K. RAMALINGAM ,Petitioner ,and V. KUMARASWAMY, Respondent

121-NLR-NLR-V-54-K.-RAMALINGAM-Petitioner-and-V.-KUMARASWAMY-Respondent.pdf

494
Ramalingam v. JCumaraswamy
1953
Present: H. A. de Silva J.
TC RAMALINGAM, Petitioner, and V. KUMAR AS WAMY,RespondentElection Petition No. 16 (Chavakachcheri)—Inquiry into objectionraised by the Respondent.''
Election Petition—*Presentation of petition—Gazette notification as mode of giving-notice to respondent—Conditions precedent—Appointment of agent—Signi-ficance of Registrar’s register—Ceylon (Parliamentary Elections') Order inCouncil, 1946, Schedule 3, Rules 9, 10, 11, 15, 17, 34, 35.
(1950) 51 N. L. R. 360.2 (1936) 25 C. A. R. 167.
(1932) 23 C. A. R. 173.
TT. A. DB SILVA J.—Ramolingam v. Rtmiaraswamy
495
* Under Rule 15 of Schedule 3 of the Parliamentary Elections Order in Councilof 1946, a notice published in the Government Gazette can be availed of by thepetitioner as notice of the presentation of his election petition only if beforethe publication no appointment of an agent or address had been given to theRegistrar of the Supreme Court by the respondent in terms of Rule 10.
A person who has been returned as a Member may nominate an agent underRule 10 even after an election petition has been filed against him. The words“ at any time in Rule 10 cannot be limited to a period before the filing of thepetition.
The register which is required to be kept by the Registrar under Rule 11 isnot the only source of information regarding the appointment of agents. Thequestion whether or not an agent .has been appointed by a party to an electionpetition does not depend on the Registrar’s observance or non-observanceof the duties cast upon him by Rule 11.
Failure to give due notice of the presentation of an election petition is afatal irregularity.
LECTION petition No. 16(Chavakachcheri).Inquiry into
preliminary objection raised by the respondent.
S. Barr Kumarakulasinghe, with G. T. Samaraioickreme, A. Vythi-lingam, and Izzadeen Moha/med, for the petitioner.
H. V. Perera, Q.C., with E. B. W ikramanayake, Q.C., H. Waniga-tunga, J. A. P. Cherubim, and T. B. Dissanayake. for the respondent.
Cur. adv. wilt.
May 13, 1953. H. A. de Silva J.—
The petitioner on the 21st day of June, 1952, filed his petition andprayed that it might be determined that the respondent was not dulyelected or returned as a Member of Parliament for the Chavakachcherielectorate and that his election was void.
The said election was held on the 26th of May, 1952, and its resultwas published in the Government Gazette Extraordinary No. 10,404dated 31st May, 1952. The petition was filed on the last day on which apetition in law could have been filed for this purpose. The Registrar,Supreme Court, upon whom certain duties are imposed by the Ceylon(Parliamentary Elections) Order in Council of 1946, has received thepetition on the 21st June, 1952, and has opened a Journal to facilitatereference to the various documents filed in the case and also to thevarious steps taken although the Order in Council does not specifically-impose that task on him.-
The Registrar, Supreme Court, Mr. Clarence de Silva, who gave evidencein this case stated the procedure adopted by him in the matter of election,petitions. On the 24th July, 1952, the petitioner filed an applicationto amend his petition under article 83 (2) of the Order in Council.On the 2nd of August, 1952, the Agent for the Respondent filed a petitionand affidavit and statement of objections of the respondent and movedthat no further proceedings be had on the petition dated 21st June,1952, and that it be rejected or dismissed.
496H. A. DE SILVA J.—RamaZingam v. Ktimara-swcwny
These two matters came up before me on the 9th of March, 1^53,•when I made order that the application of the respondent should bedisposed of before the application of the petitioner to amend his petitionwas considered for the reasons given in my order. Accordingly thematter of the respondent’s application was considered. Some evidencewas led both by the respondent and by the petitioner as it was foundnecessary by the respective parties to place some facts for theadjudication of matters that were in issue at this preliminary inquiry.
The respondent placed before Court the evidence of Messrs. Clarencede Silva, Registrar, Supreme Court, N. Navaratnam, Deputy Registrar,Supreme Court, Xi. A. M. Weerasinghe, a clerk of the Supreme CourtRegistry. The petitioner’s counsel called the following witnesses :—Messrs.V. Navaratnam, Proctor, C. B. Wijesoma, a peon in the General PostOffice, A. E. Gunadasa, postman of the General Post Office, Mr. K.Ariyaratnam, Postmaster, Chavakachcheri, Victor Perera of the Depart-ment of the Superintendent of Telecommunications (Traffic), Colombo,and D. E. Jayasuriya.
The point that comes up for consideration is whether or not the noticeof the presentation of the petition has been given by the petitioner tothe respondent as required by law. It was conceded at this inquiry thatthe last day on which the notice of the presentation of the petition shouldhave been given was on the 1st July, 1952. Mr. V. Navaratnam, Proctor,has been appointed by the petitioner as his Agent in terms of Rule 9 inthe third schedule to the Order. The address of the petitioner’s Agent,Mr. V. Navaratnam, has been given, vide' P2. Mr. V. Navaratnam interms of rule 35 in the third schedule to the Order has informed theRegistrar of his appointment as Agent. It is common ground that thenotice of the presentation of this petition has not been personally servedon the respondent. The contention of the respondent is that the noticeof the presentation has not been given either to the respondent or to hisAgent as required by law. On the other hand the petitioner contendedthat the notice of the presentation of the petition has been duly servedas required by law.
I may, at the very outset, state that the evidence led through thepostal peons and the postmaster of Chavakachcheri is irrelevant for thedetermination of the issue that arises in this case. All that that evidenceshows is that an attempt has been made to serve the notice of presentationon the respondent through the post within time, that is within the 1st ofJuly, 1952. Long after the 1st of July, attempts have been made to servethe notice of presentation of the petition through the post on the respon-dent’s Agent, Mr. Amirthalingam, Proctor. The publications in dailypapers have been referred to in the evidence. I think all those attempts^ whichhave proved abortive do not help the petitioner in any manner. A similarattempt was considered by my brother Swan in Election Petition No. 6 of1952, Kalutara 1. There this Court held that the respondent was under noobligation, legal or moral, to stay at home to receive those notices. Sotherefore, I do not propose hereafter to refer to that aspect of the evidencethat has been led in this case by the petitioner.
1 (1953) 54 2ST. L. JR. 400.
TT. A. DE SILVA J.—Ramalingam v. K.umaraswamy
497
—,5:'
The simple question that calls for decision is, has the petitioner givennotice of the presentation of the petition according to law ? X think thevarious rules in schedule three of the Order in Council are clear enough,and leaves no room for ambiguity to justify a voyage of exploration to-ascertain what the meaning of the relevant rules are.
I shall at this stage refer to the relevant rules which I propose toreproduce here. Rule 9 makes provision for the petitioner to leave at theoffice of the Registrar a writing signed by him giving the name of someperson entitled to practise as a Proctor of the Supreme Court whom heauthorizes to act as his Agent or stating that he acts for himself as thecase may be, and in either case giving an address 'Within the city ofColombo at which notices may be left; and if no such writing be left oraddress given then all notices may be given by leaving the same at theoffice of the Registrar.
The petitioner has done his part of the duty imposed upon him byrule 9 when he presented the petition. Rule 9 reads thus : “ With thepetition the petitioner or petitioners shall leave at the office of theRegistrar a writing …. &c.”. The wording of Rule 9 shows thatit is obligatory on the petitioner either to name an agent with his addressor name himself as acting for himself with an address. If he fails to do soany party to the suit would only be liable to leave any notices at theoffice of the Registrar, and to do nothing else if any notices were requiredto be served on the petitioner. The rules that need consideration in thiscase are 10 and 15. Rule 10 runs thus : “ Any person returned as aMember may at any time, after he is returned, send or leave at the officeof the Registrar a writing, signed by him on his behalf, appointing aperson entitled to practise as a proctor of the Supreme Court to act ashis agent in case there should be a petition against him, or stating thathe intends to act for himself, and in either case giving an address withinthe city of Colombo at which notices addressed to him may be left, andif no such writing be left or address given, all notices and proceedingsmay be given or served by leaving the same at the office of the Registrar.Every such writing shall be stamped with the duty payable thereon underthe law for the time being in force ”.
Rule 15 runs thus :
“ Notice of the presentation of a petition, accompanied by a copythereof, shall within ten days of the presentation of the petition, beserved by the petitioner on the respondent. Such service may beeffected either by delivering the notice and copy aforesaid to theagent, appointed by the respondent under rule 10 or by posting thesame in a registered letter to the address given under rule 10 at suchtime that, in the ordinary course of post, the letter would be delivered■within the time above mentioned, or if no agent has been appointed,nor such address given, by a notice published in the Government Gazettestating that such petition has been presented, and that a copy of thesame may be obtained by the respondent on application at the officeof the Registrar ”.
498
H. A. DE SILVA J.—2%am.alingcvm v. Knm araswcvnvy
It is abundantly dear from the wording of Rule 15 that Rule 10and Rule 9 should he read together in order that the requirements ofRule 15 may be complied with. Rule 15 sets out the manner in whichnotice of the presentation of a petition should be effected. Now let meanalyse Rule 15.
The petitioner has to serve notice of the presentation of his petitionaccompanied by a copy thereof "within 10 days of the presentation of thepetition. Now that can be done in any manner provided that the petitionwas served within 10 days on the respondent.
Such service may be effected either by delivering the notice and■copy aforesaid to the Agent appointed by the respondent "under Rule 10or by posting the same in a Registered letter to the address given underRule 10 at such time that in the ordinary course of post, the letter wouldbe delivered within the time above mentioned.
Now this is a mode of service contemplated where under Rule 10 therespondent has appointed an Agent and given bis address or given bis(respondent’s) own address. Thus it is clear that where the respondenthas made an appointment under Rule 10, the petitioner would have theoption of serving the notice by posting the same in a registered letterto the address given under Rule 10, and it is immaterial, if that procedureis followed, whether or not the person to whose address the petitionerwas authorized to send the letter by post received it or not. The respondentor his Agent in that event cannot be heard to say that he did not receive"the notice so sent by registered post. Another form of notice is con-templated in Rule 15 under certain contingencies, that is, where therespondent has not appointed an Agent or given an address as providedin Rule 10. That mode of service is by publication of a notice in theGovernment Gazette giving the necessary information as contemplatedin Rule 15. The giving of notice by publication in the Government Gazetteis not an alternative method to the two earlier methods referred to byme of giving notice of the presentation of the petition. In this case anotice of the presentation of the notice was published in the Gazettewhich appeared on the 27th June, 1952. It is the sufficiency of this noticethat is in issue in this matter.
The facts placed before me by the respondent with regard to hiscompliance with Rule 10 are these. On the 25th June, 1952, two documentswere lodged at the Registry by the respondent and his AgentMr. Amirthalingam, Proctor, vide R2 and R3. R3 is the appointment by"the respondent of Mr. A. Amirthalingam, Proctor, Supreme Court, of 21,Upatissa Road, Bambalapitiya, under Rule 10. This is dated 25th June,1952. Under the same date, namely 25th June, 1952, Mr. AmirtKalingamlodged "with the Registrar a notice in terms of Rule 35 of the third schedulegiving notice that he had been appointed by the respondent as his Agentin terms of Rule 10.
The evidence led in this case by the petitioner, namely that of theDeputy Registrar Mr. N. Navaratnam, and of the clerk of the RegistryMir. Weerasinghe, clearly establishes the fact that R2 and R3 were
H. A. DE SILVA J.—Ramalingam v. Kumaraswamy499
— ,:lodged at the Supreme Court Registry on -the 25th June, 1952.Mr. Weerasinghe who has been assigned the duties of attending toElection Petitions, and who has done this type of work for the lasttwenty-two years at the Registry, has said in no uncertain terms thatR2 and R3 were received by him at the office between 9 and 9.30 a.m. onthe 25th of June, 1952. The Deputy Registrar, Supreme Court, in hisevidence has stated that he initialled R2 and put the date 25th June,1952, in the afternoon of that day. According to the routine of work in theoffice it may not be possible for the Deputy Registrar Mr. 1ST. Navaratnamto have handled R2 and R3 immediately they were tendered. It is theclerk who is in charge of this work who attends forthwith to paperslodged at the office. Mr. Weerasinghe has also in his evidence statedthat as soon as R2 and R3 were handed over to him he journalized thereceipt of these documents. But the evidence of Mr. Deputy RegistrarNavaratnam shows that he signed this entry in the Journal only on the1st of July, 1952. That is a matter which does not alter the position as re-gards the respondent in any manner. That is an administrative act doneby an officer of the Registry. The fact of the signing of the minute in theJournal by the Deputy Registrar on the 1st of July is utilised to provethat as a matter of fact this appointment by the respondent was notmade on the 25th June, 1952. MI. V. Navaratnam, Proctor, has givenevidence himself. He stated that he paid a visit to the Registry amonghis other visits on the 25th June, 1952, at about 10.30 a.m. and that heinspected the Register maintained by the Registrar under Rule 11, andthat he found no entry in the said Register to show that an appointmentunder Rule 10 had been made. So that the question of fact that I havegot to decide is whether the appointment by the respondent of bis Agentwith the address was lodged at the Registry on the 25th June, 1952.
Mr. Proctor Navaratnam says in his evidence that on the day thepetition was filed, that is, 21st June, 1952, there was no appointment-made by the respondent. I may mention that the 21st June was aSaturday. He again went to the Registry on the 23rd June and he foundno appointment entered in the Register. The 24th June was a publicholiday. So that his visits to the Registry before the 25th June, 1952,would not have availed him to find out if an appointment had beenmade because the respondent’s case is that the appointment was madeonly on the 25th June, 1952. The crucial visit, if I may say so, wasthe one made on the 25th June to the Registry. He says that he wentto the Registry at 10.30 a.m. and not finding on an examination of theRegister an appointment by the respondent noted in it, he went to theGovernment Printing Press at about 11 a.m. and handed over two notices,one injrespect of the Jaffna Election and one in respect of the Chava-kachcheri Election for publication in the Government Gazette. Thisnotice could have appeared only on the 27th June, 1952. The times atwhich he went to the Registry and to- the Government Printing Press asdeposed to by Mr. Proctor Navaratnam are obviously wrong. It may bethat he is making a mistake or his recollection of the times is at fault.Mr. D. E. Jayasooriya was called by the petitioner’s counsel. He is aclerk in the Government Printing Press. He was the person who
500
M. A. DE SILVA J.—Ramal ingam v. Kumaraswamy
received these two notices handed in by Proctor Navaratnam for publica-tion. His evidence shows that Proctor Navaratnam was very keen oninserting the time at which he handed the notices to him at the Govern-ment Printing Press. Mr. Proctor Navaratnam himself put down thetime as 10.05 a.m. Mr. Jayasooriya says that it took him from theGovernment Printing Press to come to the Court twenty minutes ridingon a bicycle. He also said that it would take one about seven minutesto come from the Court to the Government Printing Pres3 by car. Whatwas Mr. Proctor Navaratnam’s object in noting the time at which thenotice was handed in at the Government Press ? Was it to protecthimself against a possible appointment being filed by the respondent at arelevant time or was it to protect himself against a possible failure onthe part of the Government Printer to publish this notice in the nextissue of the Government Gazette, the next issue being on the 27th ofJune ? The Financial Regulations provide that if a notice was to appearin the Government Gazette published on a Friday that notice had to behanded in by 12 noon on the previous Wednesday. Proctor Navaratnamwas undoubtedly very keen on getting this notice published in theGovernment Gazette that appeared on the 27th June, 1952. Friday wasthe normal day on which the ordinary Gazette is published. We are notconcerned with the practice followed with regard to a publication in a.Gazette Extraordinary. As I said before, the 21st June was a Saturday.The notice of the presentation of the petition had to be given in thevarious methods enumerated in Rule 15 within ten days of the date ofthe presentation of the petition. Thus the 1st of July was the last day.Between the 21st of June and the 1st of July, there was only one Friday,and if one had to avail oneself of the publication of notice in theGovernment Gazette, that had to be done in the Publication on Friday the27th of June, unless, of course, one took steps to have the notice publishedin a Gazette Extraordinary. Proctor Navaratnam in his evidence hasstated that on any of his visits to the Registry after the 21st June, 1952,and before the 2nd of July, he did not inquire either from the Registrar orthe Deputy-Registrar, or the subject clerk whether an appointment hadbeen made. He further says that he did not go to the Registry on the1st July. The dates on which he went to the Registry after the 21st ofJune, were, 23rd, 25th, 28th June. He said that on these occasions hedid not speak to Mr. Weerasinghe. On one or two occasions he remembersto have seen Mr. Weerasinghe at the typewriter or at his table but didnot speak to him. On the 23rd Mr. Weerasinghe was there. On the28th of June, Mr. Weerasinghe may have been there. Proctor Navarat-nam does not remember to have seen Mr. Weerasinghe on the 25th June,1952. He does not seem to have spoken to Mr. Weerasinghe on thisoccasion although he had seen him there sometimes. Proctor Ng-varat-nam does not appear to have referred to the Journal of the record either.He has contented himself by inspecting the Register maintained underrule 11 by the Registrar, Supreme Court. He appears to have found theentry in the Register R5 for the first time only on the 2nd of July. TheRegister R5 only contains the name of the petitioner’s Agent and address,the respondent’s name and address and the respondent’s Agent’sname and address. There are no other particulars such as either the
H. A. t»E StLVA J.—-Ramalingam v. Rumataswamy
501
cL>te on which the appointment was made or on which date the appoint-ment was lodged at the Registry. Mr. Weerasinghe has stated on oaththat he made the Journal entry and entry in the Register of Agents assoon as the appointment was filed on the 25th June, between 9 and9.30 a.m.
There is variance about the date of one of Proctor Navaratnam’svisits in his evidence and that of the Deputy Registrar, Navaratnam.Whereas Proctor Navaratnam says he went on the 2nd July, 1952,to the Registry after the 28th June, and spoke to Mr. Navaratnam,Deputy Registrar, the latter says that it was on the 1st July that ProctorNavaratnam came and spoke to him and not on the 2nd July. TheDeputy Registrar remembers this occasion on account of a certainconversation that he had with Proctor Navaratnam. It would appearthat this minute in the Journal under date 25th June, 1952, was actuallysigned by the Deputy Registrar only on the 1st July, 1952, about tenminutes before Proctor Navaratnam came and saw him on the 1st July.Mr. Deputy Registrar Navaratnam had signed the Journal entry underdate 25th June, 1952, but had not put down the date on which he signed.Mr. Proctor Navaratnam when he came ten minutes later drew the DeputyRegistrar’s attention to this minute and at the former ’s request thelatter put down 1st July, 1952, as the date on which he had signed thatminute. That was the reason why the Deputy Registrar says he remem-bers Proctor Navaratnam 5s visit as being on the 1st July and not onthe 2nd July, 1952. Whatever that may be, Mr. Proctor Navaratnamappears to have had a conversation with the Deputy Registrar either onthe 1st or 2nd of July. If it was the 2nd July, then Proctor Navaratnamcould have done nothing because the final date for the giving of noticeof the presentation of the petition was 1st July. It was a moot pointif Mr. Proctor Navaratnam went to the Registry on the 1st of July,and finding the appointment of an Agent by the respondent had beenmade, and if a letter had been sent by registered cover addressed to theAgent of the respondent, whether that letter was posted in time withinthe meaning of Rule 15. Mr. Proctor Navaratnam has been a Proctor for17 years. He himself had contested a seat at the last General Electionand he was defeated and he lost the deposit. Having been quiteaccustomed to the practice and procedure in Courts of Law, it seemsrather strange why Mr. Proctor Navaratnam refrained from speakingto the Registrar or one of his Deputies or the subject clerk in charge ofelection matters, or any other clerk in the office in order to obtain informa-tion on a matter of such grave importance. He knew that the noticeof the presentation of a petition had to be done within a certain limitedtime. The petitioner’s Counsel seems to lay great store upon Rule 11in the third schedule to the Order. Now Rule 11 runs thus,
* „
“ The Registrar shall cause to be kept a book at this office in whichshall be entered all addresses and the names of agents given undereither of the two last preceding rules, which book shall be open toinspection by any person during his office hours. ”
This is an imperative provision which the Registrar has to obey.. Itis argued by learned counsel for the petitioner that in order to ascertain
562
H. A. DE StLVA J.—Ramalingam v. Itumaraswanty
whether or not an agent had been appointed by a party one is under r-.oobligation to go to sources other than this Register of Agents. It isargued by learned Counsel for the respondent that the respondent isnot concerned with the observance or non-observance of any rule orrules by the Registrar. Rule 11 is merely an administrative provision.What a party to an election petition does or does not do is in no waydependent on the Registrar’s observance or not of the duties cast uponhim by’this order. He contends that if the Registrar under Rule 17fails to make out the Election Petition list and carry out the otherrequirements of that rule, does it necessarily follow that the petitionershould in any manner be penalised, such as having his petition dismissed ?Rule 17 runs thus,
“ The Registrar shall make out the election petition list. In ithe shall insert the names of the agents of the petitioners and respondentsappointed undeT rule 9 and rule 10 respectively, and the addressesto which notices may be sent, if any. The list may be inspected at theoffice of the Registrar at any time during office hours, and shall beaffixed for that purpose upon a notice board appropriated to proceedingsunder the Order, and headed ‘ The Ceylon (Parliamentary Elections)Order in Council 1946 V’
He further submits that the respondent has discharged his dutyimposed upon him under rule 10 the moment he lodged in the Registrythe appointment under rule 10 together with the agent’s notice underrule 35.
On the 25th June, 1952, the respondent and his agent have compliedwith both rules 10 and 35 in the third schedule to the Order when theyfiled the appointment and the notice. Mr. Weerasinghe is definite andunequivocal as to the date and the time on which the appointment waslodged at the Registry. Deputy Registrar Navaratnam has supportedhim at least to the extent that he saw this appointment and .initialled iton the 25th June, 1952, in the afternoon.
Upon the evidence placed before me I hold the following fact to beproved.
The appointment of the Agent by respondent R2 together jwiththe notice by his Agent R3 was lodged at the Registry between 9 and9.30 a.m. on the 25th June, 1952, and that Mr. Weerasinghe the subjectclerk received same on behalf of the Registrar on that date at that time.
I wish to make a few further observations on what the evidence ledin the case has revealed. The evidence shows that the Deputy Registrar,Mr. Navaratnam, signed the Journal under date 25th June, i952, onthe 1st July, 1952. There is no procedure in this Order in Councilfor the maintance of a Journal, but it appears to have been done as amatter of practice and for facilitating references. So that on whichdate the Deputy Registrar signed this particular Journal is immaterialexcept perhaps for the purpose of determining the credence that can beattached to the evidence of Mr. Weerasinghe. This too does not arise
FT. A. DE SILVA J.—JlajnaUngam. v. Kumaraswamy503
1——
in. view of the admission made by the Deputy Registrar that he put hisinitials on to R2 and dated it 25th June, 1952, on the same day. Mr.Proctor Navaratnam states that on the 28th June he again referred upthe register of Agents and found no appointment had been made and onthe advice of counsel he sent three registered letters, P5, P6, and P7 to therespondent personally to the various addresses, which letters have notbeen delivered to him. If on the 27th of June the Government Gazettepublication appeared at a time when according to Proctor Navaratnamhe was not able to find in the register the name and address of an Agent,what was the necessity for sending registered letters to the respond-ent on the 28th of June ? All that was needed on the part of the peti-tioner or bis Agent was vigilance, especially when one realises the seriousconsequences that follow a non-compliance with the requirements of theElection Law. A circumspect lawyer who goes to the Registry wouldtake all measures necessary to obtain the information needed for whateversteps he may have to take according to law. It is hardly necessary forme to discuss the question of law in the abstract as to the effect of thegiving of the notice of appointment and address of the respondent’sAgent on a date subsequent to the publication of the notice of thepresentation of the petition in the Gazette as the facts in this case asfound by me show that the appointment by the respondent of his agentwas made and lodged at the Registry two days before the notice appearedin the Gazette.
The learned Counsel for the petitioner has sought to put the followingconstruction to the words in Rule 10. He argues that the words “ anyperson returned as a Member may at any time, after he is returned,-…,. ” must be deemed to be limited to a period before the
filing of the petition, and that the appointment under Rule 10 by aMember made after a petition is filed does not entitle the respondent toclaim that notice of the presentation of the petition should be given asprescribed in Rule 15. He sought to place a limitation to the words “ atany time ” which would have the effect of saying that a Member maynominate an Agent under rule 10 only up to the date immediately beforethe presentation of a petition. He thus argues that the words “ at anytime ” in the context of Rule 10 means and must be construed to meanonly up to 20th June, 1952. In this case the petition was filed on 21st June,1952. He sought assistance for this argument in the following wordscontained in Rule 10, “ to act as his Agent in case there should be apetition against him ”. His contention is that words “in case there shouldbe a petition against him ” mean up to the point of time when a petitionis filed against him. The words “ in case ” in Rule 10 mean, as waspointed out by learned counsel for the respondent, “if, in the event thator les*b”. If the words “in case” were omitted and the other words thatcan be used are inserted in their place the sentence would run thus : “toact as his Agent in the event that there should be a petition againsthim ”. If the words “ at any time ” in Rule 10 must be limited to a periodbefore the filing of the petition, the question that would naturally ariseis, if the respondent wanted to file an appointment of an Agentafter the petition is filed against him!, under what section can he do so ?Mr. Kumarakulasinghe argued that the only section under which an
604
H. A. DE SUVA J.—Ramalingam v. Kumaraswamy
—(■}
Agent can be appointed by; the respondent in that eventuality would berule 34, which reads thus,
“ Any person who is on the roll of proctors of the Supreme Courtmay act as agent for any party to an election petition In themargin of that page against Rule 34 the following words appear“ Proctor may act as Agent under these rules. ”
In my opinion Rule 34 is a general provision which lays down whomay act as agent. Rule 35 lays down the duties of an agent immediatelyupon his appointment as such, that is, to leave written notice of hisappointment at the office of the Registrar. It is a well known rule ofconstruction that a general provision in a statute does not control orlimit a specific provision contained in the same statute. It must beremembered that the placing of a notice with the Government Printeron a particular day for publication in the Gazette is not a material date.What is material is the date on which the notice of the presentationappears in the Government Gazette.
In this case, as I have already observed, the notice of the presentationappeared in the Gazette only on 27th June, 1952. The evidence is that theGazette was out only by 4.30 p.m. on Priday, 27th June, 1952, so that thequestion of the exact time at which the appointment was lodged at theRegistry is immaterial. But I have already held that this appointmentwas lodged between 9 and 9.30 a.m. on 25th June, 1952.
An analysis of Rule 15 shows clearly and unequivocally that the noticegiven in the Government Gazette publication can be availed of by thepetitioner as notice of the presentation of the petition only if before thepublication no appointment of an Agent or address had been given to theRegistry by the respondent. In this case that contingency has not arisenbecause on 25th June, 1952, the appointment had been lodged at theRegistry by the respondent. There was always the method .of postinga letter by registered post to the address given under rule 10.
Various English authorities have been submitted to me by Counselat the argument, but I find that those authorities do not help me indetermining this matter. I was referred to Aron v. Senanayake 1 whereAkbar, S.P.J., held that failure to give notice of the presentationof an election petition and of the nature of the proposed security in themanner required by rule 18 of the Election Petition Rules of the Ceylon(State Council Elections) Order in Council, 1931, is a fatal irregularity.The rule 18 therein referred to is more or less identical with Rule 15in schedule three of the Order in Council of 1946, with the relevantmodifications.
I therefore hold that the notice of the presentati6n of the petition wasnot served on the respondent as required by Rule 15, and that thenotice published in the Government Gazette on. 27th June, 1952, wasnot sufficient notice of the presentation of the petition to the respondent.
The petition of the petitioner is therefore dismissed with costs to therespondent.
Petition dismissed.
i (1936) 3S N. L. R. 133.