075-NLR-NLR-V-43-MOHAMED-v.-CONDRAD.pdf
330
NIHILL J.:—Mohamed v. Condrad.
1941Present: Hearne and Nihill JJ.
MOHAMED v. CONDRAD.173—D. C. Colombo, 4,235.
Appeal—Failure to give notice of security—Alleged waiver by respondent’sproctor—Subsequent waiver is no excuse—Civil Procedure Code, s. 756.On March 27, 1941, the appellant tendered his petition of appealbut he did not forthwith give notice that he would on a specified datetender security for respondent’s costs. On April 4 the appellant movedthe Court, by consent of the respondent’s proctor for leave to deposita sum of money as security. This motion bore on the face of it, over thesignature of the respondent’s proctor, the words "Received notice,
I consent ".
Held, that there had been no waiver of security by respondent.
Held, further-, that even if there had been a waiver on April 4, it wouldnot cure the failure to comply with an essential requirement of thesection on. March 27 which would abate the appeal.
As no notice was given to appellants’ Counsel of the preliminaryobjection, the appeal Was rejected without costs.
^ PPEAL from a judgment of the District Judge of Colombo.
N.E. Weerasooria, K.C. (with him Ivor Misso), for plaintiff, appellant.
N.
S.Subramaniam for defendant, respondent.
Cur. adv. vult.
December 9,1941. Nihill J.—
A preliminary objection has been taken to the hearing of this appealon the ground it is not properly before this Court as it must be heldto have abated in the Court below for want of conformity with an essentialrequirement of section 756 of the Civil Procedure Code.
331
NIHILL J.—Mohamed v. Condrud.
The facts on which the objection has been taken are as follows: —On March 27, 1941, the appellant tendered his petition of appeal. Hedid not, however, forthwith give notice to the respondent that he wouldon a specified date tender security for the respondent's costs. On April 4,however, the appellant moved the Court by consent of the respondent sproctor for leave to deposit Rs. 75 as security for the respondent's costs.This motion bears on the face of it over the signature of the respondent'sproctor the words “ Received notice and I consent
It is now clear following the decision of five Judges in de Silva v.Seenathumma' that the tendering of notice of security forthwith is artessential requirement of section 756, and the judgment of Soertsz J.,with which the other learned Judges agreed, makes it also clear thatwhere there has been a failure to comply with an essential requirementof the section the Court is not: empowered by sub-section (3) of thesection to grant relief. In the course of the same judgment referencewas made to the judgment of Abrahams C.J. in Zahira Umvia v. Abey-singhe' which was a case decided by a divisional Bench of three Judges.In giving the judgment of that Bench, Abrahams C.J. said:—“ It seems tome that there are two forms of a breach of section 756 in respect of whichthis Court ought not to give relief. One is when, whether a materialprejudice has been caused Or not, non-compliance with one of the termsof section 756 has been made without an excuse, and the other is when,though non-compliance with an essential term may be trivial. a materialprejudice has been occasioned ”.
In explaining this passage, Soertsz J. said thus : —
“ I think I am in a position to say—and the context supports the view—that when Abrahams C.J. used the words ‘ without • an excuse '.he had in mind the practice thatybbtained in some Courts for proctorsto waive security for costs by arrangement among themselves, and heintended to say that in a case where no notice of security was givenm pursuance of that practice, an objection taken in this Court that theletter ot the law had not been complied ydth would be overruled andthe failure excused, for a party may waive a rule of Civil Procedureintended for his benefit and such a waiver would estop him fromthereafter insisting upon the requirement he had waived. I canimagine no other excuse that could avail a party who has failed tosomply with the peremptory requirement to give notice of security. ”
It will be seen then that the point for our decision is whether theconsent given by the respondent’s proctor on April 4 can waive anirregularity committed on March 27. In other words can a waiver havea retrospective effect ? Certainly the respondent has not been materiallyprejudiced because on April 4 he was satisfied with the security offered.No difficulty would arise had the respondent waived the requirement togive notice of security on March 27, but there was no waiver then or,in fact, subsequently, for the consent of April 4 was in terms a consentto the motion and nothing more, for I think the words “ Received notice ”
> 41 X. L.'R. 241.
» 30 X. L. n. SI.
332
NIHILL. J.— -Mohamed v. Ccmdrad.
must mean notice of the motion. Even if the document which therespondent’s proctor signed on April 4 had expressly included a waiverof the irregularity committed on March 27, I should doubt its effectiveness,because I think the true position is that this appeal abated on March 28by reason of the failure to comply with an essential requirement on theday previously. If that be so, subsequent agreements between the partiescannot put the ciock back. To hold otherwise might well put out of gearthe whole machinery of the Code relating to appeals.
Although I have no sympathy with the respondent, I think he mustsucceed on this objection. As notice was not given to the appellant’sCounsel that a preliminary objection would be taken, I think the appealshould be rejected without costs.
Hearne J.—I agree.
– Appeal rejected.