PIYADASA v. HEWAVITARNE

111-NLR-NLR-V-40-PIYADASA-v.-HEWAVITARNE.pdf


Piyadasa v. Hewavitame.
421
1936Present: Maartensz S.P.J.
PIYADASA v. HEWAVITARNE.
In re Election PEnnoN filed in respect of the MataraElectoral District.
Election petition—Publication in the Gazette of notice'of presentation of peti-tion without stating the nature of the proposed security—Delivery bypetitioner’s .agent of copies of petition and recognizance to a clerk, of aperson not duly appointed as agent of respondent—Insufficiency—Election (State Council) Petition'Rules, 1931, r. 18.
The petitioner published, within ten days of the presentation of hispetition at the Registry of the Supreme Court, a notice, stating thepresentation of the petition in the Government Gazette. It did not statethe nature of .the security which the petitioner proposed to furnishthough the security was given within three days of the presentation ofthe petition by a recognizance signed by the petitioner and two sureties.The petitioner’s agent also served within the period of ten- days on theclerk of a person not duly appointed as the agent of the respondent copiesof the petition and recognizance.
Held, that the nature of the proposed security should have been setout in the notice published in the Government Gazette and that, there wasa failure to give the respondent proper notice.'
Further, that the service of copies of the petition and recognizance ona person not duly appointed as the agent of the respondent did notconstitute service of notice on the respondent.
Failure to give notice of the nature of the security in the mannerrequired by rule 18 of the Election (State Council) Petition Rules, 1931,is a fatal defect, rendering the petition liable to be dismissed.
Aron v. Senanaydke (.40 N. L. R. 257) followed.
T
HIS was an election petition in which notice of the presentation ofthe petition was served by a notice published in the Government
Gazette within ten days of the presentation of the petition. The notice
1 (1906) A. C. 43.
422
Piyadasa v. Hewavitame.
made no reference to the security or the nature of the security given bythe petitioner. The respondent moved the rejection of the petition onthe ground, among others, that the petitioner had failed to give propernotice as required by rule 18 of the Election (State Council) Rules, 1931.
R. L. Pereira, K.C. (with him H. V. Perera, M. C. Abeyewardene andA. E. R. Corea), for the respondent.—The publication in the GovernmentGazette fails to give due notice of the nature of security. The petitionerrelies on the notice served by Mr. Wijeratne on Mr. de Silva. In fact itwas served on Mr. de Silva’s clerk. The appointment of Mr. F. G. deSilva was for the purpose of accepting from the Registrar a copy of thecharges framed against the respondent. It was not a writing'as requiredby rule 10. The service of notice on Mr. de Silva was not such a serviceas would comply with the requirements of rule 18.
H. V. Perera, K.C, (continuing the argument).—Rule 18 supersedesrule 10. It is the first step in the action. Under the Civil Procedure Codewhen an action is instituted the first summons is served on the person of theother party. After that all papers may be left with the proctor.
The authority given to Mr. Wijeratne, the agent of petitioner is notstamped. It can be validly said that his appointment was bad. Henceall acts done by him are void. The notice delivered to Mr. de Silva’sclerk was signed by him. The notice with regard to the nature of theproposed security must reach the respondent or his agent. Mr. de Silvawas not the agent of the respondent as he was appointed for a specialpurpose only. Therefore service on Mr. de Silva was not service onthe respondent. Delivery under rule 18 is personal service. SeeGooneratne v. The Bank of Chettinad which was decided under theInsolvency Ordinance.
[Maartensz J.—What about the Privy Council cases ?]
The Supreme Court had held that personal service is contemplated.Where notices were served on proctors it was held that that was badservice. Each step is dependent on the previous one and if the first isbad, then the subsequent ones are bad.
Any act done under an unstamped letter of authority is bad. SeeThe Queen v. Kelk‘. The document cannot be further acted on and assuch it is bad. Hence the notice given by Mr. Wijeratne is bad. Furtherit is bad for the reason that it was not delivered to the respondent, butto Mr. de Silva who was not the agent of the respondent.
[Maartensz J.—The Registrar has entered the name of Mr. de Silvaas the agent of the respondent under .rule 11.]
He has no right to do so. If it is said that the notice was not deliveredto -Mr. de Silva, but left at the address given by him, it cannot be main-tained that that is due service, since under rule 10 the address must begiven by the respondent and not by the agent. In this case Mr. deSilVa sent a letter to the Registrar giving his address. –
[Maartensz J.—You are taking advantage of your mistakes.]
Yes. Further, the petition is not stamped and should have beenstamped. Now it is too late to rectify, it.
« (193C) 16 Ceylon Late Rec. 13..2 (1840) 12 Ad. <£• B. 559.
Piyadasa v. Hewavitarne.
423
See In the Matter of the Election Petition filed in Aspect of the DedigamaElectoral District1 which follows Williams v. Tenby *.
No affidavits had been filed to prove the sufficiency of the security.Rule 24 indicates that the burden of proof is on the petitioner.
Francis de Zoysa, K.C. (with him A. R. H. Canekeratne and E. A. P.Wijeyeratne), for petitioner.—The objection that the petition had not beenstamped is one that can go to the root of the case and it could be takenat any time, but it must be taken within reasonable time. In this casethis objection was taken after the Attorney-General had been noticed.No documents in election cases need be stamped. The authorities weresubmitted in the case In the Matter of the Election Petition filed in respectof the Point Pedro Electoral District .
These proceedings are quasi criminal. Section 34 of the StampOrdinance states the procedure with regard to criminal offences. Undersection 34 (1) it is left to the discretion of the Court.
[Maartensz J.—Whether it is criminal or civil does not matter. Ifto initiate the proceeding a stamped document is necessary it must bestamped.]
There is no provision fox' this to be stamped. A petition cannot becalled either in technical language or in common parlance an instrument.
The publication stating that a petition has been filed under rule 18 inthe Government Gazette is sufficient. It does not matter whether theappointment of Mr. Wijeratne is stamped or not. The object is merelyto give notice to the respondent.
Rule 18 can be split up into two parts. In the publication in theGovernment Gazette' the mere notice is sufficient. Further informationmust be obtained from the Registry. Since at the filing of the petitionno security need be given, the nature of the security need not be published.
The respondent had not appointed an agent nor had he given anaddress under rule 10. In the Gazette notice we stated that all theconnected papers were filed in the Registry.
[Maartensz J.—Why is it that the notice of the nature of the recog-nizance is dispensed with in the Gazette ?]
It is because the respondent did not appoint an agent. The respondentmay be put into hardship, but it is his own seeking since he did not dowhat was expected of him.
Rule 11 compels the Registrar to keep a book in which are entered thenames and addresses of the agents._
He can appoint an agent at any time. We can leave the papers withthe agent then. Rule 10 corresponds to rule 10 given in Roger’s, vol. II.,p. 510. Rule 19 had been taken over from the English rules, but thealteration in rule 18 had been neglected..
Rule 43 makes it incumbent on the agent to leave a paper stating thathe was appointed agent.
It is submitted that the notices were served on Mr. de Silva by Mr. Wije-ratne. As a fact the delivery book was signed by the clerk. The noticesneed not be served personally by the petitioner.
1 40 N. L. B. 257.2 (1879) L. B. -5 C." P. D. 135.
3 40 .V. L. R. 178.
■424MAARTENSZ J.—Piyadasa v. Hewavitame.
It is not known whether the name inserted by the Registrar as the nameof the agent cannot be taken. There is no right incumbent on thepetitioner to scrutinize the appointment.
If the respondent made a mistake in the appointment he cannot takeadvantage of it.
– Election agent and polling agents are appointed on unstamped docu-ments. The writing is necessary so that they may not deny the agency.
It is under item 35 of the Stamp Ordinance, No. 22 of 1909, that therespondent says that the authority should be stamped. It deals withpowers of attorney which is defined in section 3. It is an authority whichbinds the grantor. In special applications like mandamus, quowarranto, &c., the proxies and petitions are not stamped. RevenueStatutes must be interpreted in favour of the person always. Maxwell’sInterpretation of Statutes (7th ed.), p. 246.
H. V. Perera, K.C., in reply, quoted Fradd v. Fernando1 and AnnamalyChetty v. Thornhilla. ■
E. A. L. Wijeyewardene, S.-G.' (with him R. R. Crossette-Thambiah, C.C.)for Attorney-General.—The appointment of agent must be given inwriting under rule 9 and not orally.
Cur. adv. vult.
November 20, 1936. Maabtensz J.—
The question for decision in these proceedings is whether the petitionerhas given the respondent, notice of the nature of the proposed security.
Notice of the presentation of the petition was served by a noticepublished in the Government Gazette of April 3, 1936, within ten days ofthe presentation of the petition.
The notice is dated March 31, and is as follows : —
“ Notice is hereby given under section 18 of the rules made underArticle 83 of the Ceylon (State Council Elections) Order in Council,1931, as amended by the Ceylon (State Council Elections) amendmentOrders in Council, 1934 and 1935, that an Election Petition has beenpresented by Hewa Lunuwillage Piyadasa of Meddawatta in Matara,against the election of Raja Hewavitame. as member of the StateCouncil for the Electoral District of Matara at the election held onMarch 5, 1936. A copy of the said petition together with the connectedpapers may be obtained by the said Raja Hewavitame, the respondentto the said petition, on application to the Office of the Registrar of theSupreme Court.
H. L. Piyadasa,
Colombo, March 31, 1936.Petitioner ”.
The" notice makes no reference to the proposed security. The securitywas given on April 1, by a recognizance signed by the petitioner and twosureties.
The petitioner contends that where service of the notice prescribed byrule 18 is effected by a notice in the Government Gazette the notice needonly state that a petition has been presented and that a copy of the same
>1 (1934) 30 N. L. R. 132.* (1935) 30 N. L. R. 413.
MAARTENSZ J.—Piyadasa v. Hewavitame.
425
may be obtained by the respondent on application at the office of theRegistrar, and that the respondent must by inquiry at the office of theRegistrar ascertain for himself the nature of the proposed security.
Rule 18 enacts that “ notice of the presentation of a petition, and of thenature of the proposed security, accompanied by a copy of the petition,shall, within ten days of the presentation of the petition, be served by thepetitioner on the respondent It then goes on to prescribe the mode ofservice thus. “ Such service may be effected either by delivering thenotice and copy aforesaid to the agent of the respondent or by postingthe same in a registered letter to the address given under rule 10 . . . ..or, if no agent has been appointed, nor such address given, by a notice;published in the Government Gazette, stating that such petition has beenpresented, and that a copy of the same may be obtained by the respondent onapplication at the office of the Registrar.
I am unable to accept this contention that the words in italics dispensewith notice of the proposed security where service is effected by a noticein the Government Gazette.
Rule 18 enacts in unmistakable terms that notice of the presentationof the petition and of the proposed security must be given to the respond-ent and I cannot agree that that direction is superseded by a provisionregarding the mode cf serving the notice. The object of the wordsin italics is to' give the respondent notice that a copy of the petition maybe obtained at the office of the Registrar so that the notice in the Govern-ment Gazette might not be encumbered by the petitioner having to annexto it a copy of his petition, which must accompany the notice whenservice is effected in one of the other ways prescribed by the rule. Thatservice of the notice of the nature of the security is necessary is shown byrule 19 which enables a respondent where security is given wholly orpartially by recognizance, within five days of the service of the noticeof the petition and the nature of the security to object in writing to therecognizance on the grounds set out in the rule. It will be difficult .todetermine the day from which the five days is to be calculated if a noticeas to the nature of the security left at the office of the Registrar is to bedeemed service of the notice. Under rule 1-2 (1) security must be givenwithin three days of the presentation of the petition, but notice of thenature of the security may be given within ten days of the presentationof the petition. Thus if a notice of the presentation of the petition ispublished in the Government Gazette three days after presentation, as wasdone in this case, the respondent will have to visit the office of theRegistrar daily to see whether notice of the nature of the proposedsecurity has been given.
As a matter of fact a notice of the nature of the proposed security wasnot left at the office of the Registrar. The petitioner only sent tc theRegistrar through his agent inter alia a copy of the recognizance, to behanded to the respondent on application. Technically therefore therewas no service of the notice of the proposed security on the respondent.But it is not necessary for me to determine .whether – a formal notice shouldhave been left at the office of the Registrar in view of the opinion I havecome to that notice of the proposed security should have been set out in
426
MAARTENSZ J.—Piyadasa v. Hewavitame.
the notice published in the Government Gazette, or by another notice -published in the Government Gazette within the time prescribed by rule 18.
I accordingly uphold the objection that notice of the proposed securitywas not served on the respondent by the notice published in the Govern-ment Gazette of April 3.
The petitioner appeared to have been of the same opinion for Mr. J. G.de S. Wijeyeratne purporting to be his agent served on Mr? F. G. de Silva’sclerk on April 3, copies of the petition and recognizance. The serviceon Mr. de Silva’s clerk is not a compliance with the terms of rule 18 fortwo reasons. First, Mr. de Silva was not a duly appointed agent of therespondent. The letter relied on by the petitioner as constituting Mr. deSilva the respondent’s agent runs as follows :—
Colombo, 31st March, 1936.
The Registrar,
The Supreme Court,Colombo.
Sir,—I have the honour to request you to hand over to my agent,Mr. Fred. G. de Silva, Proctor, S. C., a copy of the charges framedagainst me in the election petition filed by one Piyadasa of Matara.
I beg to remain,
Your obedient Servant,Rajah Hewavitame.
v
The respondent in this letter refers to Mr. de Silva as his agent but theletter certainly does not amount to an appointment of Mr. de Silva asagent of the respondent.' Iiy the second place service on Mr. de Silva’s- clerk is not service upon him. If the respondent had not taken objectionto the sufficiency of the security within five days of the service of the noticeon Mr. de Silva’s clerk and later contended that he had not been dulyserved with notice of .the proposed security, I should have been boundto uphold fiis contention on the ground that notice had not been servedupon him or his agent as required by section 18. The fact that he hasentered an appearance cannot cure the defect in the service of the notice.
I need not in the these proceedings determine whether the documentappointing Mr. Wijeyeratne the petitioner’s agent is chargeable withstamp duty.
I hold that notice of the nature of the proposed security was not servedon the respondent. There remains'the question whether the petitionshould be dismissed. On this question I have the advantage of authority.In the Matter of the Election Petition filed in respect of the Dedigama Elec-toral District1 it was held by Akbar J. • (I quote the headnote):“ That
failure to give notice of the presentation of the petition and of the nature ofthe security in the manner required by rule 18 of the Election PetitionRules, 1931, is a fatal defect for which the petition is liable to be dismissed ”.
I respectfully agree with the ppinion of Akbar J. and with his reasonsfor coming to that opinion.
I accordingly dismiss this petition with costs.
Petition dismissed.
1 40 N. L. R. 257.