Fernando v. Ceylon Brewerys Ltd.
v.CEYLON BREWERYS LTD.
COURT OF APPEAL
U. DE Z. GUNAWARDENA, J„
A. NO. 659/97 (REV).
C. COLOMBO NO. 17168/MRNOVEMBER 5TH, 1997
Civil Procedure Code – Amending Act No. 79 of 1988 – s. 24, s. 86 (2), s. 753,s. 754 (4), s. 757 (1), 247 – Exparte-purging default within 14 days of the serviceof Decree – Is it mandatory – Interpretation Ordinance s. 8 (3) – Appealable Order- Does Revision lie.
The learned District Judge vacated the judgment that had been entered againstthe defendant-respondent for default in filing answer, and permitted him to fileanswer. The application to set aside the judgment was not made within 14 daysof service of the decree on the defendant. The plaintiff-petitioner moved in revision.
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Before the amendment to s. 753 by Act, No. 79 of 1988, the Court ofAppeal in the exercise of its revisionary powers could have only madethe 'Same order* which it might have made had the case been broughtbefore it by way of an appeal whereas in the amended form the sectionempowers the Court of Appeal in the exercise of its powers of revisionto make any order 'as the interests of justice may require'.
Per Gunawardana, J.
The amended section enable the court to be more flexible and lesslegalistic in its means and in approach in dealing with a matter for s. 753in its amended form seems to exalt not so much the rigour of the law butunalloyed justice, in the sense of good sense and fairness, so that the basisof the rationale for insistence on the requirement of special circumstances asa condition precedent to the exercise of Revisionary jurisdiction had disap-peared."
s. 86 (2) requires the defendant to make the application to excuse hisdefault within 14 days of service of the decree, in calculating the periodof 14 days Sundays and Public Holidays ought not be excluded. – theexpression "within 14 days of the service connotes less than that time whichin 14 days'.
Although the application seeking to vacate the Decree was late by oneday, it ought not to be rejected on that score alone for the reasons thatthe requirement in s. 86 (2) is merely directory and not mandatory.
Per Gunawardana, J.
'It has been the traditional view that where disobedience of a provisionis expressly made penal it has to be concluded that the provision is mandatorywhereas if no penalty is prescribed non-compliance with the provisions of astatute may be directory.
The mistake on the part of the attorney-at-law in mistakenly taking downthe wrong date for filing the answer on the due date is not a palpableerror of law committed by the learned District Judge.
APPLICATION in Revision from an order of the District Court of Colombo.
Cases referred to:
Ameen v. Rasheed – 6 CLW 8.
Allapitchai v. Sinni Marikkar – 9 SCC 182.
. Sri Lanka General Workers, Union v. Samaranayake – 1996 2 SLR 268.
Wickremasuriya v. Appu Singho – 1 NLR 178.
16 Times Law Reports 119.
Kathiresu v. Sinniah — 71 NLR 450.
Fernando v. Ceylon Brewerys Ltd. (U. De Z. Gunawardana, J.)63
S.L Gunasekera with Kushan de AMs for plaintiff-petitioner.S. Rupasinghe for defendant-respondent.
Cur. adv. vult.
November 5, 1997.
U. DE Z. GUNAWARDANA, J.
This is an application in revision in respect of anorder dated 4.7.1997whereby the learned Additional District Judge had vacated thejudgment that had been entered against the defendant-respondent fordefault in filing answer and also permitted him (the defendant-respondent) to file answer.
At the hearing before me, the defendant-respondent put forwardone solitary argument, ie that the application in revision does not liein respect of the aforesaid order inasmuch as the relevant order wasappealable. The plaintiff-petitioner, on the other hand, challenged thecorrectness and the validity of the aforesaid order of the learnedAdditional District Judge on two grounds which were as follows:
that the judgment and decree for default entered as against thedefendant-respondent could not have been set aside by thelearned Additional District Judge since the application seekingto set aside the same had not been made to the District Courtwithin 14 days of the service of the decree on the defendant-petitioner;
that the learned Additional District Judge had, to quote verbatimfrom the somewhat needlessly pungent written submissions thathad been filed on behalf of the plaintiff-petitioner: “…. theAdditional District Judge had committed another palpable errorof law in holding that the evidence of J. A. Welcome establishedreasonable grounds for default of the respondent".
But the sequel would show that the learned Additional DistrictJudge's view that the lapse or the slip on the part of the attorney-at-law in mistakenly taking down, the wrong date for filing answer isa good ground of exculpation (for default in filing answer on the duedate) and cannot be faulted in the least, let alone describe the view
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taken by the learned District Judge as a “palpable error”, more soas his view finds a warrant in the decisions of the Supreme Courtwhich makes such condemnatory submissions on the part of thecounsel for the plaintiff-petitioner, in relation to the Additional DistrictJudge's finding or view even less excusable. Submissions would beall the better for being measured and attuned to politeness as opposedto bring gruff.
It is to be observed that, if as argued by the counsel for thedefendant-respondent, an application in revision in respect of an orderis precluded by or in virtue of the fact that an appeal too lies in respectof the same order, then that would entail a dismissal or rejection ofthe application in revision and the two grounds, stated therein ie (a)and (b) above, impeaching the correctness of the order of the learnedDistrict Judge, would not arise for consideration. As such, it is pro-posed to, first, consider the question whether an application in revision(in respect of the aforesaid order of the learned District Judge dated04.07.1997) ought not to be entertained or rejected in limine sincean appeal also lies in respect of the same order. The authorities citedby either side reflect 2 schools of thought or ways of thinking in regardto the question – one holding that in respect of an order that isappealable the availability of relief by way of revision is almost asunrestricted as the availability of relief by way of an appeal and theother taking the view that one can avail oneself of the remedy inrevision only upon proof of exceptional circumstances.
But one salient point calls for remark, ie that all the decisions thathave been cited by either side had been made prior to the amendmentof section 753 of the Civil Procedure Code by Act No. 79 of 1988- that being the section (ie section 753) making provision for reliefby way of revision – there being no decisions of the Superior Courts,subsequent to the amendment in regard to the relevant question -wherein the scope of the amendment had been considered. Anyhow,no such authority has been cited.
The essence of the difference between the two forms of section753 ie in its original and amended form is this: as the said sectionstood originally, the Court of Appeal or the Supreme Court in theexercise of its revisionary powers could have only made the “sameorder" which it might have made had the case been brought beforeit by way of an appeal whereas in the amended form the section
CA Fernando v. Ceylon Brewerys Ltd. (U. De Z. Gunawardana, J.)65
empowers the Court of Appeal, in the exercise of its powers of revision,to make any order "as the interests of justice may require".
Thus it would be noticed that the amended section enables thecourt to be more flexible and less legalistic in its means and inapproach in dealing with a matter for section 753 in its amended formseems to exalt not so much the rigour of the law but unalloyed justice,in the sense of good-sense and fairness. So that the basis of therationale for insistence on the requirement of special circumstancesas a condition – precedent to the exercise of revisionary powers haddisappeared as a consequence of the amendment of section 753 ofthe Civil Procedure Code by virtue of which amendment the Courtof Appeal is now freed from the duty or rather the necessity of making"the same order" as it would have made in appeal and is empoweredto make any order "as the interests of justice may require".
A party seeking relief by way of revision cannot now, ie after theamendment of section 753 of the Civil Procedure Code be asked whatspecial reasons or circumstances justify his seeking the same orderand consequently the same relief when, in fact, he can obtain thesame order (and consequently the same relief) by the ordinary methodof appeal, for the order that the Court of Appeal can now make inthe exercise of its revisionary jurisdiction is substantially different fromthe order that it could have made formerly. When the order that couldbe made in appeal prior to introduction of the amendment to section753 of the Civil Procedure Code was the "same" as that could bemade in revision – there was good reason for thinking that theprocedure in revision was, more or less, alternative to procedure inappeal or vice versa and the two remedies were available in sucha way that when one is available – particularly when the right of appealwas open to a party, the other remedy in revision must be refused,
– except in exceptional circumstances. That being so, the present state. of the law is such that existence of special circumstances need notbe shown as a condition – precedent to the invocation of the reliefby way of revision.
The fundamental reason for restricting or not making the remedyof revision freely available seems to be succinctly summed up byAbrahams, CJ in Ameen v. Rasheed'' as follows: “It has beenrepresented to us on the part of the petitioner that even if we findthe order to be appealable, we still have a discretion to act in the
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revision. It has been said in this court, often enough, that revisionof an appealable order is an exceptional proceeding and in the petitionno reason is given why this method of rectification has been soughtrather than ordinary method of appeal. I can see no reason why thepetitioner should expect us to exercise our revisional powers in hisfavour when he might have appealed and I would allow the preliminaryobjection and dismiss the application with costs".
But the validity of the above-reason for denying the relief in revisioncan no longer be accepted with favour inasmuch as the Court ofAppeal in consequence of the amendment of section 753 by Act No.79 bf 1988 is now clothed with greater amplitude of power in makingorders and is not confined, as formerly, ie before the aforesaidamendment, to making the "same order" which it might have madehad the matter been brought before it by way of appeal. Since, priorto the amendment of section 753 the court could whilst acting inrevision only make the "same order” as it could have made in theexercise of its appellate jurisdiction – the right of appeal and rightin revision were justifiably treated as more or less, alternative remedies- available, more or less, in such a way that when one was acceptedor made available the other had to be rejected or refused. When,as was the case prior to the amendment of section 753 of the CivilProcedure Code, the reliefs available or the orders that could be madeby the court, by way of appeal and revision, were conterminous orthe same – it could legitimately and even logically be inquired orqueried, as had been done by His Lordship, Abrahams, CJ, in theexcerpt of the judgment cited above, as to why the revisionary process,which may be described as a privileged procedure, was invoked inpreference to that of appeal, several advantages or benefits beingattendant on the revisionary process which would not be availableto one who seeks relief by way of an appeal (for instance one neednot furnish security or keep to certain prescribed time-limits as in thecase when one appeals against an order) – the recourse to revisionwas treated as an extraordinary procedure in contradistinction to theprocedure of appeal which was considered to be the normal remedy,when the order in question was appealable – as is the order in thiscase before me.
For the aforesaid reasons I hold that existence of special circum-stances, in any event, is not an indispensable condition, as such, forthe exercise of revisionary powers vested in the Court of Appeal. For
Fernando v. Ceylon Brewerys Ltd. (U. De Z. Gunawardana, J.)67
reasons given above the application in revision filed by the plaintiff-petitioner ought to be entertained which entails on the court the dutyof considering the soundness of the 2 grounds set up therein chal-lenging the correctness of the order dated 4.7.1997. It is cause forsome dismay that the counsel acting or appearing for the defendant-respondent (before us) did not think it worth – while to take thetrouble – apart from saying that an application in revision does notlie to say one syllable in support of the aforesaid order (itself) of thelearned Additional District Judge made in favour of the defendant-respondent vacating the decree for defalt (on the part of the defendant-respondent). Dismay is all the greater for it was incumbent upon tothem to have put forward arguments to support the order of the learnedAdditional District Judge (which order is the subject of revision pro-ceedings before me) to expiate or make amends, at least out of regret,for the original sin of the attorney-at-law (who appeared for thedefendant) and whose lack of alertness or laxity in taking down awrorng date for filing answer had fathered all these troubles on thedefendant-respondent. To consider the grounds (a) and (b) referredto above in order, it has been submitted by the plaintiff-petitioner thatthe application to set aside the judgment (that had been enteredagainst the defendant for default in filing answer) not having beenmade "within fourteen days of the service of the decree on thedefendant as required by section 86 (2) of the Civil Procedure Codeought to be rejected".
The decree had been served on the defendant-petitioner on 3.2.1997and the application to set aside the same had been made on 18.2.1997.So that the defendant-respondent in making the application to theDistrict Court was late by one day, for the Sundays and public holidayscould not be excluded in reckoning the 14 days as the learnedAdditional District Judge had done. It is to be observed that the saidsection 86 (2) requires the defendant to make the application to excusehis default "within 14 days of the service of the decree" which meansthat the application must be tendered to court inside 14 days andnot beyond that specified period. The expression “within 14 days”connotes less than that time which is 14 days. The fact that the framersof the Code of Civil Procedure intended that, in calculating the periodof 14 days, – Sundays and public holdays ought not to be excludedis evident from an examination of sections 754 (4) and 757 (1) ofthe Civil Procedure Code where the identical time-limit, that is, withina period of 14 days, is stipulated for presenting (to court) of the notice
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of appeal, and application for leave to appeal respectively. But whatis significant is that in the body of the said two sections themselves,ie 754 (4) and 757 (1) it is stated that in reckoning the 14 days forthe purpose of filing the notice of appeal, and the application for leaveto appeal respectively, Sundays and public holidays have to beexcluded or not to be counted. The framers of the code, by deliberatelyomitting to say so in 86 (2) of the Civil Procedure Code, that is, that14 days ought to be reckoned exclusive of public holidays andSundays, must be taken to have clearly intended that the period of14 days within which the application has to be made, in terms of86 (2) of the Civil Procedure Code, has to be reckoned inclusive ofall days which fall within that period not excepting public holidays andSundays.
It would be germane to point out that that the above constructionof section 86 (2) of the Civil Procedure is countenanced by section8 (3) of the Interpretation Ordinance and is in keeping with it for thesaid section stipulates for the exclusion of public holidays from thecomputation of time only where a limited time not exceeding 06 daysis appointed for the doing of any act or the taking of any proceedingand not when the time-limit exceeds 06 days as in the periodprescribed by section 86 (2) of the Civil Procedure Code.
So that exclusion of Sundays and public holidays is authorized orpermitted only when an act has to be done in less than six daysor when the relevant law itself, which requires that act to be donespecifically excludes Sundays and public holidays from the reckoning.In fact, it has been held in an analogous case, that is, that in reckoningthe 14 days within which an action under section 247 of the CivilProcedure Code must be brought – Sundays and public holidays arenot excluded. Vide Allapitchai v. Sinni Marika^
This case was not cited to the Additional District Judge by thecounsel who appeared for the plaintiff-petitioner at the inquiry nor wasit cited to me. Perhaps, the learned Additional District Judge couldhave been dissuaded or prevented from making the "palpable errors"of law that he is airily alleged to have committed had the counsel,whose duty it was to have done so, cited the relevant authorities tothe Additional District Judge. I have sometimes wondered whether theBar has any raison d'etre if the Bench has to decide un-aided.
Fernando v. Ceylon Brewerys Ltd. (U. De Z. Gunawardana, J.)69
Although the application seeking to vacate the decree was lateby one day, I feel, it ought not to be rejected on that score alonefor the reason that the requirement in section 86 (2) of the CivilProcedure Code is merely directory and not mandatory. One mustask the obvious question: could it possibly have been the intentionof the legislature that the application to purge default ought to berejected without consideration of the matters urged therein for no otherreason than that it was somewhat belated or late by just one day,as is the case in hand. The legislature itself had studiously refrainedfrom spelling out the consequence of non-compliance with the require-ment in section 86 (2) as to the time-limit within which the applicationhas to be tendered to court and also not chosen to say whether thisprovision is mandatory or directory. That being so, the court itself mustdetermine the matter “exercising a nice discrimination along broad-based common-sense lines".
The question whether provision in a statute is mandatory ordirectory is not capable of generalisation but when the legislature hasnot said which is which, one of the basic tests for deciding whethera statutory direction is mandatory or directory is to consider whetherviolation thereof is penal or not. It has been the traditional view thatwhere disobedience of a provision is expressly made penal it has tobe concluded that the provision is mandatory whereas if no penaltyis prescribed non-compliance with the provisions of a statute may heldto be directory.
The judgment in Allapitchai case referred to above can be dis-tinguished in that a cardinal aspect, viz whether the provision stipu-lating that a 247 action ought to be filed within the time-limit prescribedby that section, is mandatory or directory has not been consideredtherein – although that judgment had considered the other questionwhether the Sundays and public holidays ought to be excluded whenthe relevant provision of the law was silent in that regard. In interpretinga provision of the Industrial Disputes Act which required that everypetition of appeal, to be filed within 30 days, “shall" be accompaniedby a certificate issued under the hand of the President of the LabourTribunal that the appellant had furnished security – it was held bythe High Court of Colombo in case No. HCA. 561/92 – that therequirement that the said certificate ought to "accompany" the petitionof appeal was not mandatory but merely directory and the relevant
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certificate could be furnished even after the lapse of 30 days. Thejudgment of the High Court was upheld by the Supreme Court bya Bench of three Judges in Sri Lanka General Workers, Union v.Samaranayake^ piece de resistance, so to speak, of the High Courtdecision was that, inasmuch as the consequence of non-compliancewith the relevant provisions of the law relating to filing of appeal withinthe stipulated period was not spelt out, it could legitimately be inferredthat the legislature intended that a discretion should reside in the handsof court to decide for itself, after considering the degree of importanceof the provision that has been disregarded and upon a review of allthe relevant considerations, whether the relevant provision is what iscalled mandatory or only directory. As had been stated by LordColeridge, CJ: "An absolute enactment must be obeyed or fulfilledexactly but it is sufficient if a directory enactment be obeyed or fulfilledsubstantially".
In a case referred to in Bindra on Interpretation page 669 it hadbeen stated that: "a statute which requires certain things to be doneor provides what result shall follow a failure to do them, is mandatorybut if the statute does not declare what result shall follow a failureto. do the required acts it is directory".
To quote from a judgment of the Indian Supreme Court: "after all,courts are to do justice, not to wreck this end product ontechnicalities. Viewed in perspective, even what is regarded asmandatory traditionally may, perhaps, have to be moderated intowholesome directions to be complied within time or in extendedtime…".
The requirement in section 86 (2) of the Civil Procedure Codebeing, in my view, directory the defendant-petitioner must be held tohave substantially complied with the relevant provision by tenderingthe application to court one day later than the period or date on whichhe ought to have tendered the application to court in terms of section86 (2) of the Civil Procedure Code to ensure compliance to the veryletter of the law – the general rule of the law being, as pointed outabove, that a mandatory provision must be fulfilled exactly but it issufficient if a directory provision is complied with substantially".
It is not without interest to note that in Wickramasooriya v. AppuSinghom it was held that in calculating a period within which an act
Fernando v. Ceylon Brewerys Ltd. (U. De Z. Gunawardana, J.)71
is required to be done, the day from which such period is to becommenced is excluded and the last day of such period is included.If this test is applied the defendant-respondent's application to theDistrict Court made in terms of section 86 (2) of the Civil ProcedureCode falls within the prescribed period of time. But this view has notbeen followed in the decision of this matter for a just decision, withinthe framework of the law, can be arrived at by other means.
It remains to consider whether the mistake as to date on whichthe answer was to be filed, made by the attorney-at-law, vizMr. Welcome, who had been retained by the attorney-at-law for thedefendant-respondent on record, viz Mr. G. G. Arulpragasam can beheld to be a "reasonable ground" for default in filing answer. Accordingto the evidence given by Mr. Welcome at the inquiry (before thelearned Additional District Judge) into the application to purge defaultMr. Welcome had stated that he had mistakenly or inadvertently takendown 20th September as the date for filing answer when, in fact, thecorrect date given by the court was 30.8.1996 which correct date wasdiscovered only on an inspection of the case record on a later date.According to the evidence of Mr. Welcome and the facts averred toin his affidavit by Mr. Arulpragasam (who had filed the proxy for thedefendant-respondent) – Mr. Arulpragasam had retained Mr. Welcome(on the summons returnable date) to tender the proxy to the courtand obtain a date to file answer. It is to be observed that in termsof the proviso to section 24 of the Civil Procedure Code an attorney-at-law instructed by the registered attorney represents the registeredattorney-at-law in court. The learned Additional District Judge hadaccepted the evidence of Mr. Welcome and had evidently held themistake made by him (Mr. Welcome) to be a reasonable ground forthe default on the part of the defendant-respondent in not filing answeron the due date, and had vacated the decree that had been enteredafter trial ex-parte. As stated above, the view taken by the AdditionalDistrict Judge that, on the facts referred to above, the decree fordefault ought to be set aside is fully vindicated by two decisions ofthe Supreme Court reported in 16 Times Law(5> Reports page 119Kathiresu v. SinniaH6) which are on all fours with the facts of the casebefore me. The above decisions of the Supreme Court are not onlypersuasive but in fact, have a binding force so far as this court isconcerned. In both the said cases cited above, the proctor and hisclient being absent on the trial date because the proctor had bymistake taken down wrong date of trial – Decree Nisi that had been
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entered on account of the non-appearance was set aside. It is to berecalled that it was in relation to the view or the finding of the learnedAdditional District Judge – ie that the mistake on the part of theattorney-at-law in mistakenly taking down the wrong date for filing theanswer was a reasonable ground for default in filing the answer onthe due date – that the learned counsel for the plaintiff had opinedthat “the learned Additional District Judge had committed anotherpalpable error of law" – when, in fact, the learned Additional DistrictJudge's view was supported by decisions of the Supreme Court oneof which decisions was a celebrated decision of a former Chief Justice- renowned for his incisive reasoning.
For the aforesaid reasons I do hereby make order affirming theorder of the learned Additional District Judge dated 4.7.1997 anddismissing the application in revision filed by plaintiff-petitioner.