017-SLLR-SLLR-2005-V-3-FRANCIS-vs.-PREMAWATHY-AND-ANOTHER.pdf
Francis i/s. Premawathy and Another
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CA
FRANCISVS.PREMAWATHY AND ANOTHERCOURT OF APPEAL.
MS. EKANAYAKE, J.
SRISKANDARAJAH.J.
CA 1948/2003 (REV.).
DC GALLE P/11133.
SEPTEMBER 22, 2005.
Civil Procedure Code, sections 754, 754(4), 755(2), 755(2)(b), 759(f) – Noticeof appeal not served on respondent – Rejected by District Judge – Validity?Failure – Is it fatal ?
The District Court rejected the notice of appeal on an objection being takenthat the notice of appeal was not served on the respondents. The defendant -petitioner moved in revision.
HELD:
One of the imperative requirements of section 755(2) (b) is that acopy of the notice of appeal should be served on the registeredAttorney-at-law of the respondent.
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By the failure to serve a copy of the notice of appeal on the registeredattorney for the plaintiff-respondent neither he nor his client is awarethat an appeal is being filed.
Where the notice of appeal is void it is not possible to give relief undersection 759(2); to give relief under section 759(2) would lead to laxityand carelessness on the part of the appellants.
APPLICATION in revision from an order of the District Court of Galle.
Cases referred to:
Thambirajah vs. Dora! and others CA 1306/87 CAM 6.9.1996.
Sumanaratne Banda vs. Jayaratne CA (Rev) 1025/85 CAM 26.6.87
Kiri Banda vs. Ukku Banda (1986) CALR 191
N.R.M. Daluwatte, P. C. with Gayathrie de Silva for 7m defendant-appellant-
petitioner.
Daya Guruge for plaintiff-respondent-respondent.
Cur.adv.vult.
November 07, 2005.
SRISKANDARAJAH J.The 7th defendant petitioner’s Attomey-at-Law filed a Notice of Appealon the 13th of June, 2003 to appeal against the order of learned DistrictJudge delivered on the 2nd of June, 2003 in the District Court Galle CaseNo. 11133/P. By this order the Learned District Judge has rejected theclaim of the 7lh defendant petitioner in the land sought to be partitioned inthe said case. The Petitioner’s Attomey-at-Law with the aforesaid Noticeof Appeal filed the receipt for the deposit of Rs. 750 being security andalso registered postal article receipts in proof of notice to the Respondents.This fact is borne out by the journal entry No. 33 dated 25.06.2003.Subsequently the Petition of Appeal was filed on 29'h July, 2003. Accordingto the proceedings dated 7.7.2003 the plaintiffs-respondent-respondent’sAttorney-at-law has brought to the notice of Court that no Noticeof Appeal has been served on the Plaintiff or to her Attorney-at-lawin terms of section 754(4) of the Civil Procedure Code and he moved that
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the Notice of Appeal be rejected. The Attorney-at-law of the 7th defendantpetitioner admitted this position and stated that a mistake has occurred in.respect of this matter. The learned District Judge after considering thesubmission made in this regard held on the same day i.e. 7.7.2003 thatthere is no proof of service of Notice of-Appeal on the plaintiff and the 7thdefendant appellant acted in breach of section 755 (2) (b) of the CivilProcedure Code and'hence under section 754, the Court has power toreject the Notice of Appeal and rejected the Notice of Appeal.
The 7lh Defendant Petitioner being aggrieved by the aforesaid order ofrejection of his Notice of Appeal has filed this Revision Application torevise and set aside the said order dated 7.7.2003. The Petitioner submittedthat section 754(4) deals with time limits of filing the Notice of Appeal andin which court it should be presented and who should present it. If theNotice of Appeal is not presented within the prescribed time limit or notfulfilled the aforesaid conditions the Court is empowered to reject the Noticeof Appeal. The Petitioner further submitted that section 755(2) deals withadditional material that has to accompany the Notice of Appeal. But itdoes not empower the trial judge to reject the Notice of Appeal for non-fulfillment of the requirements of section 755(2). The Respondent alsosubmitted that the Petitioner is not prejudiced by not giving notice withinthe 14 days in which the Notice of Appeal has to be filed. He also submittedthat the failure to give notice to the Plaintiff is admittedly by a mistake bythe Attorney-at-law of the 7th defendant respondent therefore the courtcould grant relief under section 759(2) of the Civil Procedure Code. Thissection is to give relief in case of a-mistake, omission or defect made incomplying with the procedure except non-compliance with section 754(4).
In Thambirajah vs. Dora! and othersWijeratne, J held :
“I cannot accept the submission that the Notice of Appeal once ac-cepted cannot be rejected.
Section 754(4) of the Civil Procedure Code states-
“The Notice of Appeal shall be presented to the court of first instancefor this purpose by the party appellant or his registered attorney within aperiod of fourteen days from the date when the decree or order appealed
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against was pronounced, exclusive of the day of that date itself and of theday when the petition is presented and of public holidays, and the court towhich the notice is so presented shall receive it and deal with it as herein-after provided. If such conditions are not fulfilled, the court shall refuse toreceive it.”
This means that the Notice of Appeal should be dealt with as set out inthe succeeding section.
Section 755(1) sets out the particulars which should be contained inthe Notice of Appeal.
Section 755(2)(b) lays down that the notice of appeal shall beaccompanied by proof of service, on the respondent, or on his registeredattorney, of a copy of the Notice of Appeal, in the form of a writtenacknowledgement of the receipt of such notice or the registered postalreceipt in proof of such service.
Thus it is seen that one of the imperative requirements of section755(2)(b) is that a copy of the notice of appeal should be served on theregistered Attorney-at-law of the respondent. This has not been done inthis case.
The purpose of this requirement is to apprise the registered Attorney-at-law of the other party (the respondent) that an appeal is being filed andthat the first step is being taken by tendering the Notice of Appeal. By thefailure to serve a copy of the notice of appeal on the registered Attorney-at-law for the plaintiff-respondent, neither he nor his client is aware that anappeal is being filed.
There was no valid Notice of Appeal as a copy of the notice was notserved on the registered Attorney-at-law for the plaintiff-respondent, whichis a fundamental requirement. Therefore the learned District Judge hasjurisdiction to reject the Notice of Appeal, which has no validity.
In this respect I follow the judgment in Sumanaratne Bandara vs.Jayaratne<2) where it was held that where the notice of Appeal was notduly stamped, the District Judge could reject the Notice of Appeal.
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Section 759(2) provides that in case of any mistake, omission or defect /on the part of any appellant in complying with the provisions of the relevantsections (other than the provisions specifying the period within which anyact or thing to be done), the Court of Appeal may, if it should be of opinionthat the respondent has not been materially prejudiced, grant relief onsuch terms that it may deem just.
In the case of Kiri Banda vs. Ukku Banda<3> where it was contendedthat where there has been a mistake, omission or defect on the part of theappellant in complying with the provisions of these sections, this courtshould grant relief if it should be of opinion that the respondent has notbeen materially prejudiced, P. R. P. Perera, J. stated at 194-
“In my view, if this construction sought to be placed by learned Counselon section 759(2) is accepted, even where such failure is occasioned bygross negligence or carelessness or neglect on the defaulting party or hisregistered Attorney, it would result in such conduct being condoned bythe court. Further it would render nugatory express mandatory provisionsof procedure. I regret I am unable to agree with these submissions.”
In my view these observations apply with equal force to the facts of thiscase. To give relief under section 759(2) would lead to laxity and careless-ness on the part of appellants.
In any event where the Notice of Appeal (which is the starting point andthe foundation of the appeal procedure) is void, as in this case, it is notpossible to give relief under section 759(2) of the Civil Procedure Code.”
The above case applies to the instant Application in all force and thiscourt holds that the Notice of Appeal filed by the 7th defendant-appellant-petitioner in the given circumstances is void therefore the Petitioner can-not be given relief under section 759(2) of the Civil Procedure Code. Hencethis court upholds the order of the learned District Judge dated 7.7.2003and dismiss this application with costs fixed at Rs. 5000.
EKANAYAKE, J. — I agree
Application dismissed.