030-NLR-NLR-V-59-M.-M.-L.-M.-A.-C.-ALIM.-Petitioner-and-A.-L.-P.-H.-ASIA-UMMA-Respondent.pdf
.Ft. Is*. G. FFBXAXDO, J.—Alim v. Asia Utntna
103
1957 Present : H. N. G. Fernando, J., and T. S. Fernando, J.
M. M. L. M. A. C. AUDI, Petitioner, and.A. L. P. H. ASIA UMMA, Respondent
8. G. Application 101—In the matter of an Application for ConditionalLeave to appeal to the Privy Council in S. C. 10, D. G. Batticaloa 1,099
Privy Council—•Application for conditional leave to appeal—Stamping of documents' relating thereto—The Appeals (Privy Council) Ordinance (Cap. So), Schedule,P-ule 2—Stamp Ordinance (Cap. ISO), s. 12 and Schedule. A, Part II.
Where a petition for conditional leave to appeal to the Privy Council isaccompanied, in the first instance, by an affidavit as to service of notice of itto the opposite party in compliance of tho requirement of Kule 2 of Schedule 2of the Appeals (Privy Council) Ordinance, the two documents must, undersection 12 of the Stamp Ordinance read with Schedule A, Part II, be treated osseparate and distinct for stamping purposes. Failure, therefore, to stamp thopetition i3 a fatal irregularity, alt hough the affidavit is properly stamped.
A PPLICATION for conditional leave to appeal to the Privy Council.
.E. It. S. R. Coomarasuamy, with 31. S. 31. Nazeem and T. G.Guna-sekera, for the petitioner..
V. K. Palasuntheram, for the respondent.-‘
' . •'Cur. adv. vult.
September 1G, 1957. H. N. G.* Fjerxaxdo, J.—. . ;.
This application for conditional leave to appeal to the Privy Council _•against a judgment of this Court has been opposed by the respondent on-tho ground that the application for leave is not duly stamped. ' . .-
' 104' " ‘ ‘ ' .r : 3E£. N. G. rEEXANDO, J.-—Alim v. Asia Umma -"T. ; .. . .
On 2oth February 1957 the Proctor for the peittioner .'filed -with the. Registrar the'fqfiowing‘documents‘_:
’ A. A motion (unstamped) signed by the Proctor “ I file petition -and affidavit of the petitioner abovenamed and for reasons stated-therein move-.that – the Court be pleased to grant . himconditional leave. …”.'-
• B. A document (also unstamped) purporting to be a petition signed■ by the Proctor and containing certain statements upon the basis of-which the petitioner prays for conditional leave to appeal.
. C. A third document (stamped)—numbered pages four and five—signed by the petitioner himself. This document takes the form usualfor an affidavit, and in it the petitioner liimself affirms to the identicalmatters averred by his Proctor in the document B mentioned above.This third document also concludes with a prayer for conditional leaveto appeal.. .-
The duplicate of a purported notice to the respondent of theintention to appeal having affixed thereto a postal receipt (stamped)
• in respect of a postal article received from the petitioner and addressedto the respondent…
A proxy (stamped) signed by the petitioner in favour of his
Proctor..
The substantial point we have to decide is whether these documentshave.been duly stamped in accordance with the provisions of the SecondSchedule to the Stamp Ordinance (Cap. 1S9) prescribing “ the duties ontaw Proceedings ”. The first three items mentioned in the Scheduleare respectively “ (1) Proxy (2) Affidavit (3) Application for conditionalleave ”, and it would seem at first sight that the Statute requires eachof the documents mentioned in the first three items to be separatelystamped and that therefore in the present case the failure to stamp -document B, which is the petition for leave to appeal, constituted a non-compliance with the provisions of the Stamp Ordinance.
It seems to me that in the circumstances of the present case the peti-tioner can only rely on two possible arguments, firstly that document C—the affidavit—is superfluous, and that therefore the requirement thatan application for conditional leave should be stamped has been satis-fied through the provision of stamps on document G; secondly thatalthough document G takes the form of an affidavit, it also contains aprayer for leave to appeal and should accordingly be regarded as theapplication. It is necessary to refer to the Rules in the Schedule to thePrivy Council Appeals Ordinance (Cap. 85) in order to consider thesearguments. Rule 2 of the Schedule provides as follows :—'
“ 2. Application to the court for leave to appeal shall be made bypetition within thirty days from the date of the Judgment to be appealedfrom, and the applicant shall, within fourteen days from the date of such •judgment, give the opposite party notice of such intended application. ”
11. X. G-. KEBXAXDO, J.—Alim v. Asia Uinma
105
A prospective appellant is bound under tins Rule to give notice to theopposite party of his intention to appeal, but there is no further expressprovision in the Rules concerning that matter, and in particular no pro-vision requiring the appellant to satisfy the Court that notice has beenduly given to the opposite party. It is argued therefore that althoughin the present case there is an affidavit of the petitioner affirming (inparagraph 3) that notice was gi%'en to the respondent, there was nonecessity for such an affirmation because conditional leave could havebeen granted by the Court without it.
Although the Rules do not expressly so provide I have no doubt thata Judge who considers an application for leave to appeal has a right,if not also a duty, to satisfy himself that the petitioner has given noticeunder Rule 2 to the opposite party, and may in his discretion requirefor that purpose something more than an unsworn statement by thepetitioner’s Proctor. Even, therefore, though it may not be essentialthat the petition should in the first instance be accompanied by anaffidavit as to service of notice, the Court may well require such an affi-davit as a condition precedent to the granting of the application for leave.
It is not argued that it is unusual for a petition for leave to appeal tobe accompanied by an affidavit: on the contrary there is little doubtthat such is the ordinary practice. When, therefore, as in the presentcase, there is an affidavit separate from the petition, it must in my opinionbe assumed that the deponent’s object was to induce the Court to acceptas established the several matters therein averred. The fact that docu-ment D and the postal receipt were also filed makes this assumption allthe more valid. Wln’le it is unnecessary in this case to decide whetheror not an affidavit as to service of notice is essential, it is at least clear thatthe present petitioner intended to establish by means of his affidavitthat he had complied with Rule 2. One clear advantage, for instance,gained b}r filing an affidavit at the initial stage would be the saving ofdela3r in the event of the Court requiring better proof of the notice thanthe Proctor’s statement in the petition. The affidavit then has to beregarded as having been intentionally filed for a purpose ancillary to thepurpose for which the petition—document B—was filed. In thesecircumstances section 12 of the .Stamp Ordinance applies and the twodocuments must be treated as distinct for stamping purposes.
I would hold therefore that the petition—document B—requiredstamping and, following the recent decision in Usoof v. NadcirajahChelliar that the failure to stamp it prevents this Court from entertainingthe petition.■
The application for conditional leave to appeal to the Privy Council-is refused with costs.
T. S. Perx.ando, J.—I agree.
Application_ refused-.
> (1957) 58 N. L. it. 436.