011-SLLR-SLLR-1997-V-1-KITHSIRI-v.-WEERASENA.pdf
KITHSIRI
v.
WEERASENA
SUPREME COURT.
G. P. S. DE SILVA, C.J..
KULATUNGA. J. ANDRAMANATHAN, J.
S.C. APPEAL NO. 56/94
A. 286/87(F)
C. MATUGAMA NO. 11Q/REJUNE 21 .AND JULY 5,1995.
Civil Procedure Code – Failure to duly stamp the Notice of Appeal – Section755(1) of the Code and Section 33 of the Stamp Duty Act – Power of the Court ofAppeal to grant relief – Section 759(2) of the code.
The plaintiff presented the Notice of Appeal to the District Court within the periodof 14 days set out in Section 754(4) of the Civil Procedure Code, but failed to dulystamp the Notice of Appeal as required by Section 755(1) of the Code. Therequired stamp fee was rupees ten. The deficiency in stamp was supplied by theplaintiff shortly after the expiry of the 14 days contemplated by Section 754(4) ofthe Code.
Held:
The provisions in section 755(1) of the Civil Procedure Code which requiresthe Notice of Appeal to be 'duly stamped ' is imperative. However, the Courtof Appeal has jurisdiction to grant relief to the appellant in terms of Section759(2) of the Code in respect of the “mistake" or 'omission' in supplying therequired stamp fee.
Section 759(2) of the Civil Procedure Code is much wider in its applicationthan the corresponding Section 756(3) in the earlier Code. The specialprovisions of Section 759(2) which empowers the Court to grant relief mustprevail over section 33 of the Stamp Duty Act.
Cases referred to:
Salgado v. Peiris -12 NLR 379.
British Ceylon Corporation Ltd., v. The United Shipping Board – 36 NLR 225, 257
Sameen v. Abeywickrema – 64 NLR 560, 561,562, 563 (PC)
Martin v. Suduhamy {1991) 2 Sri L.R. 279,306.
Sandanan v. Jamaldeen -71 NLR 145,150.
Karunapejjalage Bilindi v. Wellawa Attadassi Them – 47 NLR 7,9
APPEAL from the judgment of the Court of Appeal
A. K. Premadasa, P.C., with T. B. Dillimunifor plaintiff-appellant.
N. R. M. Daluwatta, P.C. with D. P. Mendis for defendent-respondents.
Cur. adv. vult.
July 21.1995.
0. P. S. DE SILVA, C.J.
The plaintiff instituted these proceedings on or about 16.6.82 forthe ejectment of the defendant from the premises in suit. After trial,the District Court delivered judgment on 2nd June 1987 dismissingthe plaintiff’s action. The plaintiff presented the notice of appeal to theDistrict Court admittedly within the period of 14 days set out insection 754(4) of the Civil Procedure Code. However, the plaintifffailed to duly stamp the notice of appeal as required by section755(1) of the Civil Procedure Code. This fact is not in dispute. Therequired stamp fee was rupees ten. The deficiency in stamps wassupplied by the plaintiff shortly after the expiry of the period of 14days contemplated by section 754(4) of the Civil Procedure Code.
At the hearing before the Court of Appeal, Counsel for thedefendant-respondent took the preliminary objection that the appealhas to be rejected inasmuch as there is no valid notice of appeal. TheCourt of Appeal upheld the preliminary objection and rejected theappeal with costs. Against the judgment of the Court of Appeal theplaintiff has now preferred an appeal to this Court.
There is no doubt that the provision in section 755(1) of the Codewhich requires the notice of appeal to be “duly stamped” isimperative. Ever since the decision of the Full Bench in Salgado v.Peiris (, it was firmly established that a petition of appeal to theSupreme Court will be rejected if it is not sufficiently stamped and theCourt has no power to allow it to be stamped after the time forappealing has expired. Garvin SPJ in British Ceylon Corporation Ltd.,v. The United Shipping Board™, stated-
“It is well settled by the judgments of this Court that when it isfound that a petition of appeal was not stamped or not dulystamped at the time it was presented, the appeal is not dulypresented according to law and must be dismissed – such a
petition may not be stamped after the expiry of the appealabletime (Salgado v. Peiris)’.
I therefore entirely agree with the submission of Mr. Daluwatta forthe defendant-respondent that the provision in section 755 (t) of thepresent code which requires the notice of appeal to be ‘dulystamped* must be complied with. Mr. Daluwatta has also referred tosection 33 of the Stamp Duty Act No. 43 of 1982 in support of hissubmission.
Notwithstanding the fact that it is imperative to duly stamp thenotice of appeal, the true question that arises on this appeal iswhether the Court of Appeal could have granted relief to the plaintiff-appellant. The relevant provision is contained in section 759(2) ofpresent Civil Procedure Code. It reads thus:
“759 (2); In the case of any mistake, omission or defect on the partof any appellant in complying with the provisions of the foregoingsections, the Court of Appeal may, if it should be of opinion thatthe respondent has not been materially prejudiced, grant relief onsuch terms as it may deem just.’'
Prior to the re-enactment of the Civil Procedure Code in 1977, theearlier Code (Chapter 101 of the 1956 Revised Edition of theLegislative Enactments) contained a very similar provision to section759(2) of the present Code. That was section 756(3) which read asfollows:
*756(3); In the case of any mistake, omission or defect on the partof any appellant, in complying with the provisions of this section,the Supreme Court, if it should be of opinion that the respondenthas not been materially prejudiced, may grant relief on such termsas it may deem just.”
This section (i.e. 756(3)) arose for consideration in Sameen v.Abeywickrema which is a decision of the Privy Council. This was acase where a preliminary objection was taken on the ground that theappellant had failed to comply with section 756(1) of the earlierCode; the point taken was “that the appellant’s notice of security wasbad in that it had not been filed with the Court ’forthwith upon thepetition of appeal being received by the court’ (at page 557). PrivyCouncil held that the appellant had failed to follow the ’prescribed
procedure" and that unless the court granted relief in terms of section756(3) of the Code (as it then stood) the appeal would abate.
The approach of the Privy Council in Sameen's case {Supra) to thepower of the Court to grant relief "in the case of any mistake,omission or defect on the part of any appellant in complying with theprovisions of this section” (i.e. Section 756 only) was refreshinglyliberal and unfettered by undue technicality; it marked a significantdeparture from some of the previous decisions of the Supreme Courtwhere the power of the Court to give relief to an appellant wasconstrued narrowly and restrictively. In analysing section 756 (3) ofthe earlier Code the Privy Council emphasised the following matters:-
‘It does not attempt to distinguish between substantial ormore or less trivial mistakes, omissions, or defects, and thesub-section, in Their Lordships view, applies in relation notjust to some, but to all, the provisions of section 756” (atpage 560);
Section 756 (3) applies to “any mistake; omission or defect."(at page 562);
“In Their Lordships view the Supreme Court is given by thissub-section the power to grant relief on such terms as it maydeem just where there has been a failure to comply with anessential requirement of the section. The only limitationimposed by the sub-section is that the Court has not thepower to do so unless it is of the opinion that the respondenthas not been materially prejudiced” (at page 562);
"It does not follow that relief should be given even if therespondents have not been materially prejudiced but reliefshould not be lightly withheld, for the effect of refusing reliefmay be to deprive a litigant of access to the Supreme Courtand, if the original judgment is wrong, amount to a denial ofjustice." (at page 563);
“Whether or not there was an excuse for non-compliance withrequirement of the section is a material circumstance to betaken into account in deciding whether or not, the courtshould in the exercise of its discretion, grant relief. But thesub-section itself does not provide that the relief shall not begranted if there is no excuse for non-compliance and to
interpret it in this way is in Their Lordships opinion wrong.” (atpage 561).
It is relevant to note that the decision in Sameen's case {Supra)was fully discussed and cited with approval by my brother Kulatunga
J., in Martin v. Suduhamy w.
Turning now to the provisions of section 759(2) of the present CivilProcedure Code, it is seen at once that these provisions aresubstantially the same as section 756(3) of the earlier Code. There is,however, one significant difference which is of decisive importance inthe appeal before us. While the aforesaid section 756(3) is in termsapplicable only to the provisions of that section, namely, section 756,the corresponding section in the present Code, that is section 759(2),is much wider in its application. Section 759(2) itself expressly enactsthat it applies to the “provisions of the foregoing sections". It is thusclear that section 759(2) applies to section 755(1), which is thesection which requires a notice of appeal to be “duly stamped".
The first question that then arises is whether in the instant case theCourt of Appeal had jurisdiction to grant relief in respect of the-mistake" or “omission" in supplying the required stamp fee. Whatwas required was a stamp fee of Rs. 10/-. This clearly is a matterwhich pertains to the revenue. Could it be reasonably said that the“omission" to supply the stamp fee had “materially prejudiced" therespondent in this case? The answer, I think, is emphatically in thenegative. For, as observed by Kulatunga J., in Martin v. Suduhamy{Supra), “What is required to bar relief is not any prejudice butmaterial prejudice, i.e. detriment of the kind which the respondentcannot reasonably be called upon to suffer." In the instant case thereis nothing to suggest that the respondent has been materiallyprejudiced. I accordingly hold that the Court of Appeal had jurisdictionto grant relief in terms of section 759(2) of the present Code.
The next question is whether the Court of Appeal in the exercise ofits discretion ought to have granted relief. The non-compliancecomplained of is of a trivial nature and there is the additionalcircumstance that the deficiency in the stamp fee was supplied withreasonable promptitude. There is nothing whatever to suggest thatthe non-compliance was a deliberate act. On the contrary, the factsand circumstances suggest that it was a case of an inadvertentomission. I accordingly hold that this was a fit case for the Court ofAppeal to have exercised its discretion in favour of the appellant.
The Court of Appeal took the view that case of Martin v. Suduhamy(Supra) was not relevant on the ground that it "refers to the questionof hypothecation of the security for costs." In so doing, the Court ofAppeal was in error; it was a case in which the meaning and scope ofthe provisions of section 759(2) directly arose for consideration; thiscourt considered those provisions in the light of the analysis by thePrivy council of the analogous provisions in the earlier Code. Theprinciples considered are of relevance and assistance to the issuesarising in the appeal before us.
Mr. Daluwatta in his comprehensive written submissions placedreliance on the case of Sandanan v Jamatdeen,5). That case, wasconcerned with the question whether a deficiency in the stamping ofan application for leave to appeal to the Privy Council is curable. It istherefore of little assistance in deciding the issue that arises on thepresent appeal. However, the approach adopted by H. N. G.Fernando, C.J., to the question of deficiency in stamping is not withoutrelevance to the appeal before us. Said the learned Judge "… thesomewhat technical objection taken in this case should not stand inthe way of a conclusion which will further the ends of justice.”
Mr. Daluwatta further submits that section 759(2) which refers toany mistake, omission or defect in complying with the provisions ofthe foregoing sections is subject to section 33 of the Stamp Duty ActNo. 43 of 1982 which precludes a court from acting upon aninstrument chargeable with stamp duty unless it is duly stamped;hence section 759(2) has no application where the notice of appealis not duly stamped. It seems to me, however, that the specialprovisions of section 759(2) which empowers the court to grant reliefmust prevail over section 33 of the Stamp Duty Act, having regard tothe maxim "generaiia specialibus non derogant". This view is inaccord with the true meaning and scope of section 759(2). It wouldnot be tantamount to treating section 33 lightly, as submitted byMr. Daluwatte.
Mr. Daluwatte next contends that in any event if the “stamping” isdone after the appealable time, then the notice of appeal (soperfected) out of time; hence the appeal must be dismissed. I do notagree. The true position is that where a court grants relief undersection 759(2) and thereby cures a defect in stamp duty, the notice ofappeal filed within time is validated ab initio. Accordingly thequestion of the time bar does not arise.
Having regard to the nature of the preliminary objection that hasbeen taken in the instant case, the observation of the Privy Council inKarunapejjalage Bilindi v. Wellawa Attadassi Thero <“ is ofsignificance:-
"… it would be an unfortunate and probably unintended result ofthe Stamp Ordinance if a litigant should be debarred from anappeal on a ground which is from a practical point of view capableof easy remedy without injustice to any one –
in my view, the objection is of a technical nature, and should notbe allowed to thwart the course of justice.
The appeal is accordingly allowed, and the judgment of the Courtof Appeal is set aside. The Court of Appeal is directed to hear this onits merits.
KULATUNGA, J, -1 agreeRAMANATHAN, J, -1 agreeAppeal allowed.