041-NLR-NLR-V-54-KASIPILLAI-et-al-Petitionersand-NAGALINGA-KURUKKAL-Respondent.pdf
GTTNASEKABA J.—•Kasipillai v. NagaZinga Kwruklcal
183
1952Present : Gunasekara J. and Swan J.KASIPILLAI et al., Petitioners, and NAGALINGAKURTJKKAL, Respondent
S. C. 349—Application for cxmdiUonal leave to appeal to the PrivyCouncil in S.C. 51/D.C. Jaffna, 5,694
Privy Council—Application for leave to appeal—Notice to opposite party—Requirementof information as to ground of appeal—Appeals (Privy Council) Ordinance{Cap. 85), Schedule, Rules 1 and Z.
When, in an application for leave to appeal to the Privy Council, the appellantgives the opposite party notice of his intended application, he must informwhich of the grounds specified in Pule 1 of the Schedule to the Appeals (PrivyCouncil) Ordinance is the ground upon which the application would be made.
A'
^APPLICATION for conditional leave to appeal to the Privy Council.E. B. Wihramanayake, Q.C., with P. Navarainarajah, for the petitioners.H. W. Tambiah, with S. Sharvananda, for the respondent.
September 26, 1952. Gutstasekara J.—
This is an application by the defendants for leave to appeal to thePrivy Council from a judgment of this Court delivered on the 30thJune. The plaintiff objects on the ground that they failed to give him“ due and sufficient ” notice of tbeir intended application.'
Rule 2 of the Rules in the Schedule to the Appeals (Privy Council;Ordinance (Cap. 85) provides that—'
“ Application to the court for Leave to appeal shall be made bypetition within thirty days from the date of the judgment to beappealed from, and the applicant shall, within fourteen days from thedate of such judgment, give the opposite party notice of such intendedapplication.”
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GXJ3STASEKARA J.—Kaaipillai v. Nagalinga Kurukkal
The evidence relied on by the defendants to prove that the plaintiffwas given the notice required by this rule consists of the followingparagraphs of an affidavit by a clerk in the employ of their Proctor :"J
“ (2) I did on 11th day of July, 1952, send to V. Nadarajah, Proctor forthe Plaintiff-Respondent Notice of the intention of the Appellants toappeal against the Judgment and Decree of the Honourable TheSupreme Court dated 30th June, 1952, for conditional leave to appealto Her Majesty the Queen in Council by Registered Post, ExpressPost and Ordinary Post at the Colombo Courts Post Office. Thereceipts for same are herewith annexed.
“ (3) I did on the 11th day of July, 1952, send to the Plaintiff-Res-pondent to the like effect as in Paragraph 2 hereof by Registered Po3t,Express Post and Ordinary Post at the Colombo Courts Post Office.The receipts for same are herewith annexed.
,“ (4) I did on the 12th day of July, 1952, send to the Plaintiff-
Respondent a Telegram from the Colombo Courts Post Office to the likeeffect as in Paragraph 2 hereof. The receipts for same are herewithannexed.”
There is no evidence of the actual terms of the notice and the telegramthat are referred to in this affidavit, but the defendants have filed whataccording to an unsworn statement in the petition is a copy of the noticethat was sent by post to the plaintiff and to Mr. Nadarajah. It setsout the number of the case and the caption and says ;—
Take Notice that the Appellants abovenamed will in accordancewith the Appeal (Privy Council) Ordinance apply to the HonourableThe Supreme Court of the Island of Ceylon for leave to appeal to HerMajesty the Queen in Council against the Judgment and Decree of theSupreme Court dated 30th June, 1952.
It purports to be signed by the proctor for the defendants and is dated10th July.
The notice that the defendants claim to have given the plaintiff is abare notice of an intention to apply for leave to appeal, without anyinformation as to which of the grounds specified in rule 1 is the groundupon which the application would be made. I do not think that thegiving of such a notice would be a sufficient compliance with the require-ment that a party intending to make an application for leave to appealshall give the opposite party notice “ of such intended applicationDealing with a related question, as to whether an applicant for leavecould be permitted at the hearing of his application to base it on a groundnot set out in his petition, Wijeyewardene C.J. said, in Vander Poortenv. Vand&rPoorten 1 :
“ Now Scheduled Rule 2 requires an application for conditionalleave to appeal to be made within thirty days of the judgment of thisCourt and notice of the intended application to be given to the oppositeparty within fourteen days of that jtidgment. The main, if not sole,1 (1949) SI N. L. B. 145, at 148.
Waduganathan Ohettiar v. Sena Abdul Gassim
185
object of giving notice is to enable the opposite party to be preparedto show, if possible, that the plaintiff is not entitled to appeal. Theopposite party should, therefore, know in time whether the applicantclaims a right to appeal and, in that case, on what grounds, or whetherhe pleads that the Court should exercise its discretion in his favourand permit him to appeal. It appears to me that the very object ofrequiring a party to give notice within a specified time will be defeatedif the applicant is allowed to alter the ground on which he asks for leaveto appeal after the lapse of fourteen days from the date of judgment.”
It is implied in the view taken by the learned Chief Justice that the noticegiven by the applicant to the opposite party must set out the groundon which the application will be made. I respectfully concur in thisview and I hold that the notice that is alleged to have been given to theplaintiff is insufficient.
In this view of the matter it is not necessary to consider the affidavitsand other documents that have been submitted by the plaintiff to provethat the notice in question was not received by him, or his denial thatMr. V. Nadarajah was his Proctor at any time. The application mustbe refused with costs.
Swan J.—I agree.
Application refused.