106-NLR-NLR-V-69-M.-A.-C.-M.-SALIM-Petitioner-and-P.-SANTHIYA-and-others-Respondents.pdf
490
8ANSONI, C.J.—Seyed llohamed v. Ibrahim
1965 Present: T. S. Fernando, J., and Sri Skanda Rajah, J.M. A. C. M. SALIM, Petitioner, and P. SANTHIYA and others,
Respondents
S. C. 251164—Application for Conditional Leave to Appeal to the PrivyCouncil in S. C. 39 (Inly.) of 1960/D. C. Kurunegala, 6772jP
Appeal—Judgment of Supreme Court—Requirement that it should be pronounced onan appointed date—Non-compliance—Effect on inability to comply with Rule 2of Schedule to Appeals (Privy Council) Ordinance—Inherent power of Court togrant relief—Civil Procedure Code, s. 774 (7).
After the termination of the hearing of an appeal, the judgment of the SupremeCourt was pronounced on a date which was not notified to the parties in com-pliance with the requirement of section 774 (1) of the Civil Procedure Code.In the present application for conditional leave to appeal to the Privy Councilagainst the judgment, the petitioner, who came to know of the judgment aboutfour weeks after it was pronounced, was consequently unable to give the oppositeparties notice, within the time prescribed by Rule 2 of the Schedule to theAppeals (Privy Council) Ordinance, about his intention to appeal to the PrivyCouncil.
Held, that the petitioner should be granted relief. In such a case, the Courthas inherent powers to repair the injury done to a party by its own act.
T. S. FERNAKDO, J.—Salim v. Sanlhiya
491
Application for conditional leave to appeal to the Privy Council.Hannan Ismail, for the Petitioner.
S: Sharvananda, for the Plaintiffs-Respondents.
Clarence de Silva, for the 11th (A.E) and 12th Defendants-Respondents.
Cur. adv. wit.
June 14, 1965. T. S. Fernando, J.—
Judgment on appeal against which it is now sought to appeal to thePrivy Council was pronounced by this Court on the 30th June 1964.This application for conditional leave to appeal was presented to thiBCourt on the 30th July 1964. Notice of the intention of the petitionerto make this application was given to the respondents only by letterdated 29th July 1964 and reached them only on the 30th July 1964.It is therefore quite apparent that the petitioner has failed to complywith rule 2 of the Rules in the Schedule to the Appeals (Privy Council)Ordinance (Cap. 100) which requires that notice of intention to appealshall be given to the opposite parties within fourteen days of thepronouncing of the judgment.
As an explanation for his omission to comply with the said rule 2,the petitioner contends that the judgment in question was not pronouncedby this Court in the manner contemplated by section 774 (1) of the CivilProcedure Code. That sub-section requires tho Court, on the terminationof the hearing of an appeal, to pronounce judgment in open court eitherat the conclusion of such hearing or, on some future day which shalleither be appointed at the conclusion of the hearing or of which noticeshall subsequently be given to the parties or their counsel. It is admittedthat judgment on this appeal was not pronounced at the conclusion ofthe hearing and also that it was pronounced neither oh an appointedday nor on a day of which notice had been given to the parties or theircounsel as contemplated by the Code.
The petitioner states that the first intimation ho had of the pronouncingof the judgment was on the 27th July 1964. We do not doubt thisstatement. Counsel appearing for him has brought to our notice anunreported judgment of this Court (Sansoni, J. and G. P. A. Silva, J:)of the 6th July 1962 in S.C. Application No. 161/62—Application for-Conditional Leave to Appeal in S.C. 2 of 1961 /Income Tax Case StatedBRA 285—by which conditional leave was granted where the Courtwas doubtful whether there had been a compliance with section 774 (1)of the Civil Procedure Code. In the instant application the petitionerhas succeeded in establishing that there has been no compliance withthe requirement of the aforesaid section in respect of notice to partiesof the pronouncing of the judgment.
4*2
Stephen t>. Eland*
The petitioner has shown himself quite diligent from the momenthe became aware of the pronouncing of the judgment. This Courtpointed out in Sirinivctsa Thero v. Sudassi Thero—(1960) 63 N.L.R.at p. 34—that it is a rule that a Court of Justice will not permit a suitorto suffer by reason of its own wrongful act and that it is under a duty touse its inherent powers to repair the injury done to a party by its act.In these circumstances it is plain that our duty is to grant conditionalleave to appeal, and that leave is hereby granted on the usual terms.
Ski Skanda Rajah, J.—I agree.
Application allowed.