005-SLLR-SLLR-1981-1-VITHANA-v.-WEERASINGHE-AND-ANOTHER.pdf
52
Sri Lanka Law Reports
<1981)1 SLR.
VITHANA
V.
WEERASINGHE AND ANOTHER
SUPREME COURT.
SAMERAWICKRAME, J.. ISMAIL. J. AND WANASUNDERA. J.S.C.42/80-C.A. 143/78 (F)-O.C. MATARA 6267.
JANUARY 12,1981.
Civil Procedure Coda, tactions 754, 755, 759, 768—Petition of appeal filed out oftime—Affidavit filed by Attorney diet omission due to bit ittnets—Power of Court togrant relief under taction 759(21 —Whether section 765 applicable to a cate wherepetition ofappeal is out of time.
The appellant had complied with the provisions of lection 754 of the Civil ProcedureCode bv giving notice of appeal within the prescribed period of 14 days but had failedto file the petition of appeal within 60 days. It had been filed one day late. Theobjection was taken that the appeal was out of time. The AtiomeY-et-iaw for theappellant filed an affidavit supported by other documents that the omission was dueto his own illness and was a cause beyond the Control of his client. The Court of Appealupheld the objection and abated the appeel.
Held
The provisions of section 759 (2) of the Civil Procedure Code were wide enough to applyto the present case. Accordingly the record should go back to the Court of Appeal to
vnabie it to consider whether or not the appellant should be anted relief in terms ofsection 759(2).
Per Wanasundera, J.
"Section 765 makes provision for an appeel notwithstanding lapse of time. It empowersthe Court of Appeal to entertain a petition of appeal, although the provisions of sections
and 756 have not been observed. The time limits in these two sections are in respectof, first the lodging of the appeal by giving notice of appeal and. second the filing ofof an application for leave to appeal. Although section 7S5 (3) also contains a time limit,there is no reference to that section in section 765. It seems dear therefore that section
is intended to apply to situations which are different from the present case. Thepresent case is an instance of what I have termed the second stage in our appellateprocedure. Section 765 however is limited to the first stage. In this view of the matterthe omission of a reference to section 755 in section 765 has been a deliberate act onthe part of the draftsman and can in no way be regarded as "an obvious mistake eitherby the draftsman or by the printer".
Cases referred to
Cl) Wkktemaaingho v. OeSilva. (1978-7912 SriL.P. 65.
€21 Senrnn v. Abeywkkrama. (1963164 N.L.R. 553; (19631 A.C. 597; (196312 W.L.P.1114; (196313 All6.9. 382.
sc
Vithana v. Weeradnghe (Wanasundera, J.)
53.
APPEAL from a judgment of the Court'of Appeal.
M./. H. M Sally, with Mohamed Hassim, for the plaintiff-appellant.
N.R. M. Oahrwatte, for the 2nd defendant-reipondent.
Cur. ad*, mlt.
April 9,1981.
WANASUNDERA, J.
This is an appeal from a judgment of the Court of Appeal abatingan appeal filed by the appellant The appellant, who was the plaintiffin a partition action, had objected to a scheme of partitionsubmitted by the Commissioner appointed by Court. After inquirythe Court gave judgment against the appellant and ordered that afinal decree be entered in terms of the scheme of partition. Theappellant has purported to appeal from that judgment.
The present provisions relating to appeals are somewhat differentfrom the provisions of the original Civil Procedure Code which hasbeen amended in this respect by Act No. 20 of 1977. It nowprovides, in the first instance, for lodging an appeal by notice ofappeal within 14 days of/the date of the. judgment. Section 755(3)provides for the presentation of a petition of appeal, embodyingthe grounds of appeal, within 60 days of the date of the judgment.
The appellant had duly complied with the provisions of section754 by giving notice of appeal within the prescribed period of14 days. The second step, namely, the filing of the petition ofappeal has admittedly been done not within 60 days, but one daylate. An objection has been taken that the appeal is out of time.The attorney for the appellant has taken the blame for this lapse.He has submitted an affidavit stating that this omission was due to 'his own illness and was a cause beyond the control of his client.He has annexed a medical certificate and other documents fromthe nursing home to support this averment
The Court of Appeal, however, following a recent decision ofthat Court, upheld the objection and abated the appeal. Theappellant has come before us and challenges these decisions.
An appeal under the earlier law was a one-step affair andinvolved the filing of the petition of appeal within ten days of thejudgment The other requirements related to the grant ofsecurity—vide section 756. Even the old Law contained provisions
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for relief against lapses. Chapter LX, section 765, provided forentertainment of appeals notwithstanding lapse of time if theCourt was satisfied that the appellant was prevented by causes notwithin his control. Section 756(3) permitted relief to be given inthe case of mistake, omission or defect on the part of the appellantin respect of ancillary matters. Unfortunately, there was atendency to interpret these provisions narrowly. In an effort toremedy this, the powers of court were further enlarged by theSupreme Court Appeals (Special Provisions) Act, No. 4 of 1960.It can now be said that the time is over when Courts were ready touphold technical objections to the entertainment of appeals, unlessit is a matter of some real substance. The Law now contains clearindications for relief to be granted for lapses and the Courts are nolonger prevented from doing justice in such cases.
The Administration of Justice Law, No. 44 of 1973, which cameinto operation in 1974, made a radical change in the procedure ofappeals. It is in fact the forerunner of the appellate procedurewhich obtains today. It introduced a new concept with the processof appealing, involving two stages. The first step contained insection 318 provides for the giving of notice of appeal to theoriginal Court. This has to be done within 14days—vide section 320.The second step for perfecting the appeal is contained in section330, and this requires the appellant to lodge in the SupremeCourt written submissions in writing within a specified number ofdays.
The Administration of Justice Law aiso enabled the Courts to grantrelief for mistakes, omissions, defects and for non-compliance withthe provisions relating to appeals. Such provisions not only appliedto the first step but also embraced the second step in the processof appealing. In regard to the initial lodging of the notice ofappeal, the proviso to section 320 enabled the original Court toadmit and entertain a notice of appeal notwithstanding lapse oftime if the Court was satisfied that the appellant was prevented, bycauses not within his control, from complying with this provision.In regard to the second stage of filing written submissions, theappeal was deemed to be abated only if the appellant failed orneglected, without reasonable cause, to lodge his written submissions,in terms of the section.
Over and above these provisions, there was also section 353 ofthe Administration of Justice Law vesting further powers in the
55
SCVithana v. Weerasinghe{Wanasundera, JJ
Courts, the material portions of this section read as follows
“353. (1) Where there is any error, omissio.nt-or default incomplying with the provisions of this law relating to the lodgingof an appeal, the original Court shall, notwithstanding suchprovisions, forward to the Supreme Court the notice of appealtogether with all the papers and proceedings of the case relevantto the judgment appealed against.
(2) Subject to the provisions of section 330, the SupremeCourt shall not exercise the powers vested in such Court by thisLaw to reject or dismiss an appeal on the ground onjy of anyerror, omission or default on the part of the appellant incomplying with the provisions of this Law, unless materialprejudice has been caused thereby to the respondent to suchappeal."
It has not been contended before us, nor has the Court of Appeal ineither of the two cases referred to earlier taken the view, that anappellant who fails to comply with the provisions of section 755(3)has been altogether denied a remedy. The Court of Appeal has, inboth cases, taken the view that the appellant has oniy made a wrongchoice and that the appropriate relief would be byway of ChapterLX, section 765—that is by application to appeal notwithstandinglapse of time -and not under seetioa.759(2) as was sought in thiscase. In the earlier case— Wickramasinghe v. Magiiin NonadeSilva (1), the Court of Appeal said:
“It may be added that there is statutory provision for filingof petitions of appeals notwithstanding lapse of time. Perhaps thepetitioner could advise himself as to whether he should proceedunder Chapter LX. In our view subsection (2) of section 759cannot be used to rescue the petitioner especially as theprocedure set out in Chapter LX is available."
The Court of Appeal, in the present case, sought to follow thisreasoning. In seeking to apply this section, the Court- of Appealexpressed the view that the omission in section 765 to mentionsection 755 while it specifically mentions sections.754 and 756was the result of "an obvious omission either by,the draftsman orthe printer".-
Incidentally this approach of the Court of Appeal is, in my view,impermissible and not in accordance with the ordinary canons of
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Sri Lanka Law Reports
(1981) t&LR.
statutory interpretation. The Courts are not free to omit or addto the language contained in a statute; nor should a Court lightlypresume a mistake or omission on the part of the draftsman orprinter, save in exceptional circumstances where a mistake oromission is patent and obvious. It is certainly not so in the presentcase where the problem is a complex one requiring a considerationof the. connected sections for one to arrive at the correct meaning.
Section 765 makes provision for an appeal notwithstanding lapseof time. It empowers the Court of Appeal to entertain a petitionof appeal, although the provisions of sections 754 and 756 have notbeen observed. The time limits in these two sections are in respectof, first the lodging of the appeal by giving notice of appeal and,second the filing of an application for. leave to appeal. Althoughsection 755 (3) also contains a time limit, there is no reference tothat section in section 765. It seems clear therefore that section765 is intended to apply to situations which are different from thepresent case. The present case is an instance of what I have termedthe second stage in our appellate procedure. Section 765 however islimited to the first stage. In this view of the matter the omission,of a reference to section 755 in section 765 has been a deliberateact on the part of the draftsman and can in no way be regarded as"an obvious mistake either by the draftsman or by the printer".
If section 765 has no application, we have to turn our attentionto the provisions of section 759 (2) which also enables relief to begiven "in the case of any mistake, omission or defect on the partof any appellant in complying with the provisions of the foregoingsections". It would be sufficient here to state that these provisionsare wide enough to apply to the present case, without attemptingto rule on the full scope of this section. This section bears a closesimilarity to section 756(3) of the old Code on which there is adecision of the Privy Council. In Sameen v. Abeywickrema (2),after examining section 756(3), the Lord Chancellor observed:
"The distinction sought to be drawn by the learned judgebetween 'a failure to comply with' and 'a mistake, omissionor defect in complying with' is not, in their Lordships' opinion,a valid one. The failure to comply with a requirement may bedue to a mistake or omission. An omission in complying with arequirement must, so it seems to their Lordships, involve afailure to comply with the requirement
sc
Vithana v. Weerasinghe (Wanasundera, J.)
57
Their Lordships are accordingly unable to accept the learnedjudge's view as a correct interpretation of section 756(3). Astheir Lordships have said, that sub-section is expressed to applyin relation to the provisions of section 756 and there is nojustification for saying that it applies to some and not to allthe provisions of that section. It is also expressed to apply inrelation to any mistake, omission or defect.
In their Lordships' view the Supreme Court is given by thissub-section the power to grant relief on such terms as it maydeem just where there has been a failure to comply with anessential requirement of the section. The only limitationimposed by the sub-section is that the court has no power todo so unless it is of the opinion that the respondent has notbeen materially prejudiced."
The provisions we are called upon to consider, though similarlyworded, are much wider in scope and are not limited to section759 itself, but are expressed to apply to all the foregoing sections.On a parity of reasoning, I find that section 759(2) is adequate todeal with an application of this kind, and it is precisely to theseprovisions that a person such as the present appellant must lookfor relief.
There are other provisions in the Code, like sections 754(4) and755(3) which were contrasted by counsel for the appellant andwhich seem to support the view expressed by me, but it isunnecessary to refer to them in view of what has been statedearlier. As regards the decisions cited by counsel on both sides,they deal essentially with the procedure that prevailed prior to1974 and have little application to the particular provisions we arecalled upon to consider, which are admittedly different.
For these reasons I would allow the appeal. The record willgo back to the Court of Appeal to enable it to consider whetheror not the appellant should be granted relief in terms of section759(2) of the Civil Procedure Code. The appeal is allowed withcosts, fixed at Rs. 525 payable by the 2nd defendant-respondent.
SAMERAWICKRAME, J.—I agree.ISMAIL. J.-l agree.
Appeal allowed.