N aged ingam v. Thanabalasingham
1949Present: Nagalingam and Windham JJ.NAGALINGAM, Petitioner, and THA NAB ALASING HAM et al.,
S. C. 537—Application fok conditional leave to appealto the Privy Council in I>. C. Point Pedro, 2,198
Privy Council—Conditional leave to appeal—Due notice—Failure to give it—Party not necessary—Clerical errors in notice—-Requirements peremptory—Privy Council Apypeal Ordinance—Schedule—rule 2.
Notice of an intended application for leave to appeal to the PrivyCouncil must be given to a respondent even though no relief is claimedagainst him.
A notice giving a wrong date of the judgment in respect of which theapplication is made is not a compliance with the peremptory provisionof rule 2 of the Schedule to the Appeals (Privy Council) Ordinance.Wijesinghe Hamine v. Ekanayake (1940) 41 24. L. R. 415 followed.
WINDHAM J.—Nagalingam v. Thanabalasingham
.^^.PPLICATION for conditional leave to appeal to the Privy Council.
C. CheUappah, for the petitioner.
H. W. Tambiah, with S. Canagarayer, for 2nd, 3rd and 4th respondents.
Cur. adv. vult.
February 3, 1949. Windham J.—
This is an application for conditional leave to appeal to the PrivyCouncil from a judgment of this Court upon two consolidated appeals,which were lodged by the present plaintiff-petitioner and by the second,third and fourth defondants-respondents, respectively, against a judgmentfor partition. More than one objection has been taken by the defendants-respondents, the main one being that the plaintiff failed to give thedefendants due notice of their intended application for conditional leavedo appeal as required by rule 2 of the Schedule to the Appeals (PrivyCouncil) Ordinance (Cap. 85), which provides that “ the applicant shall,within fourteen days of the date of such judgment, give the oppositeparty notice of such intended application ”.
The judgment from which conditional leave to appeal is sought wasdated October 13,1948, and it is not disputed that the plaintiff accordinglyhad until the end of October 27, in which to give the required notice.He proceeded to take the following action.
On October 26, he sent a telegram to the second defendant, which thelatter admits having received on the same day, in the following terms :—“ Please take notice for yourself and others that I am appealing to PrivyCouncil in 2198 D. C. Point Pedro ”.
On the same day he sent a telegram to the firm of proctors who had inthe original proceedings represented the second, third and fourthdefendants, in the following terms :—“ Please take notice that I amapplying for conditional leave to appeal to Privy Council in 2198 ”. Thesecond, third and fourth defendants each deny that at that time theproctors to whom this telegram was sent were authorized to act or toreceive such notices for them.
On the next day, October 27, the plaintiff sent a telegram to the fourthdefendant in the following terms :—“ Take notice that I the plaintiffintend to make an application to the Honourable the Supreme Court forleave to appeal to the Privy Council from the judgment and decree of the11 (sic) day of October, 1948 ”. The fourth defendant denies havingreceived this telegram on October 27, or at all.
On October 27, the plaintiff sent an express letter to each of the three(second, third and fourth) defendants in the following terms :—“ Takenotice that I intend to make an application to the Honourable the SupremeCourt for leave to appeal to the Privy Council from the judgment anddecree of the Supreme Court dated the 11th (sic) day of October, 1948,in the above case ”. At the head of the letter the case number andreference was correctly cited. The second defendant admits receiving this
WINDHAM J.—Nagalingam. v. Thanabalasingham
letter, but only on October 31 ; it was received at his residence on October27, by a person who was not his agent for service, he himself being awayfrom his residence from October 27 to 31. The third defendant receivedthe letter on October 28. The fourth defendant denies receiving it at all.
Now on the above facts, even if we were to assume in favour of theplaintiff that the second, third and fourth defendants had each received,before the end of October 27, both the telegrams and the letters sent tothem respectively, and that the proctors to whom the telegram was sentwere acting for them at the time, there would still be a failure by theplaintiff, in more than one respect, to comply with the provisions ofrule 2 of the Schedule to the Appeals (Privy Council) Ordinance.
In the first place, neither any telegrams nor a letter nor any otherform of notice under rule 2 was ever sent to the first defendant-respondent,although he was a party to the appeal. It is true that this first defendantasked for no relief in the appeal and was not represented, and that therewas no contest between him and the plaintiff. But nevertheless a propercompliance with rule 2 required notice to be served on him, since he wasa respondent in the appeal. I would refer to Wijesinghe Hamine v.Ekanayake *, where the judgment of Howard C.J. (Soertsz J. concurring)contained the following decision on the point :—“ Rule 2 of the Scheduleto the Ordinance provides that the applicant shall, within fourteen daysfrom the date of such judgment, give the ‘opposite party’ notice of suchintended application. Inasmuch as only the first plaintiff has beengiven notice it is obvious that compliance has not been made with theprovisions of the rule. Counsel for the applicant has contended that asthe second plaintiff has not executed the deed, he is not a necessaryparty to the appeal. I do not consider there is any substance in thiscontention. ‘ Opposite party ’ must imply all the parties in whosefavour the judgment appealed against was given. In this connectionI would refer to the judgment of the Full Bench in Ibrahim v. Beebee et al. *and Suppramaniam Chettiar v. Senanayake and others 3. In the latter casede Kretser J. held that even when parties against whom no relief isclaimed are made respondents to an appeal notice of security should begiven to them. For these reasons I am of opinion that notice has notbeen served on the opposite party. The application must, therefore, bedismissed with costs ”. With this decision I respectfully concur, andI must accordingly hold that the failure of the plaintiff to notify thefirst defendant respondent was a fatal non-compliance -with the require-ments of rule 2 of the Schedule to the Appeals (Privy Council) Ordinance.
Secondly, the telegram sent to the fourth defendant in the present case,and the letter sent to all three contesting defendants, wrongly describedthe judgment in respect of which the application was to be made as beingdated October 11, whereas in fact there was no judgment of that date,the correct date being October 13. No doubt this was a clerical errorand would not have misled any of the defendants. But strict compliancewith the requirements of the rules set out in the Schedule to the Appeals(Privy Council) Ordinance has always been demanded by this Court;and it has been held more than once that the rules admit of no relaxation1 (1940) 41 N. L. It. 415.2 (1916) 19 N. L. R. 989.
3 (1939) 41 N. L. R. 271; 16 C. L. W. 41.
Wijeanathan o. Elections Officer, Trincomalee District
even in hard cases. In Weerakoon Appuhamy v. Wijesinghetheir requirements were held to be “ peremptory and paramount ” ;and in Tarrant and Go. v. Ibrahim Lebbe Marilclcar s, Garvin S.P. J.said, in a case calling for the grant of indulgence, —“ It does not appeartous that the terms of the rule vest in us any power to relax it in any casewhich may appear to us to be a case in which some indulgence might beaccorded the applicant In the light of these considerations I amunable to hold that the telegram to the fourth defendant, or the expressletter sent to all three defendants, constituted valid notices underrule 2. And the failure to serve a valid notice on the fourth defend-ant was alone sufficient to vitiate the present application, in view ofthe decision in Wijesinghe Hamine v. Ekanayake to which I havealready referred.
For these reasons I hold that the plaintiff has failed to comply with therequirements of rule 2 of the Schedule to the Appeals (Privy Council)Ordinance with regard to notifying the opposite party, and his=application is accordingly dismissed with costs.
Naoaungam J.—I agree.
NAGALINGAM, Petitioner, and THANABALASINGHAM et al., Respondents