Sita Rajasingham v. Maureen Seneviratne and Another
MAUREEN SENEVIRATNE AND ANOTHER
C. COLOMBO 4907/21JULY 17, 1995.
Civil Procedure Code – Civil Procedure Sections 86 and 755 (Before the 1977Amendment) – Stamp Duty Act. No. 43 of 1982 (as amended by Acts. No., 71 of1988, No. 27 of 1991 and No. 29 of 1993) – Sections 2(b), 33(1) and 71 – StampOrdinance No. 22 of 1909 sections 3 and 33 – Stamp Ordinance No. 3 of 1890section 34.
A petition was filed in the office of the District Court by the defendant-appellant interms of section 86 of the CPC to purge her default of appearance within 14 daysof service of the decree. The Learned judge sitting in chambers rejected thepetition as it bore no stamps. Proper stamp duty was later tendered but after thelapse of the 14 day period. After inquiry at which the parties were heard theLearned judge held that the petition was rightly rejected and that the stamp dutycannot be supplied after 14 days from the service of the decree.
That a right of a party to maintain a proceeding cannot be denied to that party onthe ground of insufficiency of stamping of a document unless the law expressly orimpliedly provided for such denial.
APPEAL from an order of the Court of Appeal.
A. K. Premadasa P.C. with Manohara de Silva for 2nd appellant.
P A. D. Samarasekera P.C. with G. L. Geethananda for respondent.
P. G. Dep SSC for A.G. as amicus.
Cases referred to:
Salgado v. Peiris (1909) 12 NLR 379.
Sandanam v. Jamaldeen (1968) 71 NLR 145.
Sathasivan v. Cadiravel Chetti (1919) 21 NLR 93.
British Ceylon Corporation v. The United Board (1934) 36 NLR 225.
Sri Lanka Law Reports
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Usoofv. Nadarajah Chettiyar (1957) 58 NLR 435.
Thenuwara v. Thenuwara (I960) 62 NLR 501.
Jayawickrama v. Amarasooriya (1914) 17 NLR 174.
Per Dheeraratne, J.
"In the absence of any statutory provision in relation to the petitions filed undersection 86 of the CPC, requiring that stamps should be supplied at the time of itspresentation; or that such a petition filed without stamps is valueless andtherefore should be rejected; or that such a petition which is unstamped shouldnot be acted upon, I am inclined to the view that there was no legal justificationfor the Learned District Judge to make order rejecting the petition filed on25.2.1991. I hold that the petition was wrongly rejected and that the propercourse should have been for the court to call for the deficiency of stamps to besupplied by the party who tendered that document”.
Cur. adv. vult.
Judgment was entered by the District Court for the plaintiff-respondent against the 2nd defendant-appellant (appellant) ex parteon account of the latter's default of appearance. After the decree wasserved on the appellant on 13.2.91. within 14 days of such service,on 25.2.91 petition and affidavit in terms of section 86 of the CPCwere filed in the office of the District Court on behalf of the appellant,to get the ex parte decree vacated. Petition and affidavit wereaccompanied by a new proxy but none of those documents werestamped. On the same day viz. 25.2.91 the Learned District Judgesitting in chambers made order (JE. 63) refusing to accept the proxy,petition and affidavit as they did not bear stamps. It is obvious thatthe attention of the appellant or her attorney was not drawn to thejudge’s order of rejection and that they became aware of that orderseveral days later. On 20.3.91 appellant’s attorney tendered a receiptfor the payment of a sum of Rs. 15 as stamp duty chargeable onthose rejected documents and moved court to accept them;circumstances under which stamps were not promptly tendered tocourt were also explained. After inquiry at which both counsel for theappellant and the plaintiff – respondent were heard, the LearnedDistrict Judge refused to vacate the order made on 25.2.91. TheLearned District Judge took the view that it was lawful to supply at alater date the stamp duty for the proxy, but the stamp duty on the
SC Sita Rajasingham v. Maureen Seneviratne and Another (Dheeraratne, J.)71
petition cannot be supplied after the lapse of 14 days from service ofthe decree. He made no reference in his order to the allegeddeficiency of stamps in the affidavit; but there is no doubt that interms of section 5(1) of the stamp Duty Act. No. 43 of 1982 theaffidavit is exempted from stamp duty. Regarding the petition, theLearned District Judge thought it was rightly rejected because thecourt was bound by the full bench decision in the case of Salgado v.Peiris11 >.
Salgado v. Peiris (supra) is a decision on non-stamping a petitionof appeal to the Supreme Court drawn and signed by a pleader interms of section 755 of the CPC (before the amendment 20 of 1977)at the time of its presentation. The section by implication required aproper stamp to be produced at the time of presentation of a writtenpetition of appeal, because the latter part of that section whichprovided an alternative mode of preferring an appeal by anappellant, namely, viva voce informing his wish to appeal to thesecretary or chief clerk of the court, specifically required theproduction at that time “a proper stamp required for a petition ofappeal”. Salgado’s case is thus an undoubted authority for theproposition as the law stood before the CPC amendment of 1977,that a petition of appeal to the Supreme Court should be rejected if itis not sufficiently stamped on the day of its presentation. See theobservation of H. N. G. Fernando CJ. in Sandanam v. Jamaldeen(2).
The same principle established in Salgado's case was adopted inthe line of cases dealing with the application of schedule B in part iiof the repealed Stamp Ordinance No. 22 of 1909, which expresslyprovided for an appellant to deliver to the secretary of the DistrictCourt together with his petition of appeal proper stamps for thedecree or order of the Supreme Court and certificate in appeal. Seefor example Sathasivan v. Cadiravel Chetti(3).
Considerations applicable to the present case are totally different.As far as section 86 of the CPC is concerned there is no express orimplied requirement that the petition should be duly stamped at thetime of its presentation. The requirement for stamping a petition filedin terms of section 86 (3) of the CPC comes from the provisions of theStamp Duty Act, No. 43 of 1982. Section 2(b) of the Act provides thatevery “document” presented or filed in civil proceedings instituted in
Sri Lanka Law Reports
 2 Sri L.R.
the District Court is chargeable with stamp duty. A new feature of theStamp Duty Act (as amended by Acts No. 71 of 1988, 27 of 1991 and29 of 1993) absent in its legislative predecessors, is the presence ofa separate definition of a “document” in section 71 as opposed to an“instrument”. A document is defined as follows:
In relation to legal proceedings in any court includes anappointment of an attorney, plaint, answer, replication or otherpleadings, petition, application, affidavit, appointment,summons, judgment, decree, order or of any description,award, writ, warrant, inventory, account, mandate, bond orrecognizance, citation, application other than motion,interrogatories, answer to interrogatories, injunction or notice.
Section 2(b) of the Act does not require that a “document" shouldbe stamped at the time of its presentation.
The Court of Appeal found an added reason to justify the orderrejecting the petition. That is that the petition which is unstampedcannot be “acted upon” in view of section 33(1) of the Stamp DutyAct. This position is untenable because section 33(1) dealsexclusively with “instruments”. The word “instrument” is defined insection 71 of the Act as follows:-
Instrument includes every document by which any right orliability is, or purports to be, created, transferred, limited,extended, extinguished or recorded.
It is clear that a petition filed in terms of section 86 of the CPC,being a “document” in relation to legal proceedings and not being an“instrument”, is not affected by the provisions of section 33(1) of theStamp Duty Act. [cf. observations of Macdonell CJ. in British CeylonCorporation v. The United Board w at 246 on sections 3 and 33 of theStamp Ordinance No. 22 of 1909 and observations of Garvin SPJ. at257 on section 36 of the Stamp Ordinance No 3 of 1890, in bothstatutes of which there was no definition of a “document” but only ofan “instrument"]
A problem analogous to the present one arose with regard todeficiency in stamping petitions for granting conditional leave toappeal to the Privy Council under the Privy Council Appeals
SC Sita Rajasingham v. Maureen Seneviratne and Another (Dheeraratne, J.)73
Ordinance No. 31 of 1909 (now repealed by Act, No. 44 of 1979).There too no statutory requirement provided for stamping petitions atthe time of presentation. Probably the last and yet the most importantdecision in that regard is the case of Sandanam v. Jamaldeen(supra). Fernando CJ. in that case declined to follow the judgmentsin Usoof v. Nadarajah Chettiyar (5> and Thenuwara v. Thenuwara(6) forthe reason that considerations justifying rejection of appeals to theSupreme Court on account of deficiency of stamps were applied inthose two cases without appreciating the difference in statutoryrequirements. In Sandanam’s case the Supreme Court ordered thedeficiency of stamps to be supplied although the appealable periodhad lapsed. The principle established in Sandanam’s case (followingJayawickrama v. Amarasooriya<7) was that a right of a party tomaintain a proceeding cannot be denied to that party on the groundof insufficient stamping of a document unless the law expressly orimpliedly provided for such denial.
In the absence of any statutory provision in relation to a petitionfiled under section 86 of the CPC, requiring that stamps should besupplied at the time of its presentation; or that such a petition filedwithout stamps is valueless and therefore should be rejected; or thatsuch a petition which is unstamped should not be acted upon, I aminclined to the view that there was no legal justification for theLearned District Judge to make order rejecting the petition filed on25.2.1991. I hold that the petition was wrongly rejected and that theproper course should have been for the Court to call for thedeficiency of stamps to be supplied by the party who tendered thatdocument.
For the reasons given above the appeal is allowed and the orderof the Learned District Judge made on 8.10.1991 and the judgmentof the Court of Appeal affirming that order are set aside. The DistrictCourt is directed to accept appropriate stamp duty tendered (or to betendered) in respect of the petition filed on 25.2.91 and proceed withthe inquiry as contemplated in section 86(2). Parties will bear theirown costs of proceedings of this court and of the Court of Appeal.
BANDARANAYAKE, J. -1 agree.
PERERA, J. -1 agreeAppeal allowed.