P. A. COORAY , Appellant, and H. J. G. FERNANDO , Respondent

095-NLR-NLR-V-54-P.-A.-COORAY-Appellant-and-H.-J.-G.-FERNANDO-Respondent.pdf

400
Cooray v. Fernando
-1953Present : Swan J.P. A. COORAY, Applicant, and H. J. G. FERNANDO, RespondentElection Petition No. 6 of 1952, Kalutara
Flection Petition—Presentation of petition—Failure to serve notice of it within prescribed
timeFatal defect—Modes of service of notice—Ceylon (Parliamentary Elections)
Order in Council, 1946, Schedule 3, Rides 10, 15, 86 (2).
Where notice of the presentation of an election petition was sent by registeredpost to the successful candidate but the registered packets were not actuallydelivered to him until after the time limit of ten days prescribed by Rule 15 ofSchedule 3 of the Parliamentary Elections Order in Council had elapsed—Held, that when an election petition is presented the petitioner should servenotice of it on the respondent within the prescribed time. Failure to do so is afatal defect. The fact that the respondent had knowledge of the presentation ofthe petition does not amount to notice and does not dispense with therequirement as to service of notice.
As to the mode of service, leaving copies of the notice and petition with theRegistrar is not sufficient. Rule 10 of Schedule 3 is not applicable to the service ofnotice of presentation of the petition. Further, the modes of service mentioned inRule 15 are not exhaustive. For instance, even where under Rule 10 an agenthas been appointed or an address given the petitioner would not be precludedfrom effecting service on the respondent personally by delivering the notice andcopy to >dTTi by his own hand or that of an agent. He could also use the medium ofthe post but in that event the date of delivery would be the crucial factor.
SWAN J.—Goora'j v. Fernando
401
This was a motion filed, by the successful candidate praying that nofarther proceedings be had on an election petition presented against him.
H. V. Perera, Q.C., with H. W. Jayeicardene and M. Bafeek, for theapplicant.
A. Kannangara, with A. S. Vanigasooriyar, for the respondent,.
Cur. adv. wilt.
February IS. 1953. Swan J.—■
The applicant is the successful candidate in the Kalutara Election.The respondent alleges that he was a voter. The other candidates wereUpali Batuwantudawe, A. P. de Zoysa and Cholmondeley Goonewardene.The election was held on 24.5.52 and the applicant was declared dulyelected ; and the result of the election was published in the GovernmentGazette on 28.5.52.
On 16.6.52 the respondent filed an election petition praying for adeclaration that the applicant was not duly elected or returned, and thatthe election was void on the grounds and for the reasons set out in thepetition. Security was deposited on 18.6.52 and the receipt filed with theRegistrar the following day. On 20.6.52 the respondent applied to thisCourt to have notice of the presentation of the petition served on the appli-cant through the Fiscal. The motion was duly allowed, and on the same daythe Registrar forwarded the notice to the Deputy Fiscal, Kalutara, forservice and immediate report. On 26.6.52 the Deputy Fiscal, Kalutara,reported that his officer made attempts on 21st, 23rd and 25th June to servethe notice on the applicant but that he was not to be found. It may be men-tioned here that the address of the applicant as given in the notice en-trusted to the Fiscal for service is “ Galle Road, Katukurunda, Kalutara ”which is the same address given by the applicant himself in the presentapplication.
On 20.6.52 the respondent had also left with the Registrar a copy of thenotice of the presentation of the petition. I refer to this because it wascontended before my brother Pulle, and again before me at this inquiry,that this was sufficient service on the applicant of the notice of"presentation. I shall deal with this point later.
On 20.6.52 the respondent also posted under two separate coverstwo copies of the petition he had filed and two copies of notice of thepresentation of the petition. They were sent by registered post and theregistered letter receipts have been filed. In the ordinary course of eventsthese packets should have been received by the applicant on the followingday. In order to avoid any argument based on a presumption underSection 112 of the Evidence Ordinance I wanted evidence to satisfyme as to the exact date or dates on which these registered packets were
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SWAIN" J.—{3oorqy v. Fernando
delivered to the applicant because there was no suggestion that they werereturned to the sender undelivered. I was not unmindful of the fact thatit was for the respondent, if he relied on service by means of theseregistered letters, to prove, that they were delivered within the prescribed•tune ; but Counsel for the applicant was willing to undertake the taskof proving when they were actually received. I have deliberately avoidedusing the word burden because it is clear that the burden was on the re-spondent. The evidence led satisfies me^beyond any manner of doubt thatthese registered packets were delivered to the applicant on 30.6.52, i.e.,■after the prescribed time.
It was suggested that the applicant was avoiding taking delivery of theseregistered packets. There is no evidence to support the suggestion. Butassuming that he was, I would say that he was under no obligation, legalor even moral, to stay at home to receive them. A man may know he hasbeen sued for a debt which he owes ; he may have received a letter ofdemand ; his creditor may have told him personally that plaint has beenfiled ; he may walk into the office of the Court where the action has beeninstituted, see the plaint for himself and a copy of the summons stuck onthe notice board and yet he is under no obligation to appear in Court and■answer to the plaint until he is served with summons.
The respondent also alleges that news of the presentation of thepetition with particulars of the charges appeared in the late edition ofthe Times of Ceylon of 16.6.52 and in the Dinamina, the Ceylon DailyNews and the Ceylon Observer of the following day. I fail to see how thiscan help the respondent.
The respondent also alleges that the applicant and his proctor were•seen at the Registry on 20.6.52 and must have heard of the presentation•of the petition against him. But even if the applicant was aware of thisfact it does not amount to, and cannot dispense with, service of notice onhim, if service of notice is required hy law.
The respondent also alleges that he caused a notice to be published in theCeylon Daily News on 24.6.52 giving notice to the applicant of the presen-tation of the petition on 16.6.52, and stating that he had left two copiesof the petition with the Registrar. But as the law does not recognize apublication of this sort as the equivalent of service I would only say that-the insertion of this notice was a waste of money ; and even if the applicanthad read that notice (of which fact there is no proof) I would say thatknowledge of the presentation of the petition does not amount to noticeand could not dispense with the requirement as to service of notice.
I shall, at this stage, refer to what 1 consider the rule that provides forservice of notice. It is Rule 15 in Schedule 3 of the Ceylon (ParliamentaryElections) Order in Council 1946 and reads as follows :—
“ Notice of the presentation of a petition, accompanied by a copythereof, shall within ten days of the presentation of the petition beserved by the petitioner on the respondent. Such service may be effectedeither hy delivering the notice and copy aforesaid to the agent appoin-ted by the respondent under rule 10 or by posting the same in a regis-tered letter to the address given under rule 10 at such time, that in the
SWAN J.—Cooray v. Fernando
403
ordinary course of post, the letter would, be delivered within the timeabove mentioned, or if no agent has been appointed, nor such addressgiven, by a notice published in the Government Gazette stating that suchpetition has been presented, and that a copy of the same may be ob-tained by the respondent on application at the office of the Registrar. ”
Before proceeding any further I shall quote Rule 10 as well, becauseit has been contended that Rule 10 is also applicable.
“ Any person returned as a Member may at any time, after he is re-turned, send or leave at the office of the Registrar a writing, signed byhim on his behalf, appointing a person entitled to practise as a proctorof the Supreme Court to act as his agent in case there should be apetition against him, or stating that he intends to act for himself, andin either case giving an address within the city of Colombo at whichnotices addressed to him may be left, and if no such writing be left oraddress given, all notices and proceedings may be given or served byleaving the same at the office of the Registrar. Every such writingshall be stamped with the duty payable thereon under the law for thetime being in force
At this juncture I should mention that on 3.7.52 the respondent filedsl petition supported by affidavit with a motion praying that “ orders bemade and directions given to enable further proceedings to be taken onthe said petition The petition and affidavit filed with the application setout in detail the various steps taken by the respondent to have noticeof the presentation of the petition served on the present applicant.Mr. A. B. Perera appeared on 16.7.52 before my brother Pulle in supportof that application. From the record of those proceedings I find that mybrother pointedly asked Mr. Perera whether he had complied with Rule15 but that Mr. Perera avoided a direct answer and stated that noticehad been duly given or served by reason of the fact that the necessarydocuments were left at the office of the Registrar in terms of Rule 10. Headded that Rule 15 merely indicated some of the ways of service, and that•Rule 15 must be read in conjunction with Rule 10. My learned brothertold Mr. Perera that he found some difficulty with regard to -the inter-pretation which Mr. Perera sought to place on Rules 10 and 15. Mr. Pererathen asked for further time to consider the question and the matter endedthere. No further steps were taken on that application.
On 9.10.52 I was appointed Election Judge to hear and dispose ofthis Election Petition, and some days later I fixed the trial for 15.12.52.On 21.11.52 the applicant filed petition and affidavit and moved that nofurther proceedings be had on the Election Petition. It is with this appli-cation that we are now concerned. The application is based on the groundthat no due and proper notice of the presentation of the petition wasserved on the applicant as required by law ; and the applicant prays thatno further proceedings be had on the Election Petition and that it bedismissed.
Three matters arise for consideration :—
{1) Was service of notice of the presentation of the petition necessary?
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SWAN J.—Cooray v. Fernando
If so has such, notice been duly served?
If the first of these questions is answered in the affirmative and the
second in the negative must the Election Petition be dismissedor can this Court grant relief to the respondent and permit himto proceed with the trial ?
Rule 15 provides the answer to the first question. It says “ notice of thepresentation of a petition …. shall he served by the petitioneron the respondent. ” Mr. Kannangara does not suggest that service isunnecessary but contends that there has been sufficient compliance withthe requirement regarding service of notice.
As to the mode of service I shall forthwith dispose of the contentionthat Rule 10 applies and that leaving a copy of the notice and a copy of thepetition with the Registrar is sufficient. To my mind it is clear that Rule10 was not meant to apply to, and does not in fact apply to the service ofnotice of presentation of the petition.
The English rule corresponding to our Rule 15 is Rule 14. It reads asfollows :—-
“ Where the respondent has named an agent or given an address, theservice of an election petition may be by delivery of it to the agent, orby posting it in a registered letter to the address given at such timethat, in the ordinary course of post, it would be delivered within theprescribed time.
In other cases the service must be personal on the respondent, unlessa judge, on an application made to him not later than five days afterthe petition is presented on affidavit showing what has been done, shallbe satisfied that all reasonable effort has been made to effect personalservice and cause the matter to come to the knowledge of the respondent,including when practicable, service upon an agent for election expenses.rin which case the judge may order that what has been done shall beconsidered sufficient service, subject to such conditions as he maythink reasonable. ”
Rule 15 of the English Petition Rules provides :—
“ In case of evasion of service the sticking up a notice in the officeof the master of the petition having been presented, stating the peti-tioner, the prayer, and the nature of the proposed security shall bedeemed equivalent to personal service if so ordered by a judge. ”The following differences between our rules and the English rules will beobserved. The English rule does not prescribe a time limit for service—our rule does, namely, ten days. Where there is proof of evasion of servicewe have no provision for substituted service such as £’ sticking up ” anotice in the office of the Registrar.
Rule 15 provides for service by (1) delivery of the notice and copy to theagent of the successful candidate where an agent has been appointed underRule 10 or (2) by posting the same in a registered letter to the addressgiven under Rule 10 at such time that, in the ordinary course of post, theletter would be delivered within the prescribed time ; and (3) where nc
SWAN J.—Gooray v. Fernando
4=05
agent has been appointed nor such address given, by a notice published inthe Gazette stating the fact of presentation and that a copy of the petitioncould be obtained at the Registry.
Undoubtedly the sentence begins with the words “ such service may beeffected The use of the word may only means that the modes of servicethereafter set out are not exhaustive. For instance, even where underRule 10 an agent has been appointed or an address given the petitionerwould not be precluded from effecting service on the respondent person-ally by delivering the notice and copy to him by his own hand or thatof an agent. He could also use the medium of the post, but in that eventthe date of delivery would be the crucial factor.
It is clear that in this case the respondent to the present applicationhas not served or caused to be served the notice and copy by deliveringthem or having them delivered into the hands of the applicant within theprescribed time. So that the only other matter to consider is whether thenotice published by the respondent in the Government Gazette complieswith the requirements of Rule 15. This notice appeared in the Gazetteof 27.6.52, i.e., beyond the period of ten days. Mr. Kannangara says itwas handed to the Government Printer on 25.6.52. But the date ofpublication is the required date, not the date on which it was handed infor publication. In this connection I was told that the respondent hadattempted to publish the notice the previous week but went to the Govern-ment Printer too late for the notice to appear in the Gazette of 20.6.52.The Gazette is published every Friday and I was informed that to get in anotice for a particular Friday it had to be handed in by the previous Wed-nesday. But I am certain that if the respondent had applied to this Courthe could have had an order on the Government Printer to publish thenotice in a Gazette Extraordinary.
The respondent has, in my opinion, failed to comply with the require-ments of Rule 15 as to service of notice of the presentation of the petition.The only point I have further to consider is whether the petition shouldbe dismissed. Mr. Kannangara maintains that it should not, becausethe objection taken by the applicant is a formal objection and that Rule 60of the English Rules would apply. It will be noted that under Section 86 (2)of the Ceylon (Parliamentary Elections) Order in Council 1946 provision ismade as follows :—
“ If any matter of procedure or practice on an election petitionshall arise which is not provided for by this Order or by such rules or byany Act of Parliament, the procedure or practice followed in Englandon the same matter shall, so far as it is not inconsistent with thisOrder or any such rules or Act of Parliament and is suitable forapplication to the Island, be followed and shall have effect. ”
Rule 60 of the English Petition Rules states “ no proceedings under theParliamentary Elections Act, 1868 shall be defeated by any formalobjection ”.
But is a plea of failure to serve notice of presentation of a petition aformal objection? In this connection Mir, Kannangara referred me to
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the case of Young and another v. Figgins 1 where it was held that notechnical or formal objections will be allowed to prevail. In that case asummons called.upon the petitioners to show cause why the petition shouldnot be struck off the file on the ground that the petitioners had complainedof the conduct of the returning officer but had omitted to give bim noticeof the petition or the recognizance. It was held that this was no groundfor striking the petition off the file.
In my opnion that case can be distinguished. Under English Lawwhere the petitioner complains of the conduct of the returning officer thelatter is deemed to be a respondent. Counsel for the sitting member con-tended that that being so, the returning officer was entitled to notice.Counsel for the petitioners was not even called upon. Martin B. dismissingthe summons remarked that even if Counsel for the sitting member wereright in his arguments he, i.e., Baron Martin, would not allow such aformal objection to defeat the petition.
There is local authority for the proposition that failure to give noticeof the presentation of a petition is a fatal defect. In Aron v. Senanayake 2Akbar S.P.J. so held. In this case Young and anotfier v. Figgins 1 wasrelied on by the petitioner. Counsel for the respondent relied on the easeof Williams v. Mayor of Tenby 3. Akbar S.P.J. said that he preferred tofollow the judgment in this case.
In Aron v. Senanayake 2 the Court was construing the meaning andimplications of Rule 18 of the Election (State Council) Petition Rules.That rule corresponds to our present Rule 15, the only difference beingthat no longer is there any need to give notice of the nature of theproposed security because all security is now provided by a depositof money.
In the Avissazvella Election Petition * "where, owing to some mistakein the office of the proctor representing the petitioner, a copy of the wrongpetition was served on the respondent, Akbar J. made order dismissing thepetition inasmuch as there had been no compliance with the provisionsof Rule 18.
In Piyadasa v. Hewauntarane 5 Maartensz S.P.J. held that failure toserve notice of the nature of the proposed security as required by Rule 18was a fatal defect. The learned Judge cited with approval the findingof Akbar S.P.J. in Aron v. Senanayake 2 that failure to give notice ofthe presentation of the petition and of the nature of the security in themanner required by Rule 18 was a fatal defect for which the petition wasliable to be dismissed.
I agree .with the view taken by Akbar S.P.J. and Maartensz S.P.J.I hold that the respondent to this application has not complied with therequirements of Rule 15. I dismiss the Election Petition with costs.
Motion allowed and Election Petition dismissed.
(1869) 19 L. T. R. i99.3 L. R. 5 C. P. D. 135.
(1936) 38 N. L. R. 133.4 (1936) 16 C. L. Rec. 2.
(1936) 40 N. L. R. 421.