Abubucker v. Fernando (L. H. De. Alwis, J.) . .
SRI LANKA STATE TRADING (CONSOLIDATED EXPORTS)
SUPREME COURT -SHARVANANDA, C. J..
ATUKORALE. J.. AND H. A. G. DE SILVA. J.
S. C No. 38/87.'
A. No. 189/78 (F).
C. COLOMBO. No. 75948/M.
JULY 09. 1987..
Appeal-Notice of appeal-Computation of time-Civil Procedure Code, Section754(4)-Interpretation of similar language in statutes.
Where judgment was pronounced on-31.05.1987 and notice of appeal was presentedon Monday 19.06.1987 and in the 18 days that lay between these two terminal datesthere was no public holiday but 4th and 11 th June were Sundays while 16th June was aFriday and 17th June a Saturday and a non-working day and 18th June a Sunday-
Notice of appeal was not within the time limit of fourteen days permitted by s. 754(4) ofthe Civil Procedure Code because allowing for the fact that the date of judgment and •date of filing of notice are not counted and the 2 Sundays (4th and 11 th June) had to beexclude?), there was time to file the notice of appeal only until 16th June (Friday).
236Sri Lanka Law Reports 2 Sri L.R.
Cases referred to:
Boyagoda v. Mendis-[ 1929] 30 NLR 321.
Mohideen Natchia v. Ismail.Marikar-(D.B ) S.C. minutes of 11.10.1982.
Barras v. Aberdeen Steam Trawling and Fishing Co. Ltd. -[ 1933] AC 402.
Royal Crown Derby Porcelain Co. v. Russel- 1 ALL ER 749. 755.
Haigh v. Charles W. Ireland- 1 ALL ER 1137, 1350.
R. v. Chard-[ 1983] 3 ALL ER 637. 643. 644.
APPEAL from judgment of the Court of Appeal.
H. L. de Silva, P.C.with Gomin Dayasirifor plaintiff-appellant. •
Dr. H. W. Jayewardene, Q.C., with Ifthikar Hassine and Miss T. Keenawinne for thedefendant-respondent.
Cur. adv. vult.
July 28. 1987.
SHARVANANDA, C. J.
The plaintiff-appellant filed this action against thedefendant-respondent for the recovery of a sum of Rs. 380,819.96.The defendant filed answer denying the claim of the plaintiff andprayed for the dismissal of the plaintiff's action. After trial the DistrictJudge by his judgment dated 31.05.1978 dismissed the plaintiff'saction. The plaintiff gave notice of appeal to the District Court on19.07.1978 and thereafter filed his petition of appeal.
At the hearing of the appeal before the Court of Appeal, counsel forthe Defendant raised, inter alia, the preliminary objection that thenotice of appeal was not given within the time prescribed by law andmoved to have the appeal rejected. The Court of Appeal upheld theobjection and rejected the appeal. The plaintiff-appellant has preferredthis appeal from the said order of rejection.
Section 754(3) and (4) of the present Civil Procedure Code providesas follows:
Section 754 (3) 'Every appeal to the Supreme Court from anyjudgment or decree of any original court, shall be lodged by givingnotice of appeal to the original court within such time and in theform and manner hereinafter provided."
SCSri Lanka S. T.Cv. Dharmadasa (Shan/ananda. C.J.)237
'The notice v -i ippeal shall be presented to the court of firstinstance for this purpose by the party appellant or his registeredattorney within a period of fourteen days from the date when thedecree or order appealed against was pronounced, exclusive of theday of that date itself and of the day when the petition is presentedand of Sundays and public holidays, and the court to which thenotice is so presented shall receive it and deal with it as hereinafterprovided. If such conditions are not fulfilled, the court shall refuse toreceive it."
The following dates and facts are relevant to the resolution of thequestion whether notice of appeal was given by the plaintiff to the.District Court within the time provided by law:
The judgment appealed from was pronounced on 31.05.1978;
The Notice of Appeal was presented to the District Court on19.06.1978;
‘ 4th and 11 th June 1978 were Sundays .that intervened.
There was no public holiday within the period.
16th of June was a Friday.
17th of June was a Saturday and was a non-working day in thecourts and their offices in terms of the Fuel Conservation Act No. 11of 1978 were not open.
18th of June was again a Sunday.
19th of June was a Monday, a working day.
Counsel for the plaintiff-appellant contended that filing of the noticeof appeal on 19.6.78 was within time. He submitted that section754(4) permitted fourteen clear days for a party to lodge a notice ofappeal and that the Court of Appeal had erred in the calculation of thesaid fourteen days. The computation of the relevant period of fourteendays by counsel for the appellant proceeded as follows:
The two days viz: 31.5.1978 and 19.6.1978 fthe respectivedates of judgment and of the presentation of the notice of appeal)should be excluded. Then from the eighteen days that lay betweenthese two terminal dates, the two Sundays viz: 4th and 11th June,have to be excluded, then the appellant, being entitled to fourteenclear days for the presentation of his Notice of Appeal, would have
238Sri Lanka Law Reports 2 Sri L.R.
time till the midnight of 16th June to do so and hence he could filethe notice on the following day i.e. 17th. Since 17th June was aSaturday and was a non-working day and the court-office remainedclosed, the notice could not have been presented to court on thatday nor on the following day: 18th June as it was a Sunday. In thecircumstances, in terms of the provisions of section 8(1) of. theInterpretation Ordinance, the notice could properly be filed onMonday, the 19th of June,
Counsel for the appellant submitted that this mode of calculationwas warranted by the Divisional Bench decision in Boyagoda v.Mendis, (1) which upheld the practice of the District Courts to receivepetitions of appeal and to treat them as if these had been presented inaccordance with the terms of the unamended section 754 (2) of theCivil Procedure Code which required the petitions -of appeal to bepresented, within a period of ten days from the date of the decreeappealed from when they are presented on the day after the expirationof the ten. day's or on the first available day for presenting them afterthe expiration of the ten days as if they had been presented inaccordance with the terms of the section. In that case the judgmentappealed against, was delivered on August 2, and the Petition ofAppeal was presented on August 16. August 15 was a public holidayand there were two Sundays intervening. Preliminary objection wasraised that the appeal was not filed within the stipulated period of tendays. In disposing of the preliminary objection Fisher C.J., with whosejudgment the other four Judges agreed said-
'lf we were called upon to decide this question merely from aconsideration of what is the true construction of the words inquestion I should feel constrained to allow the preliminary objection.
I do not think that the words "exclusive of the day of that date itself"which are relied upon to modify what on the face of it is the plainmeaning of the words "within a period of ten days" can have theeffect contended for. It is contended that the effect of those wordsis that notwithstanding the express direction that the petition ofappeal shall be presented within a period of ten days this provisionmust be read as permitting the presentation of the petition on; theday after the expiration of the period,or on the first available day afterthe expiration of the period. The effect of this contention would bethat the day, on which the thing which is directed to be done, withina period of ten days is done, is not to be counted in reckoning theperiod. That would, in my opinion make the provision
SCSri Lanka S. T.C v. Dharmadasa (Sharvananda, C.J.)239
self-contradictory, and if the intention of the Legislature was that thewords should be construed so as to expand the period of ten daysin subh a way that something done after the period had expired wasto be deemed to have been done within it, it has failed to giveexpression to its intention.'There may be ways of giving effect to thewords relied upon without giving them the effect which iscontended for, but any such interpretation could not be in adirection which would assist the contention which has been putforward. In my opinion the true construction of the paragraphinvolves that once the period of ten days has begun to run, theexclusions must be limited to days which intervene during thecurrency of the period and that the presentation of a petition ofappeal when that period has come to an end, is out of time."
In the above Divisional Bench case, the court unanimously held that,though on a proper construction of the legal proviso of 754(2) of theCivil Procedure Code, the appeal should be held to have been .filed outof time, yet it would recognise and uphold the long standing practiceof treating an appeal to be in order if it is presented on the day afterthe expiration of the ten days or, if that <Jay be a Sunday or a publicholiday on the first available day thereafter, and admit the appeal tohave been filed within time, on the principle that where an enactmentconcerning procedure had received a certain interpretation, which hasbeen recognised by the courts for a long period of years, the practicebased upon such interpretation should be followed and that a differentconstruction even though it be the correct construction, ought aftersuch a long passage of time, not be put on the law.
Thus.it would appear that, according to what was conceived to be inlaw the correct construction of the relevant section by the DivisionalBench, on the facts of the instant case, the permitted fourteen daysfor giving notice of appeal ended on. 16th June. It is to be noted thatsection 754(4) excluded Sunday and public holidays only in thecomputation of the fourteen days and not Saturdays even though theyare non-working days or dies non. It was held by this court in theunreported judgment in S. Mohideen Natchia v. Ismail Marikar,(2)that Saturdays should be included in computing the fourteen daysprescribed by amended section 756(4) of the Civil Procedure Code asthat section mandates that only Sundays and public holidays should beexcluded in the computation of the fourteen days. The rule forincluding Saturdays in calculating the fourteen days stipulated by
Sri Lanka Law Reports
11987] 2 Sri LR.
section 756(4) of the Civil Procedure Code applies equally well to theinclusion of Saturdays in the computation of the fourteen daysprescribed by 754(4), Civil Procedure Code. On this basis ofcalculation, when the appellant lodged his notice of appeal on the19th June, it was out of time, outside the fourteen days prescribed bysection 754(4) of the Civil Procedure Code, as the permitted fourteendays had ended on Friday 16th June, after the exclusion of 31 st Mayand 19th June, the day of judgment and the day pf presentation of thenotice of appeal and the two intervening Sundays viz: 4th and 11thJune. Section 8(1) of the Interpretation Ordinance will not avail theappellant since the last day for presenting the notice of appeal to courtwas 16th June, a Friday, a day on which the office was not closed.Had the last day been Saturday the 17th, then the notice of appealcould validly have been filed on the Monday the 19th June, when thecourt was open. But in the absence of similar long practice, as referredto in 30 N. L. R. 321, in connexion with the presentation of petition ofappeal, any notice of appeal not filed by Friday, the 16th June, wasnot on the construction of the law in order. '
Counsel for the appellant invoked in his aid the mode of computing"within a period of ten days" which was sanctioned by the decision ofthe Divisional Bench in 30 N.L.R. 321 and urged that constructionwhich had been adopted by the practice of the District Courts shouldalso be adopted in calculating "within a period of fourteen days"stipulated by section 754(4) of the Civil Procedure Code. I am unableto accept the validity of the proposition.
The sole ground of justification for adopting the construction of thelaw relating to the jurisdiction of the District Court to accept petitionsof appeal which had been presented on the day after the prescribedten days or on the first available day for presenting them after theexpiration of the ten days, in the 30 N.L.R. case, even though theJudges thought that it was not the true construction of the law wasthat such construction was acted upon for a long period of years and' that a different construction ought not now be put on the law. Thatjustification for adopting of an incorrect construction cannot exist inthe case of a new provision of law relating to the new jurisdiction ofcourt to accept a notice of appeal.
Counsel invoked the principle of construction that where thelegislature uses in an Act a legal term, that has received judicialinterpretation, it must be assumed that the term is used in the sense in
SCSri Lanka S.T.Cv. Dharmadasa (Sharvananda.C.J.)241
which it. has been judicially interpreted-vide the speech of Visco_*ntBuckmaster in Barras v. Aberdeen Steam Trawling and Fishing Co.,Ltd. (3) But this doctrine must be applied with caution. With referenceto this principle Lord Denning said: “I do not believe that wheneverParliament re-enacts a provision of a .statute it thereby gives statutoryauthority to every erroneous interpretation which has been put uponit.’ Royal Crown Derby Porclaim Co. v. Russel (4); and Lord Diplock inHaigh v. Charles W. Ireland (5) said "It is not to be presumed thatParliament in any Act of Parliament dealing with a related but notidentical subject-matter has taken account of and adopted as correctall judicial pronouncements as to the meaning of ordinary Englishwords appearing in statutory instruments." With reference to thiscanon of construction Lord Scarman said in R. v. Chard (6): •
"I respectfully agree with my noble and learned friend (Lord. Diplock) that it would be wrong to extract from the speeches of theirLordships in Barras v. Aberdeen Steam Trawling and Fishing Co.Ltd., (1933) AC 402, an inflexible rule of construction to the effectthat where once certain words in an Act of Parliament have receiveda judicial construction in one of the superior courts and thelegislature has repeated them without alteration in a subsequentstatute, the legislature must be taken to have used them accordingto the meaning which a court of competent jurisdiction has given tothem. Viscount Buckmaster clearly thought that such a rule existedand that it was salutary and necessary (see (1933) AC 402 at412 (1933) All ER Rep. 52 at 55); but others of their Lordshipstook a different view, notably Lord Blanesburgh and Lord MacMillan(see  AC 402 at 414, 446-447  All ER Rep. 52 at56, 72). Lord MacMillan, for, as I respectfully think, compellingreasons, treated the rule not'as a canon of construction of absoluteobligation' but as a presumption in circumstances where the judicialinterpretation was well settled and well recognised; and even thenhis Lordship thought the rule must yield to the fundamental rule thatin construing statutes the grammatical and ordinary sense of thewords is to be adhered to, unless it leads to some absurdity,repugnance or inconsistency. This view accords with modernprinciples of statutory interpretation and should, in my opinion bepreferred to that adopted by Viscount Buckmaster."
Further, notice of appeal is a new component of appeal, procedureintroduced by Amendment No. 20 of 1977. A cursus curiae relatingto petition of appeal does not get tacked to the new jurisdictional step
Sri Lanka Law Reports
 2 Sri L.R.
of notice of appeal. It is also to be noted that, while prior to 1977.applications for execution of decree could be made immediately qpthe entering of a decree, section 761 as amended by Law No. 20 of1977 bars any such application being instituted or entertained of anappealable decree until after the expiry of the time allowed forappealing therefrom. Hence, the correct computation of the timeallowed for taking steps to appeal is of importance to thejudgment-creditor to entitle him to make application for execution. Theconstruction contended for by Counsel for the Appellant will debar thejudgment-creditor taking execution proceedings beyond the timewhich the correct interpretation of law, as enunciated by the DivisionalCourt in 30 N.L.R. 321, would warrant. For these reasons theconstruction urged by Counsel for the Appellant cannot be adopted.
I agree with the Court of Appeal that the Defendant had failed togive notice of appeal within the time provided for by Section 754(4) of .the Civil Procedure Code.
Counsel for the appellant finally referred to the provisions ofamended section 759 of the Civil Procedure Code and prayed forgrant of relief on the plea that there-
"was mistake, omission or defect on the part of the appellant in
complying with the provisions of the foregoing sections."
But the power of this court to grant relief under section 759 does notextend to a case where the provisions of section 754(4) relating to thetime within which notice of appeal should be given has not beencomplied with. That section specially enacts that "if such conditionsare not fulfilled the court shall refuse to receive it" (notice of appeal).The section is mandatory. A party appealing does not acquire thestatus of an appellant if the court is directed to refuse to receive thenotice of appeal.
I dismiss the appeal with costs fixed at Rs. 1500
ATUKORALE, J.-l agree.
H. A. G. de Silva, J.-l agree.
SRI LANKA STATE TRADING (CONSOLIDATED EXPORTS) CORPORATION v. DHARMADASA