023-SLLR-1988-V2-GANGODAGEDERA-V.-MERCANTILE-CREDIT-LTD.pdf
GANGODAGEDERAV.MERCANTILE CREDIT LTD.COURT OF APPEALWUETUNGA J. AND S N SILVA J.
CANO 1304/87.
DC COLOMBO NO 93714/M.
MARCH 24. 1988
Civil Procedure — Order for stay of execution — Supreme Court Pules. 1978.Rule 49
The provisions of Rule 49 of the Supreme Court Rules 1978 are imperative.On 11 12 87. the Court ordered issue of notice on The respondents TheAttorriey-at-Law for the petitioner tendered the notice only on 25.01 88 inbreach of the provision that notice be tendered within two weeks. Failure tocomply with the mandatory Rule 49 is fatal to the application.
Casas referred to
Samarawickrema v Attorney-General 1 Sri Skantha's Law Reports 47
Navaratnasmgham v Arumugam (1980) 2 Sri LR 13. RasheedAh v. MohamedAh (198]) 2 Sri LR 29
4 Nicholas v Macan Markar {1981) 2 Sri LR 1
Perera v. Perera (1981) 2 Sri LR 41
Vithana v Weerasinghe (1981) 1 Sri LR 52 (S.C.)
APPLICATION for revision of the order of the District Court of Colombo
S. Smnathambyiot 2nd defendant — petitioner
Chula de Silva with N Caste Chetty for plaintiff-respondent
Cur. adv. vult
May 20.1988WUETUNGA. J.
This is an application by the 2nd defendant-petitioner forrevision under Section 753 of the Civil Procedure Code. Heseeks to revise the order of the learned District Judge dated3.11.87 refusing to stay the execution of writ until theconclusion of the inquiry. When this application was supportedon 11 12.87, this court has made order that notice be issued onthe respondent for 28.1.88 and that the writ already issued bestayed and/or recalled in terms of paragraph (ii) of the prayer tothe petition, until the conclusion of the inquiry in the DistrictCourt.
Mr. jJe Silva for the plaintiff-respondent submits inter alia thatthis application should be dismissed for non-compliance withRule 49 of the Supreme Court Rules. 1978. That Rule is asfollows:— "Where the Court orders the issue of notice, it shall bethe duty of the petitioner within two weeks of the date of theorder of Court unless the Court otherwise directs to tender therequisite notices along with such number of copies of hisapplication as there may be respondents". The order for issue ofnotice has been made on 11.12.87. The Attorney-at-Law for thepetitioner has tendered the notices to be served on therespondents only on 25.1.88. which is clearly not within twoweeks of the date of the order of the Court. Nor has the Courtdirected otherwise. There is. therefore, no question that there hasbeen non-compliance on the part of the petitioner with Rule 49.What has then to be decided is whether the provisions of thisRule are mandatory in nature and non-compliance renders theapplication liable to be dismissed.
In regard to Rule 35(e) of the Supreme Court Rules whichrequires the written submissions to be lodged within 14 days ofthe grant of special leave to appeal, it has been held inSamarawickrema v. Attorney-General. (1) that the provisions areof a mandatory nature. Wanasundera. J. there stated that "theseprovisions have been consistently held by this Court as beingimperative" and dismissed the appeal.
In Navaratnasingham v. Arumugam (2) where there was non-compliance with Rule 46 in that the petitioner had come intoCourt only with a certified copy of the proceedings of a certaindate and of the order thereon and the orders canvassed by himcould not be reviewed in the absence of the earlier proceedingsetc., Soza. J. held that the petition should have been rejected fornon-compliance with that Rule.
Again, in Rasheed AH v. Mohamad AH (3) Soza, J. held that theprovisions of Rule 46 were imperative and where there was non-compliance. the preliminary objection was entitled to succeed.
In Nicholas v. Macan Markar Ltd. (4) Ratwatte. J. consideredthe requirement of Rule 47 that the petition and affidavit shouldcontain an averment that the jurisdiction of the court has notpreviously been invoked in respect of the same matter and heldthat the provision is mandatory and non-compliance wouldrender the application liable to be rejected.
But. the Supreme Court in S.C. Appeal No. 30/81. reported in(1986) B. L. R.. Vol. 1. part VI at 245, reviewed this decision andheld by a majority decision (Wimalaratne, J. with Soza. J.agreeing) that
the Court of Appeal ought to have called upon thepetitioner to perfect his application by*complying withRule 47.
where the parties fail to comply with the requirements inRules 46 to 58, it is open to the Court, under Rule 59.after hearing the parties, either to direct compliance withthe Rules or to dismiss it. and
dismissal is not the only consequence of the breach, atleast of Rule 47.
Wanasundera, J.. however, took the view that the Court ofAppeal had the authority to make an order which, in a fit case,could extend to the making of an order of rejection.
In Perera v. Perera (5) where the petitioner had filed both hisnotice of appeal and the petition of appeal out of time. Soza, J.held that the provisions of Sections 754 (2) and 755 (3) of the CivilProcedure Code are mandatory and accordingly the DistrictJudge had correctly rejected the petition of appeal. He quotedBindra on Interpretation of Statutes. 6th Edition (1975) at page559 where it is stated that "statutes conferring private rights arein general construed as being imperative in character and thosecreating public duties are construed as directory."
In Vithana v. Weerastnghe. (6) where the petition of appeal hadbeen filed out of time and there was an affidavit by the Attorney-at-Law to the effect that the omission was due to his illness, theCourt of Appeal upheld the objection and abated the appeal. But.the* Supreme Court held that Section 759(2) of the CivilProcedure Code which enables relief to be granted by this Courtin the case of any mistake, omission or defect on the part of anyappellant in complying with the provisions of the sectionspertaining to appeals was wide enough to apply to such a case,(per Wanasundera. J.)
Learned counsel for the plaintiff-respondent contends thatRule 49 affects private rights in that the respondents are entitledto receive notice in time and its provisions are mandatory innature. He further submits that even if a Rule is only directory,the petitioner must explain his non-compliance in order that thecourt may exercise its discretion in the matter. In this instance,even after the plaintiff-respondent had in its objections taken upthe question of non-compliance with Rules, no explanation hasbeen submitted by the petitioner in his counter affidavitregarding his failure to comply with the Rule.
Mr. Sinnathamby for the petitioner, however, submits that noprejudice has been caused to the plaintiff-respondent by thepetitioner's failure to comply with this Rule, as the plaintiff-respondent had notice of this application and the order madethereon within a week of the application being supported on11.12.87. A certified copy of the order dated 11.12.87, hestates, had been served when the Fiscal Officer, accompanied byan officer of the plaintiff-respondent, had come to seize theproperty of the petitioner on or about 14.12.87. He furthersubmits that where the parties fail to comply with therequirements set out in the preceding Rules. Rule 59 requiresthe Registrar to list such application for an order of court withoutany delay. But in the instant case the Registrar has not done so.Rule 49. he submits, is only directory in nature and the petitionershould not be penalized for his failure to comply with the same,particularly as no prejudice has thereby been caused to theplaintiff-respondent.
The authorities cited above deal with the Supreme Court Rulesas well as the provisions of the Civil Procedure Code. The tattercan be distinguished from the Rules, as the Code itself makesprovision in Section 759(2) for the Court to grant relief to aaappellant in appropriate circumstances. But a similar provisiondoes nor exist under the Rules. The Court would have adiscretion in the matter only if a Rule is taken to be directory andthe Court is further satisfied on the material before it thatcircumstances exist which justify the exercise of such discretionin the defaulting party's favour.
• Unlike in respect of Rule 47 where the Court could directcompliance with the Rule when such an application is listed bythe Registrar for an order of Court under Rule 59, due to non-compliance. Rule 49 does not admit of similar remedial action asthe time limit imposed by the Rule would by then have alreadylapsed.
In that instant case, the notice returnable date was 28.1 88and notices have been tendered only on 25.1.88. although theCourt had made its order on 11.12.87. The purpose of Rule 49in requiring the notices and the copies of the application to betendered within two weeks of the date of the order is to ensurethat the respondents receive notice within the time schedules.The delay that has ensued in the present case illustrates by itselfthe need to adhere to the Rules, as notices have beendespatched barely three days before the notice returnable date.As Rule 52 permits a repondent to file objections, if any, withintwo weeks of the service of such notice, unless the Courtotljprwise directs, the scheme of the Rules requires that theparties take necessary steps within the period prescribed. It isonly then that the purpose and object of the Rules can beachieved.
Maxwell on .Interpretation of Statutes, 11th Edition (1962)states at page 367 that "enactments regulating the procedure incourts seem usually to be imperative and not merely directory. If.for instance, a right of appeal from a decision be given withprovisions requiring the fulfilment of certain conditions, such asgiving notice of appeal and entering into recognisances ortransmitting documents within a certain time, a strict compliancewould be imperative and non-compliance would be fatal to theappeal".
In the present case, there had no doubt been a -failure on thepart of the Registrar to list the application for an ordefof Court,on the petitioner failing to comply with the Rule. But, that doesnot absolve the petitioner from his obligation to adhere to theRules. Even' if the application had been so listed, the Court couldnot have procured cpmpliance with the Rule. So also, the factthat the respondent may have become aware incidentally of theorder made by Court does not detract from the necessity tofollow the procedure laid down in the Rules.
For the above reasons, I am of the view that the provisions ofRule 49 are imperative in nature and call for strict compliance.Failure to comply with such a mandatory requirement is fatal tothe application.
In any event, the petitioner has not submitted any explanationas regards his failure to comply with the Rule.
As the plaintiff-respondent is entitled to succeed on thisground alone, I do not find it necessary to consider the othersubmissions of counsel.
Accordingly. I would dismiss this application with costs.
$. N. SILVA, J. — I agreeApplication dismissed