011-NLR-NLR-V-74-S.-I.-JAFFERJEE-and-others-Petitioners-and-L.-M.-PERERA-and-others-Respondent.pdf
JaJJcrjce v. Pcrcra
43
1970Present: Samerawickrarae, J., and de Kretser, J.
S. I. JAFFERJEE and others, Petitioners, and L. M. PERERAand others, Respondents
S.C. 1011GS—Application for Final Leave to Appeal to the Privy Council in
S.G. 116 {Inly.) 1061, D. O. Colombo 6252jMB
Appeals (Privy Council) Ordinance (Cap. 100)—Schedule, Pule 21—Delay oj appellantto apply lor order granting final leave—Discretion of Court to grant relief.
Rulo 21 of tho Schcdulo to the Appeals (Privy Council) Ordinance, so far os isrelevant to tho present application, is ns follows :—
“ Whoro an appollant, having obtained an ordor granting him conditionalloavo to appeal, and having compliod with tho conditions imposod on him bysuch order, fails thoroaftor to apply, within one week from the date of havingso complied, to tho court for on order granting him final leave to appeal, thecourt may, on an application in that behalf made by tho respondent or of itsown motion . . . rescind the ordor granting conditional leave to appoaland doelare the appeal to stand dismissed for non-prosecution notwithstandingtho appellant’s compliance with tho conditions imposed by such order …"
1 p. 2830.
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DE KRETSER, J.—Jajfcrjec v. Perera
Held, that Kulo 21 vests a discretion in tho court a3 to whether or not it willrescind tho leavo already granted.
j^LPPLICATION for final leavo to appeal to tho Privy Council.
JV. Jayewardene, Q.C., with S. S. Basnayake and RavindraTennekoon, for the plaintiff-petitioners.
Ranganalhan, Q.C., with N. <9. A. Goonelilleke, Rohini Breckenridgeand K. Kanagaralnam, for tho substituted defendant-respondent.
Cur. adv. vult.
October 17, 1970. de Kretser, J.—
The facts are as follows
Conditional leave to appeal to Her Majesty the Queen in Council wasgranted to the Plaintiff-Petitioners on tho 17th clay of March upon thocondition that within one month from the said date they would furnishsecurity by tho deposit of lls. 3,000 in cash for tire duo prosecution ofthe appeal and tho payment of such costs as may becomo payable.The Plaintiff-Petitioners complied with this condition on the first dayof April, 1968. Thereafter they made their application for final leaveon the 10th of April, 196S. Tho Respondents on the 30th of July, 19G8,have filed their objections to the granting of final leave to the Petitionerson the ground that tho Petitioners failed to apply for an order grantingfinal leavo within one week from the date of their having complied withthe conditions imposed on them by tho order granting conditionalleave to appeal. The Respondents pray that the court bo pleased torescind tho order granting conditional leave to appeal and to dcclarothe appeal to stand dismissed for non-prosceution. Tho relevantrule is No. 21 of the Rules which arc found in the schedule to tiiePrivy Council Appeals Ordinance, Cap. 100, Vol. IV of the LegislativeEnactments, and the relevant portion of the rule reads as follows :—
Where an appellant, having obtained an order granting himconditional leavo to appeal, and having complied with thoconditions imposed on him by such order, fails thereafter toapply, wilhiwone week from (he dale of having so complied, tothe court for an order granting him final leave to appeal, thecourt may, on an application in that behalf mado by thoRespondent or of its own motion …. rescind tho ordergranting conditional leavo to appeal and declare the appealto stand dismissed for non-prosecution notwithstanding tho• appellant’s compliance with the conditions imposed by suchorder” I
I find it impossible to agree with the submission mado by Mr. Ranga-natlian that the rule vests no discretion in tHo court for I sco no reasonwhatsoever to think that when the legislature used tho words, “ Thocourt may rescind tho order granting conditional leavo to appeal ” tho
DE ICRETSER, J.-—JaJJcrjce v. Pcrcra
45
legislature intended that " may " should be read in the context of thisrule as if it were " shall I am fortified in my opinion that Rule 21vests a discretion in the court as to whether or not it will rescind the leavealready granted when I find that in the case of Hall v. The PelmadullaValley Tea and Rubber Company 1 Garvin J. with whom Dalton J. agreedsaid as follows :—
" Counsel for tho Respondent urges that the application forconditional leave to appeal should be rescinded upon the groundthat more than one week has lapsed since the date when theapplicant complied with the conditions. It has to be noted, inthe first place, that Rvle 21 vests a discretion in the court as to■whether or not it will rescind the leave already granted. ”
I now pass on to consider the next point made by Mr. Ranganathan,namely, that assuming that Rule 21 vests a discretion in the court thofacts and circumstances in the instant case arc not such as would justifythe court j r.crcising its discretion in favour of the Plaintiff-Petitioners.
The Pr||tor for tho Plaintiff-Petitioners, Mr. V. Murugesu, has filedhis affidavit which gives the reason why the papers were not filed in timo.The relevant paragraphs of his affidavit read :—
The application for final leave was tendered by mo to this court
and filed on the 10th day of April, 19GS.
Duo to pressure of work I was unable to file the papers in Your
Lordships’ court earlier than the 10th of April, 196S.
It appears to mo that the fact that there was compliance with thoconditions on which conditional leave was obtained long before the timelimit imposed by court for such compliance was over—in fact, I find thoapplication for final leave was also within that period of time—and thofact that there has been long delay on the part of the Respondent inmoving in the matter, arc matters that outweigh the fact that the excusegiven by Petitioner’s Proctor establishes negligence which must bodeemed to bo Plaintiff’s negligence. There is also the fact that noprejudice has been shown to have been caused to the Respondent.This appears to me to be a case in which the exercising of discretion infavour of the Plaintiff-Petitioners is justified.
The objections of the Respondent are dismissed with costs and thoapplication for final lcavo granted.
Samerawickbame, J.—I agree.
Application allowed.
(1927) 29 N. L. It. 41.