069-NLR-NLR-V-36-JAYAWARDENE-v.-ABDUL-CADER-et-al.pdf
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AKBAR J,—Jay awar dene v. Abdul Cader.
1934Present: Akbar J.
JAYAWAEDENE v. ABDUL CADER et al.
152—C. R. Colombo, 83,962.
Appeal—Tender of security for respondent’s costs—Notice on proctor—Irregu-larity—Right to relief—Civil Procedure Code, s. 756.
Where notice of tender of security for costs of appeal was sent to therespondent’s proctor and was lost in the post,—
Held, that the appellant should be given relief under the provisions ofsection 756 of the Civil Procedure Code.
T
HIS was an application for relief under section 756 of the CivilProcedure Code.
H. V. Perera (with him Mahroof), for petitioners, applicants.Wickremanayake (with him H. W. R. Weerasooria), for respondent.February 20, 1934. Akbar J.—
This is an application for relief under the proviso to section 756 of theCivil Procedure Code added by Ordinance No. 42 of 1921. Judgmentwas delivered by the District Judge against the petitioners on May 8,1933, and petition of appeal was filed on May 17, 1933.
Under section 756 of the Civil Procedure Code the petitioner hasforthwith to give notice that he will on a certain date within the timeprescribed by the section tender security for the respondent’s costs ofappeal. What took place subsequent to the filing of the petition of appealhas been detailed by Mr. Abdul Cader, proctor, one of the petitioners,in his evidence which has been accepted by the learned Commissioner.This witness stated that he had drafted a motion regarding thesecurity of May 17, and had sent it to the plaintiff’s proctor by hisclerk who gave evidence, and that the clerk had been unable to meet thisproctor although he went on three occasions to his branch office atHulftsdorp. On May 20 a letter (copy X 1) was posted by him to the
AKBAR J.—Jay a war dene v. Abdul Cadet.
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plaintiff’s proctor. Letter X 1 stated the fact that on May 17, Mr. AbdulCader's clerk had failed to see the addressee on three or four occasionsand that the clerk had brought back the motion as the addressee was notin his office and that the Court had ordered notice to be served on theaddressee on May 19. As there was no time to serve the notice throughthe Fiscal the addressee was to take notice for May 22. On May 20,1933, the sum of Ks. 20 was deposited.
The plaintiff’s proctor denied that he had received letter X 1 but headmitted that somebody may have come to see him in his office atHulftsdorp and missed him. Mr. Saravanamuttu, proctor for petitioners,also gave evidence, corroborating Mr. Abdul Cader that a letter (a copyof which is X 1) was typed by his clerk, was signed by him and sent toMr. Abdul Cader. The learned Commissioner has accepted the evidenceof all the proctors. His finding amounts to this, that the plaintiff’sproctor was missed by Mr. Abdul Cader’s clerk on three occasions onMay 17, the day on which the petition of appeal was filed, and that aletter of which X 1 is a copy was posted on May 20 to the plaintiff’sproctor, and that the letter did not reach the plaintiff’s proctor.
The Commissioner’s finding on the evidence is supported by intrinsicevidence furnished by the documents X 1 and the motion of May 17.This motion is dated May 17 and is signed by Mr. Saravanamuttu,proctor for the first and second appellants, and two other proctors onbehalf of third, fourth, and fifth appellants. This is the motion whichMr. Abdul Cader’s clerk took with him fruitlessly to the office of theplaintiff’s proctor.
The learned Commissioner was right in making order that the appealshould abate, as the notice was not served through the Fiscal and he hadno power to grant relief. Under section 356 of the Civil Procedure Codeall processes of Court have to be issued for service to the Fiscal, unlessthe Court otherwise directs. That was not done in this case, butMr. Abdul Cader stated that the practice was for notices of deposit ofsecurity and of appeals to be served direct on the proctor of the other sideand there is evidence of this practice in this record. The proctor for theplaintiff has received notice in this way of the deposit of security in thepetition No. 152 now before me on June 16, 1933, for June 23, 1933.
Under the proviso to section 756 the Supreme Court has the powerto grant relief in the case of any mistake, omission, or defect on the partof the appellant in complying with the provisions of that section, if theCourt should be of opinion that the respondent has not been materiallyprejudiced. I do not think that the respondent has been materiallyprejudiced here, as the security was deposited and the only questionleft was as to its sufficiency. As regards the sufficiency of Rs. 26, therespondent’s advocate withdrew a similar objection to that amount onJune 29, 1933, in the matter of petition No. 152 which is the one nowbefore me.
In Siilua v. Goonesekere1 relief was refused because the petition of appealwas filed on November 14, 1928, and the record, was not sent up till May27, 1929, and even then no notice of appeal had been taken out or servedon the respondents.
1 31 N. L. R. 18*.
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Inspector of Police, Negombo v. Hussain.
In the case now before me. the petitioners had taken all the necessarysteps as found by the Commissioner, only the notice of motion had goneastray in the post. In my opinion this is a fit case for relief, otherwisethe words of the proviso to section 756 will be meaningless.
A similar objection was taken in Kangany v. Rajah* and upheld beforethe amendment by Ordinance No. 42 of 1921 was passed. In Mendis v.Jinadasa*, the Supreme Court allowed a bond hypothecating the securitydeposited to be signed after objection to the appeal was taken. DeSampayo J. in the course of his judgment said as follows:—“ I do notthink such an extensive interpretation, if it is to be so called . . . .—as the bond is not referred to in section 756 which only was amended by42 of 1921, and is only referred to in section 757, which was not amended,—is unjust or unfair when the object of the entire legislature is taken intoconsideration …. I think, therefore, that we ought to apply theprovisions of the new Ordinance, as it is very plain that the omission tocomply with the requirements of hypothecation by a bond was not adeliberate omission, but due clearly to an oversight; and no prejudice willbe caused to the respondent if we say that the amount be now hypothe-cated by a bond. ”
I would therefore, acting under the proviso to section 756, set asidethe order of abatement of the appeal made on June 15, 1933, and sendthe case back for the perfecting of the appeal on the following conditions: —The petitioners will within ten days of the receipt of the record in thelower Court deposit Rs. 21 costs of the inquiry in the lower Court, whichI hold the respondent to be entitled to draw, and also take steps to perfectthe appeal by issuing notice of the deposit of security through the Fiscalon the respondent or his proctor.
The costs of this appeal will abide the final decision of this matter.
Application allowed.