appellant-and-ABRAHAM-Respondent.pdf
-1950Present: Dias J. and Gunasekara J.FERDIXAXDO, Appellant, and ABRAHAM!, Respondent
S. C.516—D. C. Panadura, T.K. 866/25,551
.Appeal—Case conducted in person by appellant—Non-compliance with Civil AppellateBuies—Abatement—Petition of appeal—Formalitiesnecessary when not
signed by advocate or proctor—Civil Proceduli Code, s. 755.
Where an appeal has abated for non-compliance with Civil Appellate Buies,the appellant is not entitled to plead that he conducted the case in person and
that, therefore, it was the duty of the Secretary of the Court to have advisedlhim as to the law and procedure relating to appeals.
Where a petition of appeal has been signed by the appellant but has not beentaken down in writing by the Secretary or Chief Clerk of the Court in terms ofsection 755 of the Civil Procedure Code, such petition is irregular.
A PPE AL from a judgment of the District Court, Panadura.
Defendant-appellant in person.*
M. Ij. S. Jayasehera, for plaintiff respondent.
January 18, 1950. Dias J.—
This application fails for two reasons. In the first place, the appealmust be deemed to have abated within the meaning of the Civil Appellate-Rules, 1938 (Subsidiary Legislation of Ceylon, Volume TV, June 30th ,.1938, to 1st January, 1941), Section 4 (2). This sub-section declaresthat where the appellant fails to pay the additional fees due under rule2 sub-rule 4 within the time specified or before the expiry of the timeallowed by rule 2 sub-rule 7, whichever is later, the appeal shall bedeemed to have abated. The petitioner’s contention is that he having-conducted the case in person it was the duty of the Secretary to haveadvised him on the law. We do not think that any such duty is castupon the Secretary of a Court to advise litigants as to what the law orthe procedure is. This is a danger which a suitor in person always has.to face when he thinks he can conduct litigation in person.
In the second place the application fails because under section 755 of-the Civil Procedure Code it is provided that all petitions of appeal shallbe drawn and signed by some advocate or proctor or else the same shallnot be received. There is a proviso to the effect that any party desirousto appeal may within the time limited for presenting a petition of appealand upon his producing the proper stamp required for a petition ofappeal be allowed to state viva voce his wish to appeal together withthe particular grounds of such appeal “ and the same shall (so far as theyare material) be concisely taken down in writing from the mouth of the-party by the Secretary or chief clerk in the form of a petition of appeal.”’This admittedly has not been done. In the case of Emmanuel v. Ratna-singham 1 this Court held that where a petition of appeal was signedby the appellant but was not taken down in writing by the Secretary ofthe Court in terms of section 755 the petition of appeal was irregular.
The application must therefore be dismissed with costs.
Gtjnasekara J.—I agree.
Application dismissed-
(1932) 34 JSf. L. R. p. 126.