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NALLAN v. OSSEN.D. C., Colombo, 10,074.
July 30 andAugust 6.
Time, calculation of—Summary procedure under chapter LIII. of theCivil Procedure 'Code—Sundays and public holidays.
In the calculation of the time -within which a defendant is toobtain leave to appear mid defend on a summons under chapterL.TII. of the Civil Procedure Code, Sundays mid public holidays areto be included; but when the last day of the period allowed fallson a Sunday or public holiday, the defendant may move on thenext Court day.
'J'HE facts of the case appear in the judgments.'
Domhorst and Pereira, for appellant.Sampayo, for respondent.
5th August, 1897. Withers, J.—
This appeal concerns an important point of practice. A liquidclaim was presented to the Court under chapter LIU. of theCode, and summons went out in conformity with the claim. Thematerial part of the summons runs thus:—“ You are hereby“ summoned to obtain leave from the Court within seven days“ from the service hereof, inclusive of the day of such service, to“ appear mid defend the action, and within such time to cause“ an appearance to be entered for you, in default whereof the“ plaintiff will be entitled at any time after the expiration of such" seven days to obtain a decree,” &c. The summons was servedon the 31st May last, so that the seventh day fell upon a Sunday.The next day, Monday, the defendant appeared before the Courtbelow and obtained leave to defend ; eight days’ time was allowedthe defendant to file answer. On the 8th June plaintiff movedthe Court to vacate its order granting leave to the defendant toput in his answer, and to enter up judgment for the plaintiff onthe ground that the Court’s order was made per incuriam, thedefendant being out of time.
The question for decision is, was the last day, Sunday, to countone of the seven days, or as that was a dies non, was Monday totake its place ?
’ The judge held that Monday was in time, and hence this appeal.Against this order refusing plaintiff’s application was cited ajudgment reported in 1 8. C. B. 131 (De Silva et al. v: Hendricket al.).’ That case concerned an action under section 247‘of theCivil Procedure Code, where the parly ^aggrieved has fourteen days’time from the date of the adverse order to institute his action.In that case the fourteenth day fell on a Sunday, and the actionwas instituted on the following Monday.
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July 30 andAugust 6.
Mr. Justice Dias and Mr. Justice Lawrie, who composed theCourt of Appeal, decided that Monday was too late.
They followed the ruling of the Pull Court in the case of CasieLebbe v. Idrooa Lebbe Marikar reported in 9 8. C. C. 182. Itwas there held that in the computation of the fourteen days undersection 247 Sundays and public holidays are included.
Mr. Dornhorst, who appeared for the appellant, very properlycalled our attention to a case in the Civil Minutes, which cameup before Mr. Justice Dias in appeal from District Court, Chilaw.There Mr. – Justice Dias observed : “ The rule with respect to the“ computation of time I take to be this, that in all cases in which“ by Ordinance or rules of Court any act is required to be done“ within a particular number of days without expressly excluding“ intervening Sundays and public holidays, these days should be“reckoned exclusive of the first and inclusive of the last day,“ unless the last day should happen to fall on a Sunday or public“ holiday, in which case the reckoning is made exclusive of that“ day also.”
This ruling at first sight appears to conflict with the ruling inDe Silva v. Hendrick, but when one bears in mind the distinctionbetween acts of a party and an act required by the law or a Judgethe cases are quite reconcilable. In this case the Court requiredthe defendant to appear and obtain leave within seven days.
The seventh day was a dies non, on which no judicial act couldbe done. The next. Court day was therefore available to thedefendant under Mr. Justice Dias’ ruling in the Chilaw case. Imust confess I thought that was the recognized practice of ourCourts in the case of acts required by law; at the same time Ican find nothing about it in the old rules, of practice. I proposetherefore' that we should follow the Chilaw case and affirm thejudgment.
I had occasion to consider the question raised in this appealtwo years ago when sitting as District Judge (C 5,647, D. C.,Colombo), and I then made order, in accordance with which theActing District Judge has now acted in allowing the defendant ,to appear before the Court and obtain leave to appear and defendwhen , the last ofTthe days mentioned in the special summonsunder chapter LIII. has fallen on a Sunday, and he applied onthe next Court day thereafter. I .believe my order was right, andwould affirm this order for the follojying reasons.
A distinction is to be observed between cases where the partyis of himself alone to do an act and those where the act is to be'
( m )done by the Court, and as Voet expresses it (11, 12, 4), “cum 1897.
“ judex ipse sine copiam facturus esset.” His remarks in section
Id I would refer to the former class.
To that former class belong, under reasons already given, the Bbowmb’acts of the party under IV. 18, 67, 53, “ within thirty days to state“ the objection to the Court ” (25,483, D. C., Chilaw, S. C. M., 41hFebruary, 1887), and under section 247, Civil Procedure Code, “ may“ institute action within fourteen days ” (9 8. C. C. 182 and 18. C. B.
131), and the filing of appeals, civil or criminal. The rule as tothese is that the first day is excluded from computation, while allSundays and holidays are included, and that the last day is alsoincluded, but that if it shall fall on a Sunday the party is allowedto do the act on the next Court day. This question about the lastday falling on Sunday arose in 25,483, D. C., Chilaw, and wasthere decided, but in 9 S.C. C. 182 and 1 S. C. B. 131 there had tobe considered only the inclusion of Sundays and holidays apartfrom the question of the last day being a Sunday.
These decisions therefore do not conflict. The rule 1 haverecited I gather from Chitty’s Archibalds Practice, 14, ed. 2, 1, 435,and Dowling’s Practice Cases, 200.
But where the act is to be done by the Court, and the Courtmakes holidays, or the last day is a Sunday, the party is to begiven the first day thereafter on which the Court will act.
Instances of such acts are as follows. Under the summaryprocedure on Bills of Exchange, Act 18 & 19 Viet., chap. 67, section2, it was provided that a Judge should upon application withintwelve days from the service of the special writ of summons givedefendant leave to appear and defend under certain conditions; ’and in Lewis v. Color, 1 F. and F. 906, it was held that Buie174 of Hilary Term 1853 applied, and that when the last day forappearance fell on a Sunday defendant had the next day for enteringappearance.
When the Court offices were closed on the last day for giving acapias because it happened to be Good Friday, the creditor hadtime given him to issue it till the next office day, which was thefollowing Wednesday, (Huges v. Griffith, 32 L. J. 47).
As a like consequence of Easter holidays, a defendant wasallowed time till the following Wednesday when the last date forentering appearance to a specially endorsed writ of summons fellon a Good Friday (Newford ®. ■ Hitchcock, ibid, 169), Erie, C.J.,
“ holding appearance to a writ of summons is the combined act of“ the party and the Court. It is an act which cannot be done by“ the party alone without the presence of an officer of the Court.”
1807,. In accordance with the first and last of these instances I ruled,
July 30 and and- still consider that when the .Court here summoned theAujrurt s. defendant to obtain leave to appear, Ac., within a certain numberBrown®, j. of days from that date, still future and uncertain by reason of theuncertainty of the date on which summons should be served, itspecified so many days on which the Court itself would be opento give the defendant audience, and that the debtor had right toclaim audience on the last working hour or moment of those days.It would be a mockery of procedure and an injustice, when fourdays were allowed as-sufficient to a Colombo resident, to refusehim leave to appear when he was served on the eve of Good Fridayand the foqr following holidays.
In deciding cases as totime under section 247 the Courts havenot yet discussed whether the institution , of an action is or is notunder our Civil Procedure Code “ the combined act of the party“ and the Court,” especially when a plaintiff in a Court of Bequestshas a right to state his case personally in open Court, and shouldtherefore have on the fourteenth day such Court open to him tomake his statement. I-should be quite prepared for this reason tofollow my Lord, the Acting Chief Justice, on the doubt he expressedregarding that decision.
a. c. bicbabdb, aobnq oovebmueht PBENTBB, OOLOMBO, CEYLON.
NALLAN v. OSSEN