Sri Lanka Law Reports
(1978-79) 2 S.LR
Ranmany and others
COURT OF APPEAL
ABDUL CADER. J., AND RODRIGO, J.
C.A. (S.C.) 804/75 (F)—D.C. JAFFNA l/ 3686.
DECEMBER 18, 1978.
Civil Procedure Code, section 29—Notice ordered to be served onappellant—Notice served on his Attomey-at-Law—Whether su:Jia;.entnotice on appellant.
The Supreme Court (as formerly constituted) made order that a certainsurn of money be deposited by the appellant within six weeks. TheRegistrar af the Court issued notice both on the Appellant and on hisAttornev-at-Law but only the notice on the Attorney-at-Law wasserved. The order to deposit the said sum was not complied with and
Rasiah v. Ranmany (Abdul Cader, J.)
the appeal was accordingly abated. Tn making an application to havethe Appeal reinstated it was submitted on behalf of the Appellant thatnotice should have been served on the appellant.
That in terms of section 29 of the Civil Procedure Code a notice servedon the Attorney-at-Law for the appellant was sufficient notice to theappellant and accordingly the appeal was rightly abated.
APPLICATION for reinstatement of an Appeal.
P.Kangeyan, for the petitioner.
C. Ranganathan, Q.C., with S. Mahenthiran, for the plaintiffs-respondents.
Cur. adv. vult.
January 2, 1979.
ABDUL CADEB, J.
On 1.12.77 the Supreme Court made order that the appellant benoticed to deposit a sum of Rs. 90 within 6 weeks. The Registrarissued notice not only on the appellant, but also on his At'torney-at-I.aw, Mr. Visuvalingam, on 13.12.77. The Registrar submitteda minute to the Supreme Court on 28th March, 1978, which readsas follows:
“ This order was communicated to the appellant with copyto his Attomey-at-Law by registered post on 14.12.77. Theletter sent to the appellant has been returned undelivered.The copy of the letter sent to the appellant however appearsto have been received by him.”
There appears to be a mistake in this report. The last sentenceshould have read:
“The copy of the letter sent to the Attomey-at-Lawhowever appears to have been received by him; ”
because the earlier part of this report states that the copy wassent to the Attorney-at-Law and because the letter sent to theappellant had been returned undelivered and is yet in the docket.Therefore, the true position would have been that the letter sentto the appellant had not been received by the appellant, but theletter sent to the Attorney-at-Law appeared to have beendelivered to him.
Since the fees were not deposited, on 11.4.78 Court made orderthat the appeal be abated. On 27th October, 1978, the appellantfiled papers in this Court and moved that the appeal be reinstated.
It is this matter of reinstatement that was argued before us inrespect of which this order is made.
Sri Lanka Law Reports
(1978-79) 2 S.L.R.
Counsel for the appellant submitted that the Supreme Courtmade order that notice should be sent to the appellant only. Thenotice sent to the appellant had not been served on him and,therefore, when the appellant had no knowledge of thisrequirement, the appeal had been abated. He urged, therefore,that the appellant should be given an opportunity to deposit feesand the appeal should be reinstated.
In respect of the notice that had been sent to the Attorney-at-Law, he filed an affidavit from the Attomey-at-Law that he didnot receive the copy of the notice that is alleged to have beensent to him. He submitted, therefore, the presumption thatwould arise, when a registered article is not returned, to theeffect that it had been delivered to the addressee, has been rebut-ted by the affidavit of the addressee that he had not received it.Therefore, there had been no notice on the Attorney, too.
He then drew our attention to section 29 of Civil ProcedureCode. Section 29 reads as follows : —
“ Any process served on the proctor of any party or leftat the office or ordinary residence of such proctor, relativeto an action or appeal, except where the same is for thepersonal appearance of the party, shall be presumed to beduly communicated and made known to the party whom theproctor represents; and, unless the court otherwise directs,shall be as effectual for all purposes in relation to the actionor appeal as if the same had been given to, or served on, theparty in person.”
He pointed to the words “ unless the court otherwise directs ”and submitted that service on the Attorney-at-Law would beeffectual as if the same had been served on the appellant onlywhere the Court had directed service on the Attorney, but inthis case, the Supreme Court had directed that notice was to issueon the appellant only and therefore service should have beeneffected on the appellant in compliance with the order of Courtbefore abatement. We are unable to agree with thisinterpretation of section 29. The Court did not direct any serviceotherwise when the Court made order “ serve notice on theappellant.” The Court made the usual order of issue of noticeand did not exercise its powers of directing service otherwise interms of section 29.
Counsel for the respondent also drew our attention to the factthat it is in respect of personal appearances of the party that thisexemption applies. We think that the appellant cannot avoid the
Rasiah v. Ranmany (Abdul Cader, J.)
consequence of section 29 of the Civil Procedure Code if thenotice was served on the Attorney-at-Law.
The question now arises whether, in fact, notice had beenserved on the Attorney-at-Law. As stated earlier, there is anaffidavit filed by the Attorney-at-Law that he did not receive thecopy of notice that was sent to him. As against this affidavit,there is an affidavit filed by the 3rd plaintiff that on makinginquiries from the Post Master, Jaffna, he was informed that theregistered postal article bearing No. 1497 of 17.8.1977 and No. 0565of 14.12.77 were delivered to the Attorney-at-Law. Annexed tohis affidavit, he has filed an official communication received byhim from the Post Master, Jaffna. The communication is dated2.12.78 under reference JA/10183/78 and reads as follows:—
“Registered article 0565 of 14.12.77. Dear Sir, with regardto the inquiry on the above, I have the honour to inform (sic)that the article in question was duly taken delivery of on
I have checked with the office and the officer has reported to methat the letter was sent to the notary under number 0565 of
Therefore, the Post Master’s report would indicate thatthe copy of the notice that was issued under registered coverbearing this number has been served on the Attomey-at-Law.Since the appellant failed to comply with the requirement ofthis Court within the stipulated period, we hold that the appealwas rightly abated. I
I have so far not referred to another item of evidence that isavailable against the appellant which, however, was not raisedbefore us, but of which there is evidence to be obtained from thematerial in the record. The 3rd plaintiff in his affidavit hasreferred to postal article 1497 dated 17.8.77—vide above.According to the minute of this office, the registered articlebearing this number was sent under registered cover on 17.8.77and this letter has not been returned to this office, leadingthereby to the presumption that it had been delivered. Accordingto the docket, the letter was issued to the defendant accordingto the J.E. of 11.8.77. Because there was no response from theappellant it was put up for order of Court but the Court madea further order on 1.12.77 and it was in respect of this latterorder the argument took place before us. It would, therefore,appear that the appellant has not only been noticed on 14.12.77which was only served on the Attomey-at-Law, but also that hewas noticed on a prior occasion personally and which notice can
(1978-79) 2 S.L.R.
Sri Lanka Law Reports
be presumed to have been received by him because it was notreturned to Court as happened in respect of the notice issued onhim in terms of the order of 1.12.77.
Counsel for the appellant attempted to produce a letter fromthe Bank of Ceylon to the effect that Rs. 50 had been depositedimmediately after this appeal was lodged, but Mr. Ranganathanobjected to it saying there is nothing on record to show that anapplication was made for a requisition to deposit money in thebank; nor is the receipt issued to the appellant or the duplicatesent by the Bank to Court produced.
We hold that there is no proof that any sum was deposited.However, even if the sum of Rs. 50 was deposited, there was yeta balance of Rs. 40 due in respect of which the appellant haddefaulted.
Counsel for the respondent raised several further objections.He submitted that Mr. Kangeyan, the present Attorney-at-Law,had filed his proxy along with the petition in this Court whilethe proxy of Mr. Visvalingam, the previous Attorney, wassubsisting in the record. Mr. Kangeyan pointed to the fact thathe had made an application in the District Court and for thatpurpose, he had submitted his proxy along with the revocationof proxy of Mr Visuvalingam and, although Court had made noexpress order revoking the proxy granted to Mr. Visvalingam,he was permitted to make a certain application and thatapplication was entertained although refused by Court and itv/as thereafter that he filed an application in this Court along withhis proxy. We are satisfied that no lapse on this account can beattributed to the appellant.
Mr. Ranganathan raised a further objection based on theConstitution. He referred to section 169 (3) and (5) of theConstitution and submitted that this appeal having been abatedby the Supreme Court, this Court has no right to restore theappeal. Counsel for the appellant submitted that this submissionwould involve an interpretation of the Constitution which shouldbe done by the Supreme Court. Mr. Ranganathan’s submissioncan await a decision in some other proceeding as it is notnecessary for us to decide this question for the purpose of thiscase. Mr. Ranganathan also pointed out that the order abatingthe appeal has passed the seal of Court and it is now too late torestore this appeal. These various submissions, though placed
Podisingho v. Chandradasa
on record, are not really essential for the reason that we haveheld that the appeal was rightly abated on the ground that theappellant after due notice failed to deposit the brief fees withinthe due time.
This application is, therefore dismissed with costs.
RODRIGO, J.—I agree.
Rasiah v. Ranmany and others