021-NLR-NLR-V-59-SOPAYA-PEIRIS-and-another-Appellants-and-WILSON-DE-SILVA-Respondent.pdf
BASXAYAKE, C. J.—Sopaya Peiris v. Wilson tic Silva
1957Present-. Basnayake; C.J., and L. W. de Silva, A.J. .
‘ . SOPAYA PEIRIS and another, Appellants, and WIXSON ' /
1-,DE SILVA, 'Respondent .
' S. G.137—D. G. Kalutara, 1S,S07 ■ .
Appeal—Application for typewritten copies of record—Requirement that it shout• be accompanied by the prescribed fees—Impossibility of performance—Abaternent of appeal—Procedure for complying with Civil Appellate Rules 103&Rules 2 [J) and J.'
Although Rule 2 (1) of the Civil Appellate Rules 103S requires, when aiappeal is preferred, that the application for typewritten copies of the recortshould be accompanied by the fees prosciibcd in the Schedule, tho admini-strative machinery of the Courts renders it impossible for tho appellant tccomply with it. In the circumstances tho maxim Lex non cogit ad impossi-bilia would be applicable and tho appeal will not bo deemed to have abatedunder Rule 4.•
Obiter : In the present state of tho financial regulations, the procedurewhich an appellant should follow in .complying with the Civil Appellate Rulesshould bo as follows :—'-
Where tho Court is situated in a place in which there is a Kaehchori
or Treasury Office, the prescribed fees should bo deposited in the Kaehchorior Treasury Office and tho receipt tendered along with tho application underRule 2 (1) for typewritten copies- .•:
Where the Court is situated in a place in which there is no Kaehchorior Treasury Office the applicant should, along with the application for type-written copies, tender a money order or postal order for the amount of thoprescribed, fees in favour of the Government Agent of the. revenue', district
. in which tho Court is situated. The proper officer of tho Court should thentransmit'the money order or postal order to tho nearest Kaehchori and obtaina receipt-.-~';'.y
lAPPUAL from a judgment of the District Court, Kalutara.
H. V. Pe'rera, Q.C., with Neville Wijeralne, for Respondent-Appellants.
Sir Lalita liajapakse-, Q.G., withPlaintiff Petitioner, Respondent/r .
V.' C. Gun'atilaka,'- for' Substituted-
September 30, 1937.,Z-Rasnayake,‘
,/A-preliminary'objection to the. hearing of, this appeal /ivaV .taken' by;
1 /I -1 I-l – — -1— . —— 1(*—' l I- —~1— ——7 — — 1-.. —.4-L n— – —. .–1 – i V.i-J. L'i’t/- t" 1 T
the' appUcati.o'A of Ahc^'appellants for .typewritten ^copies^of therecofcl;yas np^accompah^Qd by jthe prescribedfees,.as^required;by "R"u]e'2 (1) -ofjHdse files; '?
. ;H*-.:■ v*" *;r,:■ ■is-
g,5?3 (IP/M)..'-1-’. /- JO. fstob&S&li&j-.–1- –
Cit rfddvivu lb.
74
HASXAYAKE, C.J.—Sopuya I’crris v. Wilson dc Silva
The relevant facts shortly are as follows :The appellants preferred
their petition-of appeal on 20th .September 1055 and on the same daytendered an application for typewritten copies of the record and movedfor an order to deposit the necessary fees. On that application theDistrict Judge made order “ Issue P. I. V. for Its. 12-
On 26.9.55 the Proctors for the appellants filed Kachcheri Receiptfor Its. 12, the amount of the prescribed fees for the typewritten copies.
Learned counsel for the respondent submits that the procedure adopted63- the appellants does not satisfy the requirement of Rule 2 (1) thatthe application for typewritten copies shall be accompanied 63- thefees prescribed in the Schedule. He submits that the fees should betendered along with the application to the Judge or Commissioner ofRequests and that thereafter the prescribed fees should be paid incash to the Secretar3' or Chief Clerk, as the case may be, and a receiptobtained for the payment- in the prescribed form as required byRule 2 (3).
In view of the fact that the same objection was taken in a numberof other appeals we caused the Registrar of this Court to ascertainby circular letter from the different courts the practice in each of themin regard to applications for typewritten copies of the record. Thereplies show—
(«) that in no court docs the applicant tender the prescribed feesalong with his application to the District Judge or Commissionerof Requests,
that in no court situated in a town in which there is a Ivachcheri
or Treasury- Office does the Secretary or Chief Clerk receivepayment in casli as provided by Rule 2 (3),
that the procedure adopted in every court situated in a town in
which there is a Kachcheri or Treasury Office is for the appellantor his Proctor to apply' for a paying-in voucher and pay inthe money to the Kachcheri or Treasury Office- and obtaina receipt therefor,
(<7) that in thirteen of the courts the practice is for the appellant orhis Proctor to obtain the paying-in voucher before makingthe application for typewritten copies and tender the Kachcheri
■or Treasury receipt along with the ap2>lication for typewritten
copies,.
that in every' court the practice is to file the Kachcheri or Treasuryrceeij)t before the time limited for the completion of thesecurity for the respondent’s costs of appeal, ■
(/) that there is no uniformity of practice in regard to the tenderof the prescribed fees in the courts situated in towns in whichthere is neither a Kachcheri nor a Treasury Office. In somea money' order is tendered for the amount- of the prescribedfees along with the application, aiid the money order is sent
KASXAYAKJ3, C.J.—Sojxiya Petris v. Wilson deT&ilvn *.75
1>3- (he Secret a o' or Chief Clerk b^' post to the Kaehehcri amia receipt obtained therefor; in others cash is accepted by theChief Clerk who obtains a in on 03’ order and transmits it to- tlie Kaelichcri which sends a receipt,
{(/) that in no court is a deposit note as provided in the Pa3'mentinto Court Order 1939 issued in respect of fees for tjpewrittencopies,
(h) that in all the courts the procedure prescribed in the Pa3'menfinto Court Order 1939 which is also prescribed in the form ofFinancial Regulation 691 is regarded as applying 011I31' tosuitors’ deposits.
We also examined in this ease the Secretary of the Jvalutnra DistrictCourt, and in two of the other cases the Secretaries of the Gampahaand Galle District Courts, all of whom confirmed that the Secretaryor the Chief C'lcrk docs not receive cash in respect of fees for typewrittencopies because the Financial Regulations prohibit the acceptance ofcash by the Secretary or the Chief Clerk. Such a prohibition is notnecessaiy in the case of Judges as it lias never been the practice fornor is it the function of Judges to receive fees or pa3’incnts requiredby^ law to be paid into Court-. They also confirmed that the practiceof the Courts to which the3r have been attached in the course of theirservice is as stated above.
We are indebted to the District Judge of JMatara for his helpful andinformative reply to the Registrar’s circular. He has referred to therelevant financial regulations which we find it necessary to reproduceiia this judgment. The first of them is Financial Regulation 690 whichreads as follows :—
" 690. Bee dpt of motleys by Court Officers.
,Court officers are authorized to receive mone3’s in respect ofthe following only—.
Fines and confiscations,.
Court fees (under F. R. 1206),
Proceeds of sale of unserviceable articles and unclaimed effects;'
((I) Unclaimed property of patients dying in hospital,
(e) Productions in criminal cases,
(/) Cash securities in criminal cases,•
(g) Remittances from outside Ce3‘lon.
Receipts shall be issued on the prescribed form for all monc3'sreceived under the above paragraph. Fxcept in the ease of courtfees which arc dircctty appropriated by Court Officers, all collectionsreceived at.a Court shall be paid prompt^ into the nearest Kaehehcri.
ATo Court officer shall accci>t any 1110003- except as provided
in paragraph (i) of this regulation.'‘ ■*
The public must be informed that payment to Court officersis so' prohibited. Notices in JCnglish and in the vernaculars in FormJudicial C. F. 73 shall he posted up at prominent places in the Court- ‘ ’house and in the office of the Secretaiy in (he ease of District Courts,
' 7G‘ BASNAYAKE, C.J.—Sopaya Peiris v'. Wilson de Silva ,
or of the ChiefClerk in the case of Courts of Requests and Magistrate’sCourts, informing the public .of this restriction and .stating-howcorrect information can be obtained of the methods of makingpayment.'-
■(v) Wlien a demand is made by letter for payment of money into
. Court, a copy of the directions as to the manner-of payment (FormJudicial C. F. 74) shall be forwarded with the letter.
.(vi) If a remittance is received at a Court by post from a person
residing in Ceylon, it shall be returned to him together with a DepositNote for the amount of the remittance and a copy of the directionsindicating the correct procedure for payment “ into Court ” (FormJudicial C. F. 74).'
(vii) Under no circumstances shall a Kachchcri accept any moneycollected by Court officers in contravention of paragraph (iii) oT thisregulation.”-
The paying-in voucher procedure in regard to fees for typewrittencopies furnished under the Civil Appellate Rules is prescribed in FinancialRegulation 493 which reads :—
“ 493. Paying-in vouchers.
When a Government Department pays in money the amountmust be accompanied by a paying-in voucher on form General 118*duly filled up and signed by the Head of the Department or otherresponsible officer, and his voucher will constitute the ‘ order toreceive
Courts will use form Judicial C. F. 38, and Fiscals form Fiscal11, as paying-in vouchers for suitors’ deposits.'
The voucher will first be taken to the Second Clerk who willsec that it is correctly headed and otherwise in order, and then initialit. . The sum to be paid, with the voucher, must then be taken to theShroff who must at once enter the amount in his Cash Rook andissue a receipt forthwith on form General 172 and hand it to thepayer.”
(* Except in the case of sums paid in for drafts,— Vide I’’. R. 751).'
Fees for typewritten copies issued under the Civil Appellate Rulesare treated by.all courts as Miscellaneous Payments and are governedby Financial Regulation 693 as well. That regulation reads :
.“ 693. Miscellaneous payments. Miscellaneous payments other
. than money brought into Court, e.g., survey fees, may be signified. to Court by the production of a Kachchcri receipt, or by the receiptof the person to whom the money is payable, and shall be recordedin the journal.”-
It is clear therefore that the administrative arrangements^of the courtsand the financial regulations of Government do'not permit an appellantto tender to' the Judge or the Secretary or the Chief Clerk as the casemay be the fees for typewritten copies as required bjr Rules.2 (1) and2 (3) of the Civil Appellate Rules. The procedure now adopted in alj
UASXAYAKEj C.J.—Sopaya Petris v. Wilson de Silva
77
the courts with the exception of the Courts coming within paragraph (/)above is in conformity with the financial regulations of Governmentand is as follows :
The Proctor for the appellant or the appellant himself obtains fromthe appropriate officer of the court a paying-in voucher in the followingform :—
PAYING IN VOUCHER(No. —)
■General 118
Head of Receipt :Hate:,19—-
Sub-head :
To:1
(T-Icro state Bank or Department to which payment is irmdo.)
Please receive to the credit of the Government of Ceylon from
Rupees : ■
Cents:
being
Rs .
(Signature)
(For the use of the Shroff of the Receiving Department only.)
Received the above amount.
Date :Shroff
This form is taken by the appellant or his Proctor to the Kacheheri,or where there is no Kacheheri to the Treasury Office, and tenderedwith the cash to the officer authorised to receive payments of money.The officer accepts the money and issues a receipt called a Kacheherireceipt or where there is no Kacheheri but a Treasury Office a Treasuryreceipt. This receipt is tendered by the appellant or his Proctor tc>the Court before the expiration of the time limited for completion of thesecurity for costs of appeal.
We are of opinion that as the administrative machinery of the Courtsrenders it impossible for an appellant to comply with the Civil AppellateRules, he should not be penalised for not complying with such of therequirements of those rules as are impossible of performance. Lexnon cogit ad impossibilia aut inutilia and its variant nemo tenetur _adimpossibilia are well-established maxims and are applicable to the con-struction of statutes.1 In South Africa the maxim has been appliedeven to penal statutes.2 The rule succinctly expressed in the maximmay. be stated thus :Where a duty is cast on a person by a statute;
1 Slaxwall on Interpretation of Statutes-, 10th Edn., p. 385.■
• * Gardiner <b Lansdotvn, South African Criminal Lato and Procedure, Vol. I.,5th Edn., p. 38.-.- –'
2*—J. N. D. 699S9 (10/57)
’ 78..13ASKAYAKE, C.J.—Sopaya l’eiris v. Wilson de Silva
or statutory rule and performance of that duty is impossible or im-practicable without any fault on the part of the' person on whom theduty is cast, then the law does not penalise him for non-performanceof what is impossible of performance. The case of Paradine v. Jane 1expresses the rule thus:.-
‘ “ Where the law creates, a duty or charge, and the party is disabled
to perform it ■without any default in him, and hath no remedy over,
there the law will excuse him.”
Several instances in which performance of what is prescribed is notinsisted upon the ground of impossibility of performance will be foundin Maxwell.2-.
The South African case of R. v. Mostert 3 shows that the Courts in that■ country have applied the maxim even to a case of non-observance ofrevenue laws.'.
The right of appeal is a valuable right specially conferred by statuteand a person should not be deprived of that right merely because theadministrative machinery is such that compliance with one of therequirements of a rule of procedure for the exercise of that right isimpossible or impracticable.
The instant case is eminently one in which we should apply the maximand hold that this appeal shall not be deemed to have abated. Theappellant made application for typewritten copies within the prescribedtime and complied with all the requirements of Rule 2 bar the onlyrequirement which it was impossible for him to comply with. Forfailure to comply with such a requirement it will be wrong to penalisethe appellant.
There is another aspect of the matter which needs consideration.Rule 4 provides that an appeal shall be deemed to have abated wherethe appellant fails to make application for typewritten copies in accord-ance with the requirements of the rules. A person who finds it im-possible for no fault of his to comply with one of the requirements ofa rule cannot in our opinion be said to have failed to do so.
We cannot part from this case without stating what in our opinionshould be the procedure an appellant should follow in complying withthe Civil Appellate Rules in the present state of the financial regulations.We think that—'.
where the Court is situated in a place in which there is a Kachclieri
or Treasury Office the prescribed fees should first be deposited.in the ICachcheri or Treasury Office-and the receipt tendered
along with the application under Rule 2 (1) for typewritten•copies,'.
where the Court is situated in a place in which there is no Kachclieri
'or Treasury Office the applicant should along with the appli-
-cation for typewritten copies tender a money order.or postal
1 82 English Reports 897.*.'-..• -.
* xUasncellon Interpretation ojStatutes, 10th Edn., p. 38-5 el setj.R.v. Leicestershire11850) 16 Q. B. SS..'
flayer v. Harding, (JS6G—ISO/)/?- 2 Q. B. £}. 410.•-.
3 (1915) C. P. D. 2G6."
HASXAYAKB, C.J.—sHtadussi Unnanse v. Indajothi Unnanse
7 D
order for the amount of the prescribed fees in favour of theGovernment Agent of the revenue district in which the Courtis situated. The proj)er officer of the Court should thentransmit the money order or postal order to the nearestKachcheri and obtain a receipt.'
The procedure we have laid down above is in accordance with tho .practice that now obtains in the majority of the Courts.
The objection is overruled.-
Li. W. de Silva, A.J.—I agree.
Preliminary objection overruled.