047-NLR-NLR-V-31-SILVA-v.-GOONESEKERE.pdf
( 184 )
1929.
Present : Fisher C.J. and Drieberg J.
SILVA v. GOONESEKERE.169—D. C. Galle, 2,446.
Appeal—Failure to sign security bond—Notice of appeal not given—Irregularity—Civil Procedure Code, s. 756—Ordinance No. 42 of1921, s. 2.
Where a party appellanthasfailed to givenoticea! appeal
or to sign the security bond,—
Held, that the appellantwasnot entitled, toreliefunder the
amendment to section 766 of the Civil Procedure Code introducedby Ordinance No. 42 of 1821.
The amending Ordinancehasno applicationwherethere has
been a substantial non-compliance with the provisions of thesection.
A
PPEAL from a judgment of the District Judge of Galle.
A preliminary objection was taken to the appeal on the
ground of non-compliance with the provisions of section 756 of theCivil Procedure Code.
Croon, da Brera (with E. C. E. de Soysa), for plaintiff, respondent.—The appeal is not properly constituted. The security bond has beenexecuted before notice of security was served on all parties. .Noticehas been given out of time. There is no order of Court acceptingsecurity. The bond has not been signed by all the appellants.Notice of appeal has not been given at all. Counsel cited Kanganyv. Ramasatny Rajah1, de Silva v. Madduma Appu2, Andrewv. Abdul Latiff 3, and Kandappen v. Elliot. *
N. E. Weerasooria (with Rajapakse ), for defendants, appellants.—The appellants had issued the notice of security within time. Itis not necessary that the notice should be served within time. An
1 (1918) 21 N. L. R. 106.* (1919) 6 C. W. R. 31.
* (1917) 4 G. W. R. 210.* (1892) 2 C. L. R. 17.
( 185 )
order had been made by the District Judge to forward the recordto the Supreme Court. The issuing of the notice of appeal wastherefore rendered impossible- The cases cited were decided beforethe amendment to the Civil Procedure Code was made in 1921.The Supreme Court has now the power to grant relief in a case likethis. Counsel cited Mendis- v. Jinadasa1.
Croos da Brera, in reply contended that no sufficient groundhad been put forward for the granting of relief. The delay hasnot been explained.
November 25, 1929. Fisher C.J.—
In this case a preliminary objection was taken to the hearingof the appeal on the ground of non-compliance by the appellantswith the provisions of section 756 of the Civil Procedure Code. Itwas admitted by the appellants that notice of appeal hadnot been given to any of the parties and that the security bondhad not been signed by any of the appellants. The appellantsapplied for relief under the last paragraph of section 756 which wasadded to that section by section 2 of Ordinance No. 42 of 1921.The jurisdiction which is vested in this Court by section 765 toadmit and entertain a petition of appeal notwithstanding that theprovisions of sections 754 and 756 had not been observed seems tocover to some extent at all events the same ground as that coveredby the jurisdiction conferred by the additional paragraph tosection 756. The verbiage of the latter, in my opinion, shows thatit is applicable in cases where, as in this case, the appeal is actuallybefore the Court and a preliminary objection is taken by therespondent. I do not think that '‘his additional paragraph can beheld to apply to cases where there has been a substantial non-compliance with the provisions of the section. In my opinionit applies to more or less trivial omissions where it may be said thatalthough the strict letter of the law haB not been complied with theparty seeking relief has been reasonably prompt and exact in takingthe necessary steps. In this case the petition of appeal was filedon November 14, 1928, and the record remained in the DistrictCourt until May 27, 1929. Notwithstanding the lapse of thatperiod the appellant failed to comply with the obligations imposedupon him by section 756. In my opinion this is not a case in whichwe should grant relief under the last paragraph of that section.The appeal must be dismissed with costs.
Dkieberg J.—
I agree. The scope of the amendment of section "756 of the CivilProcedure Code by section 2 of Ordinance No. 42 of 1921 is oftendiscussed. If not for this amendment every default in complying
1 (1922) 24 N. L. R. 188.
1999.
Silva v.Goonetekere
( 186 )
1929,
Drieberq J.
Silva v.Goonesekere
with- the requirements of section 756 would place an appellantunder the necessity of applying to this Court under section, 765to admit and entertain his petition notwithstanding lapse of tipne.
In what cases, then, can relief be given under section'. 2 ofOrdinance No. 42 of 1921 ? Assistance on this point is afforded bythe statement of objects and reasons for the amendment publishedin the Government Gazette of November 16, 1921:
“ It has been found lately that a number of appeals have had tobe dismissed owing to failure of strict compliance with theprovisions of section 756 of the Civil' Procedure Code.This non-compliance has in certain cases been in respectof matters not of material importance; and it is thoughtwell to give the Supreme Court power to waive such failuresto comply in cases where the respondent is not materiallyaffected by such waiver. ”
On March 26, 1929, services of notice of security having been servedon all the respondents, the order was made that the record be for-warded. This was a mistake, but the appellants have not beenprejudiced by it, and, in any case, it. was their duty to have pointedout to the Court that the record should not be sent up as notice ofappeal had not issued. The record, in fact, was not sent up untilMay 27, 1929; it was kept back as the appellants had not- submittedthe originals and translations of some of their exhibits. Thoughthe duty of serving the notice of appeal rests on the Court, copiesof the petition of appeal for this purpose had to be supplied by theappellants. This they have not done, and the failure to serve thisnotice on the respondents is due to their default.
This is an important step, for it is from this notice thata respondent knows that the appeal has been perfected and thatit will be forwarded. It is a requirement of “.material importance,and the complete failure to comply with it. in this case is not onewhich this Court should excuse.
Appeal dismissed.
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