001-NLR-NLR-V-22-FERNANDO-et-al.-v.-NIKULAN-APPU-et-al.pdf
THE
NEW LAW REPOETS OF CEYLON,VOLUME XXII.
Present: Bertram C. J. and Shaw J.i920.
FBsRNANDO et al. v. NIKULAN APPU et al.
47-~D. 0. Chilaw, 6,136.
A ppeat—Notice as to tender of xecurity—Must be flkdjdrthvoiih—Meaning
/rf^jjbrifrwith”—Civil Procedure Code, ft 766, .
Voder section 750 of the Civil Procedure Code notice as to tenderotscfourity must be filed forthwith, i,e„ should be filed on the sameday as.the receipt of the petition of appeal is verified or can reason-ably be verified.
Where an enactment directs that a thingshall be done “forth,with,*’ the word is to be oonstmed as meaning j“ in a reasonabletime." ■ What is reasonable must depend upon the ciroumstanicesof eaoh case.
Bift.the word “reasonable " is to be interpreted, not as mean*ingreaSonable from the point of yiew of its effect upon the person towhets or in relation to whom the aot isr to be done, but reasonablefrom the.point of view of the person who is called upon to do it.
The person who is to do the act must do it “ as soon as he reason*ablyein.”
When the act is one which in its nature can be done withoutany delay at all, and there are no special circumstanoes occasioningdelay,.the act must be done at once. In such a case, all that itis neoessary .to inquire is whother the act was done “ without anydelayffagt could possibly be avoided!” '
This is particularly the case when the aot to be done is closelyconnected with another aot which it follows, so that in theintention of the Legislature they.are one continuous act.
f pHE faots appear from the judgment.
St. V. Jayawardene, for appellants.—Section 760 of the CivilProcedure Code requires that security should be given wfthintwenty dayB. In this case seourity has been given within the timeprescribed by law. The failure to give notice of seourity forthwith
6
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1920.as required by the section is not, therefore, a fatal irregularity. The
H muiiju re<luirementi8 directory. There is no suggestion that the respond-«. Nikulan ents have Buffered in any way by reason of the failure' to giveAPPU notice forthwith. The objection is a highly technical one. .
E. W- Jayawardene (with him Groos-Dabrera), for the respond-ents.—The terms of the section are clear. Notice must be givenforthwith. The petition of appeal was accepted on the 5th, andnoticewas issued on the 7th. “ Forthwith ” means immediately, withoutanydelay. There has beenadelayoftwodaysinthiscase.. The word“ forthwith ’’ occurs in connection with appeals under the EnglishBankruptcy Rules, 1870. It has been held in several English casesthat this word means that the act required should be done withoutany delay. Regina v. Price,1 Ex parte Lamb, 2 In re Vitoria? Ex parteSillence? Ex parte Donnithorne? Be Green? Keith v. National Tele-phone Co.? B. v. Berkshire Justices? The word “ forthwith ”has received judicial interpretation in Ceylon in connection withthe Labour Ordinance. “ Forthwith” was held to mean “ withoutany delay that.could possibly be avoided.” Soysa v. Anglo-Ceylonand General Estates. Co* The provisions of section 756 of the Codeshould be construed “ with strictness and exactitude.” Iyer v.
A. Bt. V. Jayawardene, in reply, referred toil. v. WorcestershireJustices,11.Staunton v. Wood,12 and Peris v. Silva12 It .does notappear when the petition of appeal was accepted by the Judge.The delay in question is'not unreasonable, this is the first time anobjection of this kind is taken. The provision is not “ imperative.”
Cwr. adv.mlt.
August 6, 1920. Bebtbam C.J.—
The question that arises.in this case is as to the proper inter-pretation of the word “ forthwith ” in section 756 of the CivilProcedure Code.
Section 754 requires that a petition of appeal shall be presentedto the District Court,within ten days. If it is presented in time,the Court must receive it. By section 756 it is provided thatwhen the petition has been received, the petitioner shall forthwithgive notice to the respondent that he will on a day specified in thenotice, and within twenty days from the date of the judgment,tender security for the costs of appeal. On the appointed day therespondent is to be heard to show cause ,-if any, against such securitybeing accepted.
1 (1853)^ Moore P. C. 203. .1 (1881) 19 Ch. D. 169.
» (1894) 1 Q. B. 259.
(1877) 7 Ch. D. 238.
6 (1879) 40 L. T. 660.
(1879) 40 L. T. 660.
7 (.1894) 2 Ch. 147.
(1878) 4 Q. B. D; 469.
(1916) 19 N. L. B; 374.» (1918) 20 N. L. 'R. 280.11 (1839) 7mDowl. 789. •“ (1861) 16 Q. B. 638.
M (1906) 3 Bat. 166.
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In this case the respondent did show cause. The cause was thatthe notice was not given forthwith upon receipt of the petition.An interval of two days, so it was urged, had, in fact, elapsed.The petition was tendered on February 5, 1920, The notice wasfiled on February 7, 1920. If the petitioner is to be allowed anylatitude at all, no one can say that the delay was an immoderate one.But the question is as to the meaning of “forthwith,”and whether,it does allow any latitude.
This word has been interpreted in a series of English judgments,and the principle evolved in those judgments has been applied torules of a character very similar to those now under discussion,namely, rules 143 and 144 of the Bankruptcy Rules, 1870. Themost important of those cases are the following: Regina v. Price}Ex parte Lamb} and In re Vitoria? There is also a local authority,in which the principles of these cases are applied, namely, Soysa v.Anglo-Ceylon and General Estates Co?
The principles which these cases have established are thefollowing:—
Where an enactment directs thata thing shall be done “forth-with,” the word is to be construed as meaning “ in a reasonabletime.” What is reasonable must depend upon the circumstancesof each case. (See in particular Ex parte Lamb?)
But the word “reasonable” is to be interpreted, not asmeaning reasonable from the point of view of its effect upon theperson to whom or in relation to whom the act is to be done, butreasonable from the point of view of the person who is called uponto do it. The person who is to do the act must do it “ as soon as hereasonably can.” (See in particular Regina v. Price?)
Where the act is one which in its nature can be done withoutany delay at all, and there are no special circumstances occasioningdelay, the act must be done at once. In such a case, all that itis necessary to inquire is whether the act was done “ without anydelay that could possibly be avoided.” (See per Wood Renton J.in Soysa v. Anglo-Ceylon and General Estates Co?)
This is particularly the case when the act to be done is closelyconnected with another act,which it follows, so that jn the intentionof the Legislature they are one continuous act. (See per Lush L. J.in Ex parte Lamb?)
With regard to the enactment Ve are now considering, there isone circumstance that must be noted. The notice must followforthwith, not upon the presentation of the petition, but upon itsreceipt. The receipt is the act of the Court, and before receivingthe petition the Court must verify the fact that the petition is intime. It is not for the Court to communicate the receipt to the^petitioner. It is for the petitioner to ascertain whether his petition
1 [1853) 8 Moore P. O. 203,» [1894) 1 Q. B. 259.
* [1881) 19 Oh. D. 169.4 [1916) 19 N. L. B. 374.
1920.
Bbbtbam
C.J.
Fernandov. NikutanAppu
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1020. has been reoeived or not.' In this case it is not clear at what preciseP-ZTTim t*m0“received ” the petition. He may well have done
j. so at the end of the day on the conclusion of the Court. On thisFernando 8UPP°8^on *be petitioner could have ascertained the fact of the* v. Nikulan receipt next day, and could on the same day have filed his notice.
Appu He did not do so till the day after. The delay is thus reduced to adelay of one day. .It appears that hitherto the word “ forthwith ”has not been in practice strictly construed. I am prepared to takethis circumstance into account in considering whether in thisparticular case the- delay has been explained. In all the circum-stances I am not prepard to declare that the delay of one dayprevents us from holding that the notice was given “forthwith ”within the meaning of the section.
I think, however, that, as a general rule, it is the intention of thesection that the notice should be filed on the same day as the receiptis verified or can reasonably be verified. It is important thatthis principle should be observed* all the more so as delays mayinterpose themselves" between the filing of the notice in Courtand its actual delivery by the Fiscal’s officer.
In my% opinion the appeal should be allowed, with costs hereand below.
Shaw J.—I agree.
Appeal allowed.