035-NLR-NLR-V-39-PATHMANATHAN-v.-THE-IMPERIAL-BANK-OF-INDIA.pdf
Pathmanathan v. The Imperial Bank of India.
ioa
1937Present: Poyser S.P.J. and Koch J.
PATHMANATHAN v. THE IMPERIAL, BANK OF INDIA.
136—D. C. Colombo, 46,921.
Privy Council—Application for leave to appeal—Computation of time—Exclusive of Supreme Court vocation—Notification of day of applicationunnecessary—Ordinance No. 31 of 1909, schedule I., Rule 2.
In computing the period of thirty days, within which an applicationfor leave to appeal should be made under Rule 2 of Schedule I. of theAppeals (Privy Council) Ordinance, the days included in a vacation ofthe Supreme Court should not be reckoned.
The applicant is not bound to give the respondent notice of the dayon which the application would be made.
Wijesekere v. Corea (33 N. L. R. 349) not followed.
T
HIS was an application for conditional leave to appeal to the PrivyCouncil.
Applicant, K. Pathmanathan, appears in person.
Weerasooria, for respondent.
39/12
» no in s. re. s. ess.
Cur. adv. vult.
104
POYSER SPJ.—Pat hmanathan v. The Imperial Bank of India.
March 12, 1937. Poyser S.P.J.—
Two points were taken by Mr. Weerasooria on this application.The first point taken was that the notice* of this application which wasgiven to the respondent although admittedly given within a period offourteen days, did not intimate the day on which such leave would beapplied for. The material rule is as follows:—(2) “Application to theCourt for leave to appeal shall be iriade by petition within thirty daysfrom the date of the judgment to be appealed from and the applicantshall, within fourteen days from thd date of such judgment, give theopposite party notice of such intended application”. In support of thatargument the case of Wijesekera v. Corea1 was cited. In that case thefollowing occurs in the head note—“ Where a person applies for condi-tional leave to appeal to the Privy Council the notice served on therespondent must contain an intimation of the day on which such leavewill be applied for ”.
On looking at the judgment of Drieberg J. it appears that he wasdoubtful if a notice at all was served. The petitioner apparently statedhe had sent a telegram to the respondent and produced a receipt for atelegram which contained no mention of the person to whom it wasdirected. The Judge does however in the course of his judgment state“ The form of notice adopted in practice include an intimation of theday on which the petitioner will move in the Supreme Court and this isabsolutely necessary in order that the respondent may be present orarrange for his representation on the day stated or any other day towhich the hearing is adjourned. A mere notice by a petitioner that he isappealing against the order is, in my opinion, not sufficient
With the greatest respect I do not think the rule in question requiresthat the notice must contain an intimation of the day on which theapplication will be made and it should, be added that this decision beingthe decision of one Judge is not binding on us.
In my opinion the applicant had substantially complied with theprovisions of this rule in his notice of December 12, 1936, addressed tothe respondent. Apart from the fact that the rule does not specificallystate that the day shall be named upon which the application will bemade, in practice it would be impracticable to name any such day.The day on which the application will be heard would be decided by theRegistrar in accordance with the usual practice. Further in myexperience the practice in this Court has been for the applicant to applyin the first place “ ex parte ” for a, notice of his application to be servedon the respondent, and that would appear to be the most convenientpractice.
* Notice referred to.
To,
The Imperial Bank of India, Colombo. .
' Take notice that I shall apply to the Supreme Court of the Island of Ceylonwithin Thirty days of the date of the judgment of the Supreme Court in the abovecase for leave to appeal to the Privy Council from the said judgment of the SupremeCourt.
Colombo, 12th day of December, 1936.
Sgd. K. Pathmanathan,
Plaintiff-Appellant.
Ammai v. Ibrahim.
105
For these reasons I do not think this application should be rejectedon this ground.
A further point was taken on behalf of the respondent that theapplicant did not make his petition to the Supreme Court within a periodof thirty days from the date; of the judgment. The judgment waspronounced on November 30, 1936, and the petition to the SupremeCourt was filed on January 13, 1937. ■
There is no provision.in the Rules- set out in the Schedule to OrdinanceNo. 31 of 1909 in regard to whether Sundays, public holidays, or Courtvacations are to be included in the periods of thirty or fourteen daysset out in Rule 2 or the one month set out in Rule 3 (a) nor are theprovisions of the Civil Procedure Code in regard to the exclusion ofSundays and public holidays in the computation of time applicable toappeals to the Privy Council.
There is, however, a section in the Supreme Court (Vacation)Ordinance (No. 1 of 1906), viz., section 8, which does deal with thequestion of vacations in regard to the computation of time. Thissection is as. follows : — (8) “ Where by any Ordinance or rule regulatingcivil procedure or by any special order of the Court any limited time notexceeding one month is appointed or allowed for the doing of any actor the taking of any proceedings in the Supreme Court, no days includedin a vacation shall be reckoned in the computation of such time unlessthe Court otherwise directs ”.
In my opinion, in the absence of any specific provision in the rulesregulating appeals to the Privy Council this section can be invoked inregard to the question as to whether the applicant’s petition to theSupreme Court was in time, and if that is so, this application was in timefor during the period December 1, 1936, to January 13, 1937, there is theChristmas Vacation of twenty-one days.
For the above reasons leave to appeal to the Privy Council will be
granted subject, to the usual conditions.
Koch J.—I entirely agree.
Application allowed.