H. N. G. FERNANDO, C.J.—Wijesundera v. Wagisa Perera
Present: H. N. G. Fernando, C.J.
P.B. WIJESUNDERA v. WAGISA PERERA
In re Election Petition No. 2 of 1970 (Ratnapora)
Parliamentary election—Election petition—Decision in petitioner's favour —Depositof Its. fr.OOQ and costs of the petition—Persons toho are entitled to withdraw thesums—Election Petition Buies 12 and 14.
After an election petition had been decided in the petitioner’s favour, thepetitioner, as well as the Proctor who represented him before his proxy wasrevoked before trial, made applications to the Supreme Court to withdraw thedeposit of Ra. 6,000 which had been made on the petitioner's behalf as securityfor the costs of the petition, and the sum of Rs. 3,000 ordered by the ElectionJudge to be paid as costs by the respondent to the election petition. TheProcter alleged that the deposit of Rs. 6,000 was made by him and that itconsisted of money that had been given to him by a third party (the Secretaryof the United National Party); whereas the petitioner claimed that he himselfhanded the money in cash to the Proctor.
held, after consideration of Rules 12 and 14 of the Election Petition Rulesand the revocation of the proxy, that the Proctor was not entitled in law toask for the payment of the deposit to himself. There was no need to decideupon the truth of the evidence given respectively by the Proctor and thepetitioner. As for the .Rs. 3,000 ordered as costs of the petition, furtherproceedings were necessary in the present cose.
.A.PPLICATION made by the petitioner to withdraw the deposit ofRs. 5,000 which had been made on his behalf as security for the costs ofElection Petition No. 2 of 1970—Ratnapura.
D. T. P. Rajapakse, for the petitioner.
Wagisa Perera appeared in person.
T. Samson de Silva was present on notice.
Cur. adv. wit.December 21, 1971. H. N. G. Fernando, C.J.—
This Election Petition resulted in an order by which the learned ElectionJudge declared to be null and void the election as a Member of Parliamentof the respondent to the Petition. The determination of the ElectionJudge was thereafter affirmed in appeal.
Subsequently the petitioner personally made application to this Courtto withdraw the deposit of Rs. 5,000, which had been made on his behalfas security for the costs of the petition, and costs of Rs. 3,000 ordered by
H. N. G. FERNANDO, C.J.— Wijesundera v. Wagisa Perera
tho Election Judge to be paid as costs by the respondent to the petition.There was also a motion by Mr. M. Wagisa Perera, Proctor, to withdrawthe security deposit of Its. 5,000-
The two applications were set down for inquiry, at which I heardcertain submissions and recorded the evidence of the petitioner and ofMr. Perera.
It appears that the security deposit of Rs. 5,000 was actually made byMr. Perera. His evidence was that the money for the deposit was handedto him in cash by the Secretary of the United National Party ; whereasthe evidence of the petitioner was that he himself handed the money incash to Mr. Perera.
Although Mr. Perera prepared and filed the Election Petition, he tookno part at the trial; his proxy was revoked on 30th August 1970 andthereafter Proctor T. D. M. S. de Silva was appointed the agent of thepetitioner and acted as such for the purpose of the trial and appeal.
In brief, Mr. Perera’s position now is that the security deposit shouldbe returned to him in order that he may in turn re-pay it to the Secretaryof the United National Party.
It turns out that there i3 no need for me to decide upon the truth of theevidence given respectively by Mr. Perera and the petitioner, becausein my opinion Mr. Perera is not entitled in law to ask for the payment ofthe deposit to himself.
Rule 12 of the Election Petition Rules requires that security for thepayment of costs “ shall be given on behalf of the Petitioner ”. Rule 14contains provision that the deposit shall (a) “ be returned or otherwisedisposed of as justice may require by order of the Chief Justice ” and (b}that the order “ may direct payment either to the party in whose namethe same is deposited or to any person entitled to receive the same ”.
Mr. Perera submitted that these provisions contemplate that thesecurity may be given, not necessarily by the petitioner himself, but byanother person on his behalf. He contended that in the latter event thesecurity should bo returned to the other person. The language of Rule14, so he contended, was wide enough to vest in the Chief Justice adiscretion to return the deposit to the person who has actually providedthe money.
There is at first sight some substance in this contention, because of theapparent discretion vested in the Chief Justice by Rule 14. It seems tome, however, that this ignores an important aspect of the matter. Thedeposit is made under Rule 12 as “ security for the payment of all costs,,charges and expenses that may become payable by the petitioner ”. In.an appropriate case, particularly one in which the petitioner is unsuccess-ful payment will have to be made to various parties and witnesses, allof whom will be persons “ entitled to receive ’’ such payment out of thesecurity deposit. I doubt very much whether Rule 14 was intended to
Kurera v. Fernando
mean that the Court must inquire into the sources from which the moneyfor tho deposit was made available, and further to inquire into any disputeas to such sources.
It seems to me that if some person provided to a petitioner the moneyfor the deposit, the transaction would be one either of gift or of loan.If it is a gift, then there obviously cannot be a claim for the return of themoney. If it is a loan, then too the money becomes tho property of thepetitioner, subject to any liability for re-payment which may arise fromthe loan transaction ; but that liability must surely be established in aproper action and cannot appropriately bo the subject of decision underBuie 14.
Lastly, when Mr. Perera’s proxy was revoked, be ceased to be theagent for the petitioner, and he has no further status in the proceedings.Considering that Mr. Perera is no longer the agent, I hold that the peti-tioner is entitled to withdraw the security deposit of Rs. 6,000 and orderaccordingly.
As for the Rs. 3,000 ordered as costs of the petition, these costs areproperly payable to the Proctor who represented the petitioner.
This sum will be paid to him on a motion filed by him for that purpose.Post Scriptum
The Registrar has informed me that the sum ordered by the ElectionJudge to be paid as costs has not been paid into Court, and alsq.that the1st respondent has not consented to payment of these costs out of thesecurity deposited for the purpose of the appeal.
In these circumstances it will be for the Proctor, who represented thepetitioner to take appropriate steps by motion or otherwise for therecovery of the sum of Rs. 3,000.
Petitioner's application allowed.
P. B. WIJESUNDERA v. WAGISA PERERA