030-NLR-NLR-V-36-FRADD-v.-FERNANDO_1.pdf
132
MACDONELL. C.J.—Fradd v. Fernando.
1934Present: Macdonell C.J. and Dalton S.P.J.
FRADD v. FERNANDO.
75—D. C. Colombo, 46,425.
Privy Council—Application for conditional leave——Service of notice—Notice onattorney of party irregular—Substituted service—Appellate ProcedurePrivy Council) Order, 1921, rules 5 and 5a.
Notice of an application for conditional leave to appeal to the Privy-Council must be served on the party personally or his proctorempowered to accept service.
Service on a person holding a power of attorney from a party is insuffi-cient.
Where service cannot be effected on the party personally or his proctor,application for substituted service must be made under rule 5a of theAppellate Procedure (Privy Council) Order, 1921.
T
HIS was an application for conditional leave to appeal to the PrivyCouncil.
F. N. Gratiaen, for defendant, appellant.
H. V. Perera (with him H. E. Garvin), for plaintiff, respondent.October 4, 1934. Macdonell C.J.—
In this case the defendant applied for conditional leave to appeal to thePrivy Council against a judgment in favour of the plaintiff of July 30,1934. The plaintiff resides in England but had executed a power ofattorney in favour of a certain person in Colombo, which gives that person
13?
MACDONELL C.J.—Fradd v. Fernando.
full powers with regard to any proceedings that may be brought in theCourts here either as plaintiff or defendant, including appeals to thePrivy Council. The defendant-appellant served the notice of hisintended application to the Court for leave to appeal which is requiredby rule 2 of Schedule I. to Ordinance No. 31 of 1909, upon the plaintiff’sattorney within the fourteen days from the date of judgment requiredby the said rule 2, and the question before us was whether this serviceupon the plaintiff’s attorney was sufficient. The matter would seemto be regulated by the orders to be found in the Handbook of theSupreme Court of Ceylon at p. 105 sq., called ** The Appellate Procedure(Privy Council) Order, 1921 ”. The relevant rules in that order are 5and 5a, the latter being an amending order which came into force onAugust 3, 1928, and they are as follows : —
“5. A party who is required to serve any notice may himself serveit or cause it to be served, or may apply by motion in Court before asingle Judge for an order that it may be issued by and served throughthe Court; and in the latter case he shall within two days after obtain-ing the order, lodge in the registry a notice in duplicate, prepared forthe Registrar’s signature and duly stamped. The notice may beserved either on the party or on his proctor.
5a. If after reasonable exertion it is found that service of anynotice cannot be duly effected upon a party personally or upon hisproctor empowered to accept service thereof, it shall be competentfor the Court, which may consist of a single Judge, on being satisfiedby eyidence adduced before it that reasonable exertion to effect servicehas been made and that service cannot be effected, to prescribe anyother mode of service. The service substituted by order of theCourt shall be as effectual as if it had been made on the party person-ally or on his proctor. Whenever service is substituted by order ofthe Court, the Court shall fix such time for the appearance of the partyas the case may require.”
These two rules have to be read in conjunction with rule 2 in thfSchedule I. to Ordinance No. 31 of 1909. The would-be applicant mustgive the notice of his intended application within fourteen days and thespadditional rules 5 and 5a say to whom he must give the notice. It wasconceded that the plaintiff who will be respondent upon the appeal to thePrivy Council, had appointed an attorney in Ceylon with full powers toact for her, but it was argued that under the rule 5a of the AppellateProcedure Order service of the notice could not be effected upon herattorney. A very full argument was addressed to us upon the point,but the matter to be decided seems to lie in a very small compass, namely,what is the meaning of service upon “ a party personally ”, (rule 5a)and I think, after due consideration of the authorities that were quotedto us, this must mean the party who is to be made a respondent, him orherself, and that it does not include an attorney under a power ofattorney. In this case the applicant-defendant was certainly in a difficultposition. The actual party, the plaintiff, was not in the Island andthere was not at the moment when the required notice would have to beserved any proctor within the Island “ empowered to accept service ”
134
DALTON S.P.J.—Fradd v. Fernando.
(rule 5a) of such notice on her behalf. The applicant therefore had noone upon whom apparently he could serve the required notice, if the lawdid not allow him to serve it upon the attorney of the plaintiff. It willbe seen however that rule 5a does provide a sufficient remedy in such acase as this. In the absence of the party, him or herself, and in theabsence of a proctor empowered to accept service for that party, theapplicant can go before a single Judge and obtain an order as to howservice is to be effected, and order 5a expressly says that “ The servicesubstituted …. shall be as effectual as if it: had been madeon the party personally or on his proctor The applicant in thiscase has not availed himself of these rights given him by rule 5a and heis out of time unless he can show that the words “ party personally ”include the attorney of that party. It must, I think, be conceded thatthe powers of the Supreme Court with regard to giving leave to appealagainst one of its judgments to the Privy Council are powers outside thescope of the Civil Procedure Code. Various sections of that Code werecited to us, notably sections 6, 7 and 8, 24, 25 and 26, but they all, it seemsto me, refer to actions to be brought in a District Court with a possibleappeal thereafter to the Supreme Court, and they cannot on any fairinterpretation of the language used be held to extend to those otherpowers which the Supreme Court has with regard to granting leave toappeal to the Privy Council. Those powers must be found, it seems tome, in Ordinance No. 31 of 1909 and the rules in Schedule I. thereto andin the Appellate Procedure Order of 1921. Those powers are judicialpowers of the Court but nowhere in them do we find anything sayingthat service of any notice required would be a good service if it were madenot on the party himself or upon his proctor, duly authorized, but uponthe holder of his power of attorney. It would almost seem that thepresent case had been foreseen in rule 5a. You are there given thechoice of serving a notice on the party personally or the proctor dulyauthorized, or of applying to a Judge for substituted service if for anyreason you cannot effect service on the party personally, and if there isno proctor empowered to accept it. Some meaning must surely begiven to the word “ personally ”, and the most natural meaning seemsto be that it refers to the party himself and not to any representative ofhis however fully equipped with a power of attorney.
For these short and simple reasons I think that the service upon theplaintiff’s attorney was insufficient. Confessedly, the fourteen daysallowed by the rules in Schedule I. to Ordinance No. 31 of 1909 which havestatutory force have been exceeded and, if that is so, the applicant is outof time and his application for leave t^appeal must be refused with costs.He presumably has a right to apply to the Privy Council itself for specialleave to appeal, if he is so advised.
Dalton S.P.J.—
1 agree that this application must be refused, since the applicant hasfailed to comply with the provisions of rule 2 of Schedule I. of theAppeals (Privy Council) Ordinance, 1909. He has failed to give theopposite party notice of his intended application, as required by theamended rules.
135
MAARTENSZ A.J.—King v. Wickremasinghe.
Rule 5a was added to the Appellate Procedure (Privy Council) Order,1921, in 1928, to meet such cases as might arise from the party to besaved purposely avoiding service or from his or her absence from theIsland, and applicant, if he was aware that plaintiff was still in England,should have applied to the Court under that rule to direct some mode ofservice other than upon the plaintiff personally.
I am unable to agree with Mr. Gratiaen’s principal argument basedupon the provisions of the Civil Procedure Code that the provisions ofsection 26 of the Code apply here. It is sufficient to say that in myopinion the notice in question is not process of the Court. It did notissue from the Court, nor was it served through the Court. No requestwas made for that to be done here.
I agree that the application must be refused with costs.
Application refused.