044-SLLR-SLLR-2004-V-2-SIVAPADASUNDARAM-v.-PATHMANANDAN-AND-OTHERS.pdf
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Sri Lanka Law Reports
[2004] 2 Sri L.R
SIVAPADASUNDARAMv
PATHMANADAN AND OTHERSCOURT OF APPEALBALAPATABENDI, J.
IMAM, J.
A. No. 373/89 (F)
C. CHILAW NO. 20658/LMAY 25, 2004
Civil Procedure Code – as amended by Act 79 of 1988 – Section 755(3)- Filing of Appeal within 60 days – Interpretation – 60th day falling on anon-working day – Can the petition be filed on the next working day?Interpretation Ordinance – Section 8(1), section 14(a).
CA
Sivapadasunderam v Pathmanadan and others
(Balapatabendi, J.)
411
Held:
i) If the 60th day for filing of the Petition of Appeal falls on a day on whichthe Court or office of the Court is closed, the filing of the Petition ofAppeal on the next day thereafter on which the Court or office is open,should be considered as it had been filed “Within time” – in view ofsection 8(1) Interpretation Ordinance.
Per Balapatabendi, J.
“It behoves this Court to be constructive and purposive in theInterpretation of statute with the object of doing justice within the law, toavoid an undesirable and unjust result without defeating the intention ofthe legislature.”
APPEAL from the Judgment of the District Court of Chilaw.
Preliminary objection that the appeal is out of time.
Cases referred to:
Gani Arachchige Sarath Perera v Mirihana Arachchige Karunawathie -C.A. 536/94, 537/94, D.C. Colombo No. 14714/P.
Silva v Sankaran and others – (not followed) 2002 2 Sri LR 209
Wickremanayake v de Silva – 1978/79 – 2 Sri LR 69 (not followed).
K.A. Wilbert Fernando v P.K. Chamal Kulasuriya and others C.A. 1274/01(F) – CAM 14.5.2004 – Followed.
Wickremaratne v Samarawickrama – 1995 – 2 Sri LR 212.
Selenchina v Mohamed Marikkar and others – 2000 3 Sri LR 102.
Nirmala de Melv Seneviratne and others -1982 2 Sri LR 569 (followed)
A.Ft. Sunrendran with K.V.S. Ganesharajan for appellant.
M.A. Sumanthiran with A. Premalingam for respondents
Cur. adv. vult.
July 5, 2004
JAGATH BALAPATABENDI, J.When this matter was taken up for hearing counsel for thedefendant-respondents raised a preliminary objection that the petitionof Appeal is out of time, as it had been tendered to court after 60 daysfrom the date of pronouncement of the Judgment. Counsel for bothparties agreed to resolve the matter, by way of Written submissions.
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On page 56 of the brief it appears that the Judgment dated13.12.1989 had been pronounced on the same day 13.12.1989,(as per J/E 89). Thereafter, due notice of appeal had been givenwithin the stipulated time, and the Petition of Appeal had beentendered to Court on 12.2.1990. viz- when correctly computed itwas tendered to Court on the 61st day from the date ofpronouncement of the Judgment, (as admitted by the defendants-respondents in their written submissions).
The provisions of section 755(3) of the Civil Procedure Codeas amended by Act No. 79 of 1988 states as follows:- “Everyappellant shall within sixty days from the date of the judgment ordecree appealed against, present to the original court, a petition ofappeal setting out the circumstances out of which the appeal arisesand the grounds of objection to the Judgment or decree appealedagainst, and containing the particulars required by section 758,which shall be signed by the appellant or his registered attorney.Such petition of appeal shall be exempt from stamp duty:
Provided that, if such petition is not presented to the originalcourt within sixty days from the date of the judgment or decreeappealed against, the Court shall refuse to receive the appeal.”
Also, the provisions of section 14(a) of the InterpretationOrdinance which states that – (a) for the purpose of excluding thefirst in a series of days or any period of time, it shall be deemed tohave been and to be sufficient to use the word “from”.
Our Courts in many instances have considered the provisionsof both sections mentioned above, and interpreted the words “fromthe date of Judgment’ contained in section 755(3) of the CivilProcedure Code. “When computing 60 days from the date of theJudgment, the date of pronouncement of the Judgment should beexcluded, (on the contrary the plaintiff-appellant in his writtensubmission has included the date of the pronouncement of theJudgment while computing 60 days, and stated that the petition ofappeal had been filed on the 62nd day, – which is incorrect.)
It is obviously clear that the petition of appeal had been filed inCourt on 12.2.1990, the 61st day from the date of the Judgment(3.12.1989) (as admitted by the defendants-respondents in theirwritten submissions). It appears that the 60th day (11.2.1990) was
CASivapadasunderam v Pathmanadan and others413
(Balapatabendi, J.)
a Sunday, wherein the office of the Court was closed and on thenext working day viz-Monday (12.2.1990) on the 61st day, thePetition of Appeal had been tendered to Court.
At this point I would like to refer to the applicability of theprovisions of section 8(1) of the Interpretation Ordinance, whichreads as follows: 8 (1) where a limited time from any date or fromthe happening of any event is appointed or allowed by any writtenlaw for the doing of any act or the taking of any proceeding in aCourt or office, and the last day of the limited time is a day on whichthe Court or office is closed, then the act or proceeding shall beconsidered as done or taken in due time, if it is done or taken onthe next day thereafter on which the Court or office is open.”
In terms of the above mentioned section, the only conclusionthat could be arrived at is that if the 60th day for filing of the petitionof appeal falls on a day on which the Court or office of the Court isclosed, the filing of the Petition of Appeal on the next day thereafteron which the Court or office is open, should be considered as it hadbeen filed ‘within time’.
In Gani Arachchige Sarath Perera v Mirihana ArachchigeKarunawathie®, the decisions of this Court in cases Silva vSankaran and others®, and Wickremenayake v de Silva®, werefollowed to wit: “the words “within 60 days" mentioned in section755(3) of the Civil Procedure Code restrain the appellant from filingthe Petition of Appeal exceeding the time frame of 60 days given inthe statue and that the appellant should not wait until the 60th daywhich fell on a Sunday, and complaint later that he should beallowed to file the Petition of Appeal on the next day thereafter.”
Even though, Somawansa, J. agreed with the decision ofDissanayake, J. in Gani Arachchige Sarath Perera v MirihanaArachchige Karunawathie (supra) he took a completely differentview in the case of K.A. Wilbert Fernando vPK. Chamal Kulasuriyaand others wherein I agreed with the reasoning given bySomawansa, J. to wit: “the provisions of the section 755(3) shouldbe read along with the provisions of section 8(1) of theInterpretation Ordinance, thus, if the 60th day falls on a Sundaywhen the Court and its office is closed, the Petition of Appeal filedon the next working day thereafter (Monday) is “within time” asstipulated in the section 755(3) of the Civil Procedure Code.”
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It is needless for me to repeat the reasoning given bySomawansa, J. in arriving at the decision in (K.A. Wilbert Fernandov P.K. Chamal Kulasuriya and others) (supra) wherein I haveagreed. It is relevant to note that the facts in the above mentionedcase are almost similar to that of the instant case.
In Maxwell on Interpretation of status (Twelfth edition) at page309, states ‘where a statutory period runs’ from ‘a named date ‘to’another, or the statue prescribed some period of days or weeks ormonths or years within which some act has be done, although thecomputation of the period must in every case depend on theintention of Parliament (legislature) as gathered from the statute,generally the first day of the period will be excluded from reckoning,and consequently the 1st day will be included." Further in page 312states “The word ‘daily’ includes Sunday – and for proceduralpurposes Sundays are included in computation of time, exceptwhen the period in question is seven days or less in which case theSunday is excluded. Acts which are Judicial cannot be done on aSunday, unless there is express statutory provision to thecontrary.”
In the case of Wickremaratne v Samarawickrama® whereS.N.Silva, J. (as he then was) observed that “In statutoryinterpretation there is a presumption that the legislature did notintend what is inconvenient or unreasonable. The rule is that theconstruction must be agreeable to justice and reasons should begiven.”
In the case of Selenchina v Mohamed Marikkar and others!® -Sarath N. Silva, C.J. observed that – “in this case the Notice ofAppeal was presented on 20.10.1986. If that day is excluded, theperiod of 14 days excluding the date of judgment pronounced (i.e.30.09.1986) and intervening Sundays and Public Holidays wouldend on 17.10.1986 which was a Public Holiday. The next day onwhich the notice should have been presented was the 18th being aSaturday, on which the office of the Court was closed, the next daythe 19th was Sunday, which too had to be excluded in terms of thesection. In the circumstances, the notice filed on 20.10.1986 waswithin a period of 14 days as provided for in section 754(4) of theCivil Procedure Code.”
CASivapadasunderam v Pathmanadan and others£15
(Balapatabendi, J.)
It is pertinent to note the finding of the above mentioned case,that despite the fact that the Saturday was to be included, incomputing the period of 14 days, it was excluded as the office ofthe Court was closed.
Sharvananda, J. on Nirmala de Melv Seneviratne & othersWconsidered the applicability of section 8(1) of the InterpretationOrdinance in giving an interpretation to Rule 35 of the SupremeCourt Rules.
'Thus, it is my opinion that in terms of the section 755(3) of theCivil Procedure Code the appellant is entitled and empowered inlaw, to file the Petition of Appeal even on the 60th day from the dateof the pronouncement of the Judgment and if the 60th day fails ona Sunday the compliance is impossible as the Court and office isclosed, as such the Petition of Appeal filed on the next daythereafter (Monday) is within time, in view of the provision of thesection 8(1) of the Interpretation Ordinance”.
“It behoves this Court to be constructive and purposive in theInterpretation of statute with the object of doing justice within thelaw, to avoid an undesirable and unjust result without defeating theintention of the legislature."
In the circumstances, the objections raised by the counsel forthe defendants-respondents is rejected.
The Registrar of this Court is directed to list the main appealfor hearing in due course.
IMAM, J. • I agree.
Preliminary objection overruled.