084-NLR-NLR-V-39-THEVANAI–et-al.-v.-SINNAPPU.pdf
Thevanai v. Stnnappu.
292
Present; Poyser S.P.J. and Koch J.
THEVANAI et al. v. SINNAPPU.
Application for Leave to Appeal, D. C., Jaffna, 7,163.
Leave to appeal notwithstanding lapse of time—Failure to tender correct stampfor judgment in appeal—Not a cause beyond the control of applicant—Civil Procedure Code, s. 765.
Where an appeal was dismissed on the ground that the proper stampfor the judgment in appeal had not been tendered and an application forleave to appeal in the case, notwithstanding lapse of time, was made underthe provisions of section 765 of the Civil Procedure Code.
Held, that the appellant was not entitled to have leave to appeal,notwithstanding lapse of time.
T
HIS was an application for leave to appeal notwithstanding lapse oftime.
N. Nadarajah, for petitioner.—The appeal in this case was dismissedoriginally on the ground that the proper stamp for the certificate in appealhad hot been tendered. On the ground that a certain amendment of TheStamp Ordinance had not been brought to the notice of the SupremeCourt, the case was listed again for argument, when it was discoveredthat the stamp for the'certificate in appeal was correct, but that therewas a deficiency of three rupees in respect of the stamp for the judgmentof the Supreme Court ; and the previous order dismissing the appeal wastherefore affirmed. If the Supreme Court itself and the lawyers werenot sure what the correct stamp was, how much more should the petitionernot have known it. That the stamp was deficient is a cause not withinhis control. On the facts, the grounds of appeal are ex facie good. InParis v. Silva*, the full Bench held that appeal notwithstanding lapsemay be granted even if the regular appeal has been dismissed on sometechnical ground. Nagappa Chetty v. Kretser * followed that decision.
A. Rajapakse, for the respondent.—The jurisdiction of the SupremeCourt to allow leave notwithstanding lapse of time under section 765exists, where the provisions of section 754 and section 756 have not beenobserved. It has no application to cases where the appeal has been dis-
missed because the proper stamp has not been tendered.
1 (1918) 20 N. L. R. 318.
» i Bal. Notes 98.
* 3 C. L. R. 21.
POYSER S.P.J.—Thermnai v. Sinnappti.293
The question of the correct stamp is referred to in the Stamp Ordinance,No. 22 of 1909. That it is an imperative requirement has been held inAttorney-General v. Karunaratne
The cases relied on by the petitioner support my contention. Peiris v.Silva (supra) and Nagappa Chetty v. Kretser (supra). Both show that itis only where there is a non-compliance with the provisions of section 754and section 756 that the Supreme Court will entertain an applicationfor leave notwithstanding lapse. In an unreported decision—Applicationnotwithstanding lapse, D. C. Galle, 31,407, S. C. Minutes of April 7.1936 (Revision cases), a similar application, where the proper stampfor the decree in appeal had been tendered a few days later, was refused.
Ignorance of the law with regard to what is the correct stamp cannotpossibly be said to be a cause beyond his control.
Cur. adv. vv.lt.
March 28, 1938. Poyser S.P.J.—
This is an application under section 765 of the Civil Procedure Code forleave to appeal notwithstanding lapse of time in D. C. Jaffna, No. 7,163.This case came up before my brother Soertsz and myself early last year.The case was listed for dismissal on the ground that the petition of appealhad been insufficiently stamped, the point being whether a claim ip.respect of property valued at Rs. 500 and a claim for damages for twomonths was a claim for an amount exceeding Rs. 500. We held that itwas and the appeal was accordingly dismissed. Subsequently, onSeptember 28, 1937, it appeared that we, in adjudicating in that case, hadnot considered the latest amendments to the Stamp Ordinance. Wehowever decided that that fact did not affect the decision in this case,although it did affect the decision in another case in which the appealhad been dismissed for similar reasons. The affidavit in this applicationwas made some two months after, namely, on November 30, 1937.
I do not think this application can be granted. In the first placesection 768 provides that “ it shall be competent to the Supreme Courtto admit and entertain a petition of appeal from a decree of any originalcourt, although the provisions of sections 754 and 756 have not beenobserved ; provided that the Supreme Court is satisfied that the petitionerwas prevented by causes hot within his control from complying with thoseprovisions ”. The failure to stamp a document correctly cannot be said,in my opinion, to be a cause not within the control of the appellant.Those words, in my opinion, refer to such matters as illness or othercircumstances which would prevent a litigant from complying with theprovisions of sections 754 and 756. I do not think such words wereintended to apply to questions of stamp duty. It has been argued thatas section 754 provides for the filing of a petition of appeal and that suchappeal must necessarily be stamped, that the provisions of these, sectionsdo include stamp duties. On the other hand, it is clear in my opinionthat the whole question of stamp duties is contained in the Stamp Ordi-nance and not in the Civil Procedure Code.
Apart from this view of the scope of section 765, the point that ariseson this application has already been decided when this case first came
1 37 N. L. X. 57.
294
In the Matter oj a Rule on H. A. J. Hulugalle.
before my brother Soertsz and myself. In our judgment which is reportedat 39 New Law Reports, p. 121, there occurs this passage.:—“ There isone further point, viz., whether this appeal must be dismissed or whetherthe defect can now be cured. There seems no doubt that the court must,dismiss the appeal and this point is settled by authority ”. The author-ities referred to were the cases of Salgado v. Peirisand Hurst andanother v. The Attorney-General In those, cases it was held that wherea petition of appeal was insufficiently stamped that there was no powerto allow it to be properly stamped after the time for appealing hadexpired and that the appeal must necessarily be dismissed. It wasfurther pointed out in those cases that section 36 of the Stamp Ordinanceprohibited the court from acting upon the instrument. Consequently inthis case if we were to accede to this application, we would in effect beignoring the stringent provisions of section 36 of the Stamp Ordinance.
The application is refused with costs.
Koch J.—J agree.
Application refused.