032-NLR-NLR-V-37-JAMES-v.-KARUNARATNA.pdf
154
KOCH J.—James v. Karunaratna.
1935Present: Koch J. and Soertsz AJ.
JAMES v. KARUNARATNA.
251 and 252—C. R. Panadure, 2,402.
Appeal—Two defendants separately represented—Both join in one petition—Insufficient stamps—Irregularity.
Where two defendants separately represented by proctors joined instating their grounds of appeal in one document which contained stampssufficient to cover one petition of appeal,—
Held, that the petition of appeal was not sufficiently stamped andshould be rejected. In such a case Counsel is not entitled to ask thatthe names of one of the appellants be struck out and the appeal be treatedas that of the other.
ASE referred by Soertsz A.J. to a Bench of two Judges.
L. A. Rajapakse, for defendants, appellants.
N. E. Weerasooria (with him T. S. Fernando), for plaintiffs, respondents.
Cur. adv. vult.
October 10, 1935. Koch J.—
This appeal raises an interesting point which arises on the objection bythe respondents that the petition of appeal is not properly stamped andshould therefore be rejected.
It would appear that in this action the defendants, three in number,were sued in ejectment by the plaintiffs who are the respondents to thisappeal. Answer was filed on behalf of all these defendants throughMr. J. R. de Silva, their proctor. At a later date the proxy given by thefirst defendant to Mr. Silva was cancelled and Mr. M. H. Jayatillekefiled a new proxy in his favour. Thereafter accordingly the first defendantwas represented by Mr. Jayatilleke, and the second and third defendantsby Mr. de Silva. This arrangement continued till the trial was concludedand a petition of appeal filed.
The judgment and decree inter alia directed the ejectment of all thedefendants. The petition of appeal that was filed against the decree wasthat of all three defendants who joined in presenting it. It was writtenon the same paper and signed by the two proctors on behalf of theirrespective clients. This petition bore a stamp of the value prescribed foran appeal (single) to this Court.
I think it is quite clear that though written on one paper, there are inactuality two appeals to this Court, one by the first defendant and theother by the second and third defendants. The fact that the defencesdid not clash and that the redress claimed in the appeal is the same doesnot, to my mind, make any difference. Section 754 of the Civil ProcedureCode, taken in conjunction with section 755, contemplated that a partyaggrieved by a decree might appeal by presenting in one form a writtenpetition of appeal within the time specified and on production of a stampof the prescribed value. Section' 760 of the Code makes provision forparties who have a common cause, whether as plaintiffs or defendants toobtain benefit from the appeal by anyone of them, although the othershave not been joined. The conclusion is irresistible that if more parties
SOERTSZ AJ.—James v. Karunaratna.
155
than one appeal, each party must be considered to have separatelyappealed. This of course is subject to the accepted practice that two ormore persons who sign a joint proxy in favour of a proctor to representthem can be treated for the purpose of pleadings and the appeal asconstituting one party.
The judgments of Macdonell C.J. and Garvin J. in British CeylonCorporation Ltd. v. The United Shipping Board1 are strongly supportiveof this view.
If then the petition of appeal is signed by two different parties, itfollows that the paper contains two appeals and this must bear the aggre-gate stamp duty prescribed for two appeals. This has not been done,and if the matter rested there the appeal should be dismissed. (BritishCeylon Corporation Ltd v. The United Shipping Board (supra).)
There is ample authority besides—Salgado v. Peiris5, Sinnatamby v.Tangamma % and Hunt v. Attorney-General *.
There has arisen, however, a point of some difficulty as the result of anapplication made by the appellants’ Counsel that he should be permittedto strike out one set of appellants and argue the appeal on behalf of theother as if that other were the only appellant to this Court and the appealwas solely by him. He takes this step obviously to surmount the diffi-culty that he realizes is confronting him, and incidentally because undersection 760 he can claim that if he succeeds on the appeal, the benefit canenure to the party struck out. I do not see that it is clear that he haslegal authority to adopt such a course when the set of appellants he movesto be struck out is as much responsible for preferring the appeal as theparty he wants retained. However this may be, the fact remains thatwhen the paper which contained two separate appeals was presented tothe Court of first instance, that paper was not properly stamped. To itwas affixed the proper stamp for one appeal but not for two. Thedifficulty has arisen by reason of the fact that while section 750 providesconditions which if not fulfilled the Court shall refuse to receive thepetition, the necessity for such petition bearing the proper stamp is notone of those conditions.
Provision for stamping the petition aright is made in section 755, butthis section does not state what is to happen if the stamp is insufficientor if the document is not stamped at all. In my opinion, as I haveremarked before, there is authority—which I cannot help but followand which I consider sets out the right view—to cover a case such asthis. The crucial date is the date of presentation. On that date thepetition of appeal was not properly stamped. The irregularity cannotbe cured later.
I therefore hold that the application cannot be permitted and that theappeal must be rejected. The appellants will pay the respondents’ costs.Soertsz A.J.—
The facts are stated fully in the judgment of my brother Koch. Onthose facts two questions arose for consideration. First, is the petitionof appeal sufficiently stamped in that two sets of defendants separatelyrepresented by proctors at the date of the filing of the appeal have joined
l 3fi N. J,. R. 22–,.3 (10121 1 C. A. C. 151.
J (1009) .V. /.. JTO.1 (1917) 4 C. W. R. 265.
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SOERTSZ A.J.—James v. Karunaratna.
in stating their grounds of appeal on one paper stamped with stampssufficient to cover one petition of appeal ? Second, if the petition ofappeal is not sufficiently stamped to cover the appeals of both defendants,is Counsel who appears on appeal for both defendants entitled to ask thatthe name of one of the appellants be struck out from the petition of appealand that the petition be treated as the appeal of the other ?
I agree with my brother, that the first question must be answered inthe negative. There are contained in the paper submitted the appealsof defendants represented by different proctors. They decided that theyshould both appeal and although they stated the grounds on which theywere appealing on one paper there were really two appeals and each ofthe appellants was liable to furnish a stamp sufficient to cover his appeal.If their appeals succeeded with costs, each proctor was entitled to tax aseparate bill for costs of appeal. The difficulty I felt in the case when Ireferred it to a Bench of two Judges arose on the application made byCounsel that he should be allowed to strike out the name of one appellantand argue the appeal as if it were the appeal of the other alone. Hecontended that the judgment of Garvin J. in British Ceylon Cor. v. TheUnited Shipping Board1 supported his application. Garvin J. said“ Counsel then invited us to treat the appeal as that of the second defendantand reject the appeal of the first defendant. I cannot well see howwe can adopt such a course. There is nothing which enables one to saythat this is the second defendant’s petition of appeal and not that of thefirst defendant. It purports to be the petition of appeal of both of them.Had this been a case which came within the exception created by section 760of the Civil Procedure Code it might reasonably have been contended thatthere could be no objection to their joining in one petition. This however isnot such a case ”.
Now section 760 enacts “Where there are more plaintiffs or moredefendants than one in an action and the decree appealed aganist proceedson any ground common to all the plaintiffs or all the defendants, anyone of the plaintiffs or of the defendants may appeal aganist the wholedecree and thereupon the Appellate Court may reverse or modify thedecree in favour of all the plaintiffs or the defendants, as the case maybe”. It seems to me that this only enables one of a number of plaintiffsor defendants who come within this exception, to appeal, and if he suc-ceeds, to obtain a benefit for himself and his co -plaintiff and co-defendantswho had not appealed. That is not the case here. Two defendantswho could have brought themselves within the’ rule provided by section760, have chosen not to take the benefit of that rule, and have eachpreferred an appeal. It must be assumed that they had good reasons fortaking such a course. ' In such a case, the important part of Garvin J.’sdictum cited above is that “ There is noting which enables one to saythat this is the second defendant’s petition of appeal and not that of thefirst defendant. It purports to be the petition of both ”. That is goodreason for rejecting the application of Counsel that one of the partiesappellants be struck out.
The appeal must be rejected with costs.
Appeal rejected.
1 30 N. I., li. 223 at p. 23$.