Penn v. Penn (Stue, J.)
Perera and Another
COURT OF APPEAL.
SOZA, J. AND VICTOR PERERA. J.
C. A. APPLICATION No- 471/80-D. C. COLOMBO 1325/L.DECEMBER t2.1980.
Civil Procedure Code, sections 754 (2), 755 (31,—Non compliance—Notice of appeal andpetition of appeal filed out of time—Mandatory provisions—Interpretation Ordinance(Cap. 21 sections 8 (3), 14(a)—Relief under section 759(21.
The defendant-petitioner in this application sought to revise the order of the learnedDistrict Judge rejecting his petition of appeal on two grounds, namely (a) the petition ofappeal was out of time and (b) it had been perfected by an Attorney who was not the
(1 i The provisions of subjection 4 of section 754 and of subjection 3 of section 755 ofthe Civil Procedure Code mandatory and the petitioner hod tiled both his notice ofappeal and petition of appeal out of time. Accordingly the learned District Judge hascorrectly rejected the petition of appeal.
(?) Under the provisions of section 755 13) the petition of appeal shall be signed by theappoHarit or his registered Attorney and so long as thorn tc a proxy on record lr <« on>ythe registered Attorney who has the authority to sign the petition of appeal.
Case referred to
(1) Wickremasinghe v. de Silva, (1978-79) 2 Sri L.R. 65.
APPLICATION to revise an order of the District Court, Colombo.
Nimal Senanayake, with Miss S. M. Senaratna, for the defendant-petitioner.£. O. Wickremanayake, for the plaintiff-respondent.
Cur. adv. vult.
This was a suit which the plaintiff-respondent had institutedagainst the defendant-petitioner for a declaration of a servitudeof cartway over the defendant's land described in schedule B ofthe plaint and certain consequential relief. After trial the learnedDistrict Judge had delivered order on 16th May, 1979, granting
Sri Lanka Law Reports
(1981) 2 S.LR.
the relief prayed for in the plaint. On 6th June, 1979, thedefendant-petitioner filed notice of appeal. Thereafter he filed hispetition of appeal on 30th July, 1979. The learned District Judgeaccepted the petition and made order that the record beforwarded to the Court of Appeal. On 16.8.1979 the respondentsfiled motion giving reasons why the petition of appeal should nothave been accepted. The learned District Judge inquired into thismatter after notice to the present petitioner and on 21.2.1980made order rejecting the petition of appeal on two grounds:
The petition of appeal was out of time;
It had been perfected by an Attorney who was not theregistered Attorney.
It is this order that the petitioner seeks to canvass before us.
Under section 754 (4) of the Civil Procedure Code notice ofappeal should be presented to the Court of first instance withina period of 14 days from the date when the decree or final orderappealed against was pronounced, exclusive of the day of thatdate itself and of the day when the notice is presented and allSundays and public holidays. The subsection further iays it downthat if this condition is not fulfilled "the court shail refuse toreceive" the notice of appeal. The last day for presenting thenotice of appeal in the instant case was 4th June. 1979. Hence thenotice of appeal was out of time and the Court was bound torefuse to receive the notice of appeal.
Subsection (3) of section 755 further stipulates that theappellant shall within 60 days of the judgment or decree appealedagainst present to the original Court a petition of appeal settingout the circumstances out of which the appeal arises and thegrounds of objection to the judgment or decree appealed against.There is no provision for the District Judge to extend the time forfiling the petition. Subsection (4) of the same section states thatupon the petition of appeal being filed the Court shall forward itto the Supreme Court. Not only the notice of appeal, but even thepetition of appeal also was tiled out of time. As, unlike in section754(4), there is no express provision to exclude Sundays andPublic holidays, these must be included in computing the sixtydays. Only the date on which the judgment was pronounced canbe excluded—see section 8(3) and 14(a) of the InterpretationOrdinance.
Peiera v. Perera (Soza, J.)
The question is whether the provisions of subsection (4) ofsection 754 and of subsection (3) of section 755 of the CivilProcedure Code are directory or mandatory. As I pointed out inmy judgment in the case of Wickremasinghe v. Magilin Nona deSilva (1), subsection (3) of section 755 confers private rightsand therefore is a mandatory provision. Bindra in his workInterpretation of Statutes, 6th ed. (1975) states as follows at page599:
“Statutes conferring private rights are in general construedas being imperative in character and those creating publicduties are construed as directory."
In my judgment in the case under reference I referred to a numberof authorities and held that the provisions of section 754(4) inregard to notice of appeal are imperative and mandatory. I cameto a similar conclusion in regard to section 755 (3) and stated asfollows:
“Subsection (3) of section 755 of the Civil Procedure Codewhich requires the appellant to present to the original Court
a petition of appeal within sixty days Is couched in imperativeterms. This is a new provision and is clearly mandatory. Thefiling of the petition of appeal is an essentia! concomitant ofthe filing of the notice of appeal. Both steps are mandatory andunpei ytive stuus ii) judging an appeal * inti! these steps ere tsksnas directed by the Civil Procedure Code the Judge cannotcomply with subsection (4) of section 755. The learned DistrictJudge was therefore right in rejecting the petition of appeal.The notice of appeal too lapses for want of compliance with thesubsequent requirements and should now be rejected."
I see no reason to differ from or modify the views which I tookin that case.
The next question is whether it is open to this Court to grantrelief under the provisions of subsection (2) of section 759.1 havediscussed this subsection also in my judgment to which I havealready referred and need only add that there are no circumstancesin the present case which would justify this Court acting underthe provisions of section 759 (2) of the Civil Procedure Code. Theplaintiff-respondents undoubtedly will be prejudiced if this appealis accepted despite the failure of the petitioner to comply with theimperative provisions governing the lodging of the petition of
Sri Lanka Law Reports
(198V 2 SLR.
appeal. There is nothing in the instant case to redeem the laches ofthe petitioner. The petition of appeal has been lodged out of timeand the learned District Judge was quite right in rejecting it. Theorders which the original Court made in regard to the notice ofappeal and the petition of appeal were per incuriam as the pro-visions of the Civil Procedure Code pertaining to these steps hadbeen ignored. The learned District Judge was therefore right inentertaining the application of 16.8.1979 made by therespondents.
The second matter that needs consideration is the fact that thepetitioner's registered Attorney had not signed the petition ofappeal. It was argued that the Attorney who signed the petitionof appeal had been acting along with the registered Attorney rightthrough the case and that he does have the capacity to sign apetition. The question is not whether the Attorney who signed thepetition of appeal has the capacity to sign it but whether he hasthe authority to sign it. it is only the registered Attorney who hasthe authority that can sign it so long as his proxy is there on therecord. The appellant himself can also sign it but no one else.Section 755 (3) states that the petition of appeal "shall be signedby the appellant or his registered attorney". So in the case beforeus there has been no compliance with an express provision ofsection 755 (3). Therefore this is another ground on which thepetition of appeal should be rejected.
The application is therefore dismissed with costs.
VICTOR PERERA, J.-l agree.