NATCHIYA v. MARIKKAR

038-SLLR-SLLR-1982-2-NATCHIYA-v.-MARIKKAR.pdf


714
(1982) 2 S.L.R.
Sri Lanka Law Reports
NATCHIYA
v.MARIKKAR
SUPREME COURT
SHARVANANDA. J.. RATWATTE. J.. and SOZA J.
SC.77/81 1G;A. (LA 9/81 )■,:.■:
D C. PUTTALAM 214/LOCTOBER 11. 1982
Civil Procedure – Computation of time – Civil Procedure Code, Section 756(4) -Mode of counting 14 days – Holidays Act No.17 of 1965 Sections 2, 3 and 4 -Fuel Conservation (Five day week Act No. II of 1974), Section 2.
Should Saturdays' be included or' excluded in computing the fourteen daysprescribed by Section 756 (4} of Civil Procedure Code for the application ofleave to appeal to the Supreme Court?
Held –
In computing fourteen days in terms of Section 756(4) of Civil Procedure Code.Saturdays should be counted.
Cases referred to:
Muthusamy v. Leathen Tea Estates Association Ltd. C.A. Minutes 6.9.1979.
. (2) Dharmadasa v. Kumarasinghe (1981) 2 Sri L.R. 113.
Chalo.Nona v. Weerasinghe (1967) 70 N.L.R. 46.
Jayawardane v. Thiruchelvam (1968) 71 NLR 134
APPEAL from Judgment of Court of Appeal.
N.S.A. GunatiUeke with N. Mahenthiran for appellantM.Y.M. Faiz for the respondent.
SCNatchiya v. Marikkar (Shan-anaruia, J.)715
November 2, 1982.
SHARVANANDA, J.
The question that is involved in this appeal is whether Saturdaysshould be excluded or included in computing the fourteen daysprescribed by section 756(4) of the Civil Procedure Code for theapplication for Leave to Appeal to be presented to the Court 'ofAppeal. This sub-section provides that “the application for Leave toAppeal shall be presented to Supreme Court for this purpose by theparty appellant or his registered attorney within a period of fourteendays from the date when the order appealed against was pronouncedexclusive of the date of that date itself and of the day when theapplication is presented and of Sundays and public holidays”. Article169(2) of the Constitution provides that every reference in any existingwritten law to the Supreme Court shall be deemed to be a referenceto the Court of Appeal. Counsel for the appellant conceded that ifSaturdays are not excluded, the preliminary objection raised byCounsel for respondent, that the application had been filed out oftime should succeed. The Court of Appeal has upheld the objectionand hence this appeal by the appellant.
There is a conflict of views in the Court of Appeal on this question,Ratwatte, J., with whom Thambiah, J., agreed, held in C.A. No.55/76- Muttusamy Vs. Leathen Tea Estates Association Ltd. (1) – C.A.Minutes of 6th September, 1979, that Saturdays have to be includedin computing the time for preferring an appeal under section 1(d)(4)of the Industrial Disputes Act, which reads as follows:
“In computing the time within which the appeal must bepreferred to the Supreme Court the day on which the orderappealed from was made shall be included, but all Sundaysand Public Holidays shall be excluded.”
In that case Counsel for the appellant had argued that at the relevanttime in 1976 the Emergency (Fuel Conservation – Five Day Week)Regulations had declared Saturday to be a non-working day. (Thismatter is now governed by the Fuel Conservation – Five Day WeekAct, No. 11 of 1978). His argument was that since Saturday had beendeclared a non-working day it should be treated as Public Holidayfor the purpose of computing the time for appeal prescribed bysection 31(d)(4) of the Industrial Disputes Act. The Court held thatpublic holidays were only those days which were declared to be soby the Holidays Act No. 29 of 1971 and by any amendment madeto the Schedules to the Act by the Minister under section 4 of that
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Act and that since Saturday had not been declared to be a publicholiday under that Act, Saturdays had to be included in computingthe period of appeal.
As against the above view, Ranasinghe, J., with whom Atukorale,
J., agreed, held in Dharmadasa Vs. Kumarasinghe (2), in computingthe pe.riod of fourteen days specified in section 754(4) of the CivilProcedure Code within .which notice of appeal should be presented,the intervening Saturday should be excluded. This conclusion is basedon "the provisions of section 2 of the Fuel Conservation. – Five DayWeek Act, No. 11 of 1978 which provides that “Saturdays” shallnot be Working days in any Government Department etc.,”. Inreaching this decision Ranasinghe, J., has not however consideredthe earlier judgment of Ratwatte, J., as apparently it had not beencited to ,him. After analysing• the. relevant statutory provisions he
observed that “a consideration of the statutory provisionsdealing
with Public Holidays, and “dies non” do show: that all public holidaysare not “dies non”; that once a day is declared a “dies non” itshould be kept as a holiday.”
Section 2 of the Interpretation Ordinance (Cap. 2) defines a PublicHoliday to mean “any day which is to be observed as a publicholiday under the provisions of the Holidays Ordinance.”
The Holidays Ordinance (Cap. 177) of 1928 is the earliest Ordinancepassed to provide for Public and Bank Holidays in Ceylon. Section4 of . .this Ordinance provides that the “several days mentioned inthe Second Schedule (in this Ordinance referred to. as..“publicholidays”) shall;, in addition to Sundays, be “dies non”; and shall bekept (except as .hereinafter provided) as .holidays in Ceylon”
This Ordinance was repealed by the Holidays Act No. 17 of 1965.Section 3 & 4 of this Act declared what days should be public holidays;section 6 provided that every public holiday –
shall be a “dies non”; and
.shall be kept as a holiday.
Section 2 of this Act specially enacted that Sunday should henceforthcease to be a “dies non” and. should not be kept as a holiday. ThisAct was superseded by the Holidays Act No.29 of 1971. This lastAct is currently in force. Sectioni'2 of this Act declares that every.full-moon day should be a public holiday; section 3 provides that’the several days specified in the First Schedule to the Act shall be
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public holidays; section 5 of the Act states that every public holiday –
shall be “dies non”; and
shall be kept as a holiday
The provisions of section 5 militate against the' conclusion ofRanasinghe, J., that all public holidays are not “dies non”. Accordingto this section all public holidays are “dies non”, andrshould be keptas holidays. Non sequitur that “once a day is declared “dies non"it should be kept as a public holiday.” All “dies non" are not publicholidays; it is only when a day is declared a public holiday that such“dies non” is required to be kept as a holiday. A “dies non” doesnot proprio vigore operate as a public holiday.
Section 2 of . the Fuel Conservation – Five Day Week – Act No. 11of 1978 provides that “Saturdays shall not be working days in anyGovernment Department.” The effect of this provision is that Saturdayhas become a day on which the Court or office will be closed andthe office will not be open to any party for the doing of any act orthe taking of any proceeding otherwise, but it is not a holiday.
A “dies non” should be distinguished from a public holiday. Section8 of the Interpretation Ordinance reflects this distinction clearly.Section 8(1) provides that
“where a limited time from any day or from the happeningof any event is appointed or allowed by any written law forthe doing of any act or the taking of any proceedings in aCourt or office and the last day of the limited time is a dayon which the Court or office is closed, then the act or proceedingshall be considered as done or taken at the time if it is doneor taken on the next day thereafter on which the Court oroffice is open.”
On the other hand section 8(3) provides that
“where a limited time not exceeding six days from the date ofhappening of any event is appointed or allowed by any writtenlaw for the doing of any act or taking of any proceeding in aCourt or office, every intervening Sunday or public holidayshall be excluded from the computation of such •time. ’’
Thus it is clear that “dies non” does not have, the attributes of a“Public Holiday” and cannot be equated to it. While section 8(3)prescribes that Sundays and Public Holidays should be excluded itdoes not direct from the computation of the six days. According to■section 8(1) the legal consequence in this context of a day being
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“dies non” is that if the last day on which an act is to be done orproceedings to be taken in a Court or office happens to be a “diesnon” the doing of such act or the taking of any proceeding in Courtor office, .can be performed on the next day on which the Court oroffice is open.
Counsel for the appellant referred us to Chalo Nona Vs. Weera-singhe,(3) and Jayawardane Vs. Thiruchelvam, (4), where it was heldthat according to section 2(1) of the Holidays Act No. 17 of 1965,Sunflay. was no longer a “dies non” and that Sundays thereforeshould not be excluded in computing the time within which an appealmust be filed, even though the relevant operative provisions of theCivil Procedure Code and the Criminal Procedure Code expresslyexcluded same. The reasoning of Tambiah, J., and of Samarawickrema,J., respectively was that since Sunday which was earlier a “dies non”ha<f ceased to be so by reason of the enactment of section 2(a) ofthe Holidays Act No.17 of 1965, the statutory provisions excludingSunday should no longer be construed as continuing in force. Themaxim “cessante ratione legis cessat ipsa lex” (Reason is the soulof law, and when the reason of any particular law ceases, so does.the law itself) was invoked to reach that conclusion. Counsel for theappellant relied on that reasoning in support of his submission thatSaturdays being “dies non” should be regarded as public holidaysfor the purpose of computing the appealable time. With all respectto Tambiah, J., and Samarawkkreme J., I cannot persuade myselfto agree with their reasoning. In my view the maxim “cessanteratione legis cessat ipsa lex” does not operate to repeal a statutoryprovision on the ground that changed circumstances have nullifiedthe reason for that statutory rule. The maxim appropriately appliesto rules of law embodied in precedents or custom which have losttheir persuasive force by reason of changed conditions or perceptions.The maxim is not a licence to the Court when performing within itslimited perspective, its constitutional role of interpreting enacted lawto disregard a statutory provision even though the reason for theoriginal enactment had changed or ceased to exist. It would belegislation pure and simple were the Court to treat such provisionas inoperative or abrogated on that ground. The legislature andlegislature alone is competent to effect any repeal expressly orimpliedly of any enacted law. The existence of anomalies does notentitle the Court to read words into a statute or to imply a repeal.The Court is bound to administer statute law so long as it standsunreplealed and is in operation. Unless the two statutes covering the
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same subject-matter are so plainly repugnant to each other that effectcannot be given to both at the same time, a repeal will not be implied.
The task of this Court is to construe the plain language of thestatute. Section 756(4) of the Civil Procedure Code has’ provided forthe exclusion of Sundays and public holidays only. This Court canonly speculate on the rational – basis for the exclusion of' these twoclasses of days, namely, that they are “dies non”. But, Pajrliamenthas not, for some reason, chosen to exclude all “dies non’.’ in-thecomputation of ..the time allowed for preferring the application forleave, tp.,appeal. . When the meaning of . what the legal draftsman, hasstated is clear, the Court cannot, by. proeess of interpretation -enlargeor erode its ambit on the ground of apparent anomaly, imperfectionor omission.
In my judgment the case of E>harmadasa vs. Kumarasinghe (2yv/ksnot correctly decided, and should not be followed; the view of Ratwatte,J., expressed in Muttusamy vs. Leathen Tea Estates Association Ltd.(1) on the question in issue represents the correct view.
I affirm the judgment of the Court of Appeal and dismiss theAppeal with costs.
RATWATTE, J. – I agree.
SOZA, J. – I agree.
Appeal dismissed.
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