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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Middleton.
JULIUS v. HODGSON.
C., Badulla, 2,169.
Civil Procedure Code, a. 765—Leave to appeal notwithstanding lapse oftime—Failure to appeal owingtoabsenceofproctorfrom the
station—“ Causes not within one’s control ”—Default of proctor.Where a party fails to appealintime owingto theabsence of
his proctor from the station, such party is not entitled to leave toappeal notwithstanding the lapseof time,thefailurenot being
duo to any cause beyond his control, but to default on the part ofthe proctor.
Hutchinson C.J.—The practiceisnot togive leaveto appeal
where the only ground relied on is that the appellant or his proctormade some miscalculation of time or some other mistake, or thatthe failure was due to the proctor's neglect.
HIS was an application by the defendant for leave to appeal.
notwithstanding lapse of time, under chapter LX. of the Civil
Procedure Code. In support of the application the defendant filed thefollowing affidavit, sworn to. by his proctor, stating the circumstancesunder which he failed to file the petition of appeal in time: —
“1. I was proctor for the defendant in the above-named action.
“ 2. The plaintiff’s intestate and the defendant were partners inrespect of a certain estate called Somerset estate, and the plaintiff’s
1 (1903) 7 N: L. R. 173,
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1908. intestate having died, his share in the said estate was purchasedJanuary 29. by the defendant, and the value of the said share, including theplaintiff’s intestate's share of the partnership assets, as shown inthe account books of the partnership, was paid to the plaintiff.
“ 3. The plaintifE sued the defendant in the said action, interalia, tor an accounting of the promissory notes obtained fromkanganies for payments made to them during the subsistence of thepartnership and outstanding at the date of the taking over by thedefendant of the plaintiff's intestate’s share in the estate, and fora decree rendering the defendant liable either to realize the saidpromissory notes or to pay to the plaintiff the value of theplaintiff’s interest therein.
“ 4. The District Judge on November 13, 1907, gave judgmentfor the plaintiff as prayed for by him.
“5. On November 17, 1907, I forwarded a copy of the decreeentered in the case to the defendant’s proctors in Colombo, whohave advised him in the case, and on November 18, 1907, I for-warded them a copy of the District Judge’s judgment. Betweenthe 13th and the 17th I was away from Badulla on urgent business.
“ 6. To the best of my knowledge and belief on the 19th idemthe said proctors wrote to the defendant on the subject of the case,and inquiring whether he desired to appeal.
“ 7. On receipt of their letter the defendant on November 21,1907, wired to them instructing them to appeal.
“ 8. On November 23, 1907, the said proctors, having preparedthe petition of appeal and having had it settled by counsel inColombo, forwarded it to my address at Badulla to be filed on orbefore November 26, 1907, the last day for filing the said petition.
“ 9. The said petition reached Badulla on the afternoon ofNovember 24, when I was away at Hatton.
“ 10. There was not sufficient time for the petition to be sent toHatton for my signature and to be returned by November 26, 1907.
“11. It- was due solely to matters in connection with the appealhaving to be settled in Colombo and to my absence from Badulla onan urgent private matter on November 24, 1907, and succeedingdays, that the petition of appeal could not be filed in time.”
Sainpayo, K.C., for the applicant (defendant).
Bawa, Acting S.-G. (with him F. J. de Saram), for the respondent,plaintiff.
January 29, 1908. Hnanssox C.J.—
This is an application by the defendant for leave to appeal not-withstanding lapse of time. Judgment was given by the DistrictCourt of Badulla on November 13, 1907; the last day for filingappeal would be. under section 754 of the Civil Procedure Code,November 26. On November 17 the appellant's proctor iu Badulla
sent a copy of the decree to the prootors in Colombo) and on the 18th IMS*he sent a copy of the judgment. On the 19th the Colombo proctors Januorv 2®‘wrote to the defendant asking him whether he wished ttf appeal; on Hutchinsonthe 21st he wired to them to appeal; on the 23rd they sent petition C J-of appeal to the proctor at Badulla, and it reached Badulla on the24th. The proctor was absent at Hatton, and in consequence oihis absence the appeal was not filed by the 26th.
By section 765 of the Code an appeal may be admitted if we aresatisfied that the appellant was prevented by causes “ not withinhis control ” from complying with the requirements of section 754.
Under that section I think that the practice is not to give leave coappeal where the only ground relied on is that the appellant or hi3proctor made some miscalculation of time or some other mistake,or that the failure was due to the proctor’s neglect.
The appellant’s counsel in this case urges that the failure was dueto accident. No explanation is given why the proctor, when heleft Badulla, did not leave some one in charge of his office whocould have attended to a matter of this kind.
In my opinion the failure in this case to file petition of appealin time was due to the default of the proctor at Badulla, and theappellant must suffer for it.
The application is refused with costs. For future reference Iquote the case to which we have been referred, viz., D. C., Kalutara,
28, and D. G., Galle, 8,398, both decided on August 23, 1907, andD. C., Galle, 8,286, decided February 20, 1907.
I agree, and have nothing to add.
JULIUS v. HODGSON