K. D. DE SILVA, J.-—Perera v. KarunanayaJce
1960 Present :K. D. de Silva, J., and H. N. G. Fernando, J.PERERA, Appellant, and KARLHST AN AY ARE, Respondent
S. C. 27—D. C. Malara, 1489JM
Liquid claim—Action by sumwar*/ procedure—Summon.? on defendant—Time withinwhich defendant must obtain leave to appear and defend—.Computation—CivilProcedure Code, ss. 703-700, Schedule I, Form Ho. 19.
Where, in an action by summary procedure on a liquid, claim, summons underChapter o3 of the Civil Procedure Code was ordered by Court to be issueddirecting the “ defendant to appear within seven days of service of summons ”—
Held, that in computing the period of seven days a Sunday could not be ,excluded.
Held farther, that when the Judge had directed the defendant to appear“ within ” seven days the Secretary of the Court, when issuing the summons inForm No. 19 of Schedule X of the Civil Procedure Code, had no authority tocomputo the period of seven days to include the day of service. When an acthas to ho done “ within ” a specified period from a cortain date, in computingthat period the day of that date must ho oxoludod.
A_PPEAL from a judgment of the District Court, Matara.
Robert Silva, for the plaintiff-appellant.
N. E. Weerasooria, Q.G., with W. D. Gunasekera, for the defendant-respondent.
Cur. adv. vult.
October 21, I960. K. D. de Silva, J.—
The plaintiff instituted this action on August 24, 1959, under Chapter53 of the Civil Procedure Code to recover from the defendant appellanta sum of Rs. 10,000 with legal interest thereon alleged 1o be due on a
KL. D. DE SILVA, J.—Perera, v. Karunanayakc
cheque. On the same day the Court accepted the plaint and orderedthe issue of summons under Chapter 53 C. P. C. directing the ** defendantto appear within seven days of service of summons ”, Accordinglysummons was issued on the defendant directing him to “ obtain leavefrom the Court within 7 days from the service hereof inclusive, of the. dayof such service to appear and defend. …This summons was
in form No. 19 in the First Schedule. It was served on the defendant onSeptember 4, 1959. On September 11, 1959, Messrs. Weeratunga andKanin ad asa, Proctors, filed proxy from the defendant together with hisaffidavit and moved for permission to file answer unconditionally. Inthis affidavit the defendant averred that he gave this cheque to oneKL. G. J. Weerasingha the employer of the plaintiff as security for a moneylending transaction which originated in June 1958 and that he had paidinterest to the said Weerasingha at the rate of Rs. 400 a month from thatdate, on the sum of Rs.. 10,000 borrowed.. His position was that he gave acheque for Rs. 10,000 at the time of the original transaction and thischeque was renewed every month on the payment of interest. He alsoaverred that this matter was pending before the Debt Conciliation Ordi-nance No. 39 of 1941.
When the application of the defendant for leave to appear and defendcame up for consideration the Counsel for the plaintiff objected to suchleave being granted on the ground that the application was made out oftime. It was contended on behalf of the plaintiff that the last day thedefendant was entitled to make the application was 10th September, 1959.The learned District Judge however held that as the period of seven daysincluded a Sunday that day should be excluded and therefore the defen-dant was within time. I am unable to agree with the reasons given bythe learned Judge for excluding the Sunday from this period of seven days.
The defendant is, however, entitled to succeed on another ground.As I observed earlier the order made by-the Judge when he accepted theplaint was that the defendant should “ appear within seven days of serviceof summons ”. In that order he did not say that the period of sevendays was to include the day of service. The Judge is entitled to fixthe period within which the defendant was to appear. In this instancehe directed the defendant to appear “ within ” seven days. The summonsin Form 19 was signed by the Secretary of the Court. When the Judgehad directed the defendant to appear “ within” seven days the Secretaryhad no authority to compute the period of seven days to include th ’ dayof service. When an act has to be done “ w thin ” a specified periodfrom a certain date in computing that period the day of that date must beexcluded. It was so held in Kailayar v. Kandiah 2. That being so, thedefendant in making this application on 11th September was not out oftime. I would therefore dismiss the appeal with costs.
H. N. G. Fernando, J.—I agree.
i (1957) 59 N. L. R. 117.
PERERA, Appellant, and KARUNANAYAKE, Respondent