034-NLR-NLR-V-64-NANAYAKKARA-and-another-Appellants-and-PAIVA-Respondent.pdf
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BASNAYA33D, C. J.—Nanayakkara v. Paiva
i' ;■
1961 ^Present: Basnayake, C.J., Gunasekara, J., and T. S. Fernando, J.
* NANAYAKKARA and another, Appellants, and PAIVA,
Respondent
S.C. 48/60—D. C. Colombo, 22734/S
Summary procedure—Action on a liquid claim—Application for leave to appear anddefend—Computation of time limit—Civil Procedure Code, as. 703, 704,706—Interpretation Ordinance, 83. 2, 8 (3), 11.
Where, in an action on a liquid claim under Chapter LIII of the CivilProcedure Code, the summons in Form No. 19 required the defendants tocause an appearance to be entered for them within seven days from the servicethereof, inclusive of the day of such service—
Held (Basnayake, C.J., dissenting), that, in computing the period withinwhich the defendants were required to make an application for leaveto appear and defend the action, Sundays and public holidays should beexcluded, in terms of section 11, read with section 8 (3), of the InterpretationOrdinance.
.A.PPEAL from an order of the District Court, Colombo.
Nimal Senanayalce, with Desmond Fernando and S. Wickremasinghe,for 1st and 2nd Defendants-Appellants.
T. Arulananthan, for Plaintiff-Respondent.
.Cur. adv. vult.
December 20, 1961. BAsnayake, C.J.—
This appeal comes for hearing before a bench. composed of threeJudges because the bench composed of two Judges before which it cameup for hearing in the ordinary course was unable to agree as to thedecree that should be passed by the Court.
The question for decision is whether, in computing the time prescribedin a summons in Form No. 19 within which the defendant is requiredto obtain leave from the Court to appear and defend the action on aliquid claim under Chapter LIU of the Civil Procedure Code, Sundaysand Public Holidays should be excluded.
The relevant portion of the summons in the instant case which, asrequired by section 703, is in Form 19 of the Forms in the Schedule tothe Civil Procedure Code reads :
: • ** You are hereby summoned to obtain leave from the Court within
seven dayB from the service hereof, inclusive of the day of such service; to i appear and defend the action, within such time to cause an appear*ance to be entered for you. ” .
9—ixiv
2—B. 5228 —1,883 (10/82)
104BASNAYAKE, C.J.—Nanayakkctra v. Paiva
The summons was served oh 1st December 1959. On 8th Decemberthe proctor of the defendants appears to have tendered to the Courtoffice a proxy and an affidavit signed by them together with a motiondated the same date to the following effect:—
“ I file my appointment from the defendants together with theiraffidavit and for the reason stated therein move that the defendants’application be fixed for inquiry. ”
On the next day—9th December—when the matter came up in openCourt, the learned District Judge made the following order :— “ Mr.
T.G. de Silva to support the application as it appears to me Defendantsare out of time. ” No application for leave to appear and defend wasfiled along with the affidavit or even later. Section 706 requires thatthere should bo an application by the defendant for lcavo to appear anddefend the action. It reads—
“ The court shall, upon application by the defendant, give leaveto appear and to defend the action upon the defendant paying intocourt the sum mentioned in the summons, or upon affidavits satis- .factory to the court, which disclose a defence or such facts as wouldmake it incumbent on the holder to prove consideration, or suchother facts as the court may deem sufficient to support the applicationand on such terms as to security, framing, and recording issues, orotherwise, as he court thinks fit. ”
The learned Judge appears to have treated ' the affidavit as an-application. But even in the affidavit there is no prayer for leave toappear and defend. The last sentence of it which contains a requestfor relief reads—“ We beg that the Court be pleased in view of the abovefacts to dismiss the plaintiff’s action with costs. ”
Learned counsel relies on section 8 (3) of the Interpretation Ordinancefor his submission that Sundays and Public Holidays are to be excludedin the computation of the time prescribed in a summons in Form 19 ofthe Schedule to the Civil Procedure Code issued under section 703.That provision reads :
“ Where a limited time not exceeding six days from any date or^from the happening of any event is appointed or allowed by anywritten law for the doing of any act or the taking of any proceedingin a court or office, every intervening Sunday or public holiday shallbo excluded from the computation of such time. ”
♦
Written law is defined in section 2 thus :
“ (v) “written law” shall mean and include all Ordinances, andall orders, proclamations, letters patent, rules, by-laws, regulations,warrants, and process of every kind made or issued by any body orperson having authority under any statutory or other enactment ’to make or issue the same in and for the Island of Ceylon or anypart thereof, but it shall not include any Imperial Statute extending
GT7NASEKARA, J.—jNanayakkara v. Paiva
195
expressly or by necessary implication to the Island of Ceylon, nor
any Order of the King in Council, Royal Charter, or Royal Letters
Patent; ”
Learned counsel submits that summons is a process and falls withinthe ambit of the expression “ written law Assuming that a summonsis written law, the time appointed in the summons in the instant caseis. seven .days and not six. Section 8 (3) applies to a case where timeappointed does not exceed six days. . It does not therefore apply tothe summons in the instant case.
There is no universal rule for the computation of time when an actis required to be done within a given number of dayB. In a case suchas the one we have before us where the defendant is required to makeapplication for leave to appear and defend within seven days from thedate of service. of the summons he would be within time if he appearedand made his application on the very day the summons was served.But in arriving at the last day for making such an application it is usual,and there are decisions which so hold, that the first day is excluded,from the computation unless the context, as in the instant case, requiresits inclusion. Where the expression “ clear days ” is used, both ter-minals are excluded. See Nallan v. Ossen1 and Hassen v. The CeylonWharfage Co.2. The former is a case on this very form of summons andit has been held that Sundays and Public Holidays are not excludedin the computation of the seven days.
. As 1st December, the date on which the summons was served, mustin accordance with the instruction as to computation given in thesummons itself be reckoned for the purpose of computing the sevendAys' the seventh day was 7th December. The words “ inclusive of theday ,of the service hereof” are inserted to leave no room for mis-understanding as to the method of computation and to enable thedefendants, if they wish to do so, to appear on the very day thesummons is served.
»The learned District Judge was therefore right in. holding that theapplication for leave to appear and defend, if application there was,"and I am inclined to think there was not such an application as iscontemplated by section 706, was out of time.
. The appeal is dismissed with costs.
Gttnasekara J.—
I regret I am unable to agree with the judgment of my lord the ChiefJustice.
1 The period specified as seven days from the service of the summons. inclusive of the day of such service is identical with a period of six daysfrom that event exclusive of the day of service. Section 11 of theInterpretation Ordinance provides that" for the purpose of excludingthe first in a – series of days or any period of time it shall be deemed to
•j! I–11'1897) 2 N. Li R. 381. .’:' * (1910) 13 N. L. R.101 {F.' B.]
10G,T. S. FERNANDO, J*—Uanayakkarav. Paiva
have been and to be sufficient to use the word “ from ”. The periodin question is therefore identical with a period of six days from theservice of the summons. That is to say, a period of six days from theservice of the summons is allowed for the taking of the proceeding incourt which is indicated in the summons, and therefore, in terms ofsection 8 (3) of the Interpretation Ordinance, the intervening Sunday-must be excluded from the computation of the time allowed.
The case of Nallanv. Ossen1, which is "cited by the Chief Justice, wasdecided on the 5th August 1897, before the Interpretation Ordinancecame into force.
• The only matter that was argued before us was* the question as tothe computation of the time specified in the summons. It was assumedin the argument of the appeal and it has been assumed in the proceedingsbefore the district court and in the learned district judge’s order thatthere was before that court an application by the defendants for leaveto appear and defend the action. The order under appeal must beset aside and the case must go back for an order to be made by thedistrict court upon the footing that the 8th December 1959 was withinthe time specified in the summons. The appellants must have theircosts of appeal.
T. S. Fernando, J.—
In this action of summary procedure on a liquid claim institutedagainst the defendants on 19th October 1959, the District Judge madeorder on 2Sth October 1959 as follows :—
«
“ Defendant to appear within seven days from the date of service. ’*
A summons was issued following on this order, and this summons, asrequired by section 703 of the Civil Procedure Code, was in the formNo. 19 prescribed by the Code and contained in the First Schedulethereto. It required the defendants to obtain leave from the courtwithin seven days from the service thereof, inclusive of the day of suchservice.
The day on which this summons was served on the defendants was1st December 1959. The proctor for the defendants filed in court on8th December 1959 proxy from the defendants together with affidavitand moved that the application of the defendants be fixed for inquiry.-The filing of these papers was treated by the learned District Judge asan application by the defendants for leave to appear and defend withinthe meaning of section 704 of the Code, and no argument was raisedeither in the District Court or before us that it did not constitute suchan application.
The plaintiffs contended in the District Court that the defendants’application could not be entertained by the court as it was out of time.The learned District Judge held with the plaintiffs on this question.Hence this appeal.
Section 11 of the Interpretation Ordinance (Cap. 2) enacts that, inall Ordinances, for the purpose of excluding the first in a series of days
'(1897) 2N. L. It. 381:
T. S. FjfiRNANDO, J.—Nanayaklcara v. JPaiva
197
or any period of time, it shall be deemed to have been and to be sufficientto use word “ from In accordance with that section, in computingthe period of time during which the defendants in this case wererequired to apply for leave to appear and defend, the 1st day ofDecember 1959 had to be excluded. Therefore, when they applied on8th December 1959 they were, in my opinion, within the time allowedby law.
Apart from section 11, learned counsel for the defendants relies onsection 8 (3) of the same Ordinance. , He contends that, the summonsthat issued from the court being “ written law ” within the meaningof section 2 of the Interpretation Ordinance, section 8 (3) operates toexclude the intervening Sunday (December 6th) from the computationof the time allowed. By section 8 (3) where a limited time notexceeding six days from any date or from the happening of any eventis appointed or allowed by any written law for the doing of any actor the taking of any proceeding in a court or office, every interveningSunday or public holiday shall be excluded from the computation ofsuch time. It will be seen that if the first day is excluded as requiredby section 11 then the time (“ within seven days from the servicehereof, inclusive of the day of such service ”) that has been allowed inthe summons for an appearance by the defendants is a time notexceeding six days. If so, section 8 (3) also operates to preventthe Sunday that intervened in this case being included in the computationof time allowed. I am, therefore, of opinion that the contention onbehalf of the defendants is correct. I would allow the appeal with costsand remit the case back to the District Court for action to be now takenon the basis that the defendants applied within time for leave to appearand defend the action.
I should add that a similar point came up for consideration recentlyiri Perera v. KarunanayaJce1 before a Bench of Two Judges, but thequestion of the application of the Interpretation Ordinance does notthere appear to have received consideration. Mr. Senanayake, however,relied on the decision embodied in the last paragraph of the judgmentin that case where the Court refused to interfere with an order of theDistrict Court in favour of the defendant because it held that whilethe District Judge, in accepting the plaint, ordered that the defendantshould “ appear within seven days of service of summons ”, theSecretary of the District Court had no authority to compute the periodof seven days to include the day of service. We have precisely thesame situation here. In view of the fact that on the question arguedbefore us I have reached a conclusion in favour of the defendants itis hardly necessary to say anything further. I would like, however,to add' that had I, on the question argued, reached a conclusion infavour of the plaintiffs, I would have been prepared to apply in favourof the defendants the decision embodied in the last paragraph of thejudgment in Perera v. Karunanayake (supra).
Appeal allowed.
1 {I960) 62 N. L. R. 423.
2*It 0228 (10/02)