060-NLR-NLR-V-74-W.-D.-A.-PERERA-Petitioner-and-W.-GONADUWA-Respondent.pdf
Perera v. Gonaduwa
207
Present: Samerawiekrame, J.
W. D. A. PERERA, Petitioner, and W. GONADUWA, Respondent
S. O. 679/69—Application in Bevision and/or Bestilvtio in Integrumin C. B. Colombo, 97Oil
Civil Procedure—Postponement—Agreement to pre-pay costs before a certain date,which was o' public holiday—Payment made into Court on the day after theholiday—Effect.
Defendant’s application for postponement was allowed upon the followingterms :—
" Trial refixed for 11.9.69. Defendant to pre-pay Its. 75 before 11.9.09.If not so paid, of consent judgment for plaintiff as prayed for. ”
208
SAMERAWCKJt AME, J.—-Percra v. Gonaduwa
The defendant tendered the money in Court on J lth September 1969, andsubmitted that ho was unable to pay the money on the previous day because itwas a Poya holiday.
Held, that the undertaking to pay costs simplicitcr did not imply paymentinto Court. Accordingly, the failure to make payment on 10th September19G9 brought into operation tho consequeneo provided for in the agreement.
Application in revision and/or restitutio in integrum in respectof an order of the Court of Bequests, Colombo.
N.Ji. M. Daluwalte, with S. D. Jayauardena and George Perera, forthe defendant-petitioner.
A. Sivagurunathan, for the plaintiff-respondent.
Cur. adv. wit.
May 5, 1971. Samerawickkame, J.—
This is an application by tray of revision to set aside a consent orderentering judgment for the plaintiff.
On 25th July, 1969, the defendant moved for a postponement- of thetrial and the learned Commissioner of Requests allowed a postponementand refixed trial for I lth September, 1969. The record reads :
“Trial refixed for 11.9.69. Defendant to pre-pay Rs. 75 before11.9.69. If not so paid, of consent judgment for plaintiff as prayedfor. ”
10th September, 1969, was a Poya holiday. The defendant failed tomake payment before 11.9.69 and he tendered the money in Court on11.9.69 and submitted that ho was unable to pay the money on theprevious day because it was a Poya day. Learned counsel for thepetitioner relied on the case of Madan G'opctl v. Pall is h In that case theCourt granted a postponement on 19th December and ordered that theplaintiff should pay a sum of Rs. 500 as costs bj' the end of the month andthat in default of payment within that time the suit should standdismissed. 30th and 31st December and 1st January were publicholidays and the plaintiff sought to tender the money on the 2nd ofJanuary. It was held that the order of the Court was ambiguous andthat therefore such construction must be given to the order as wouldcause the least prejudice or harm to a litigant or a person affected by theorder. It was therefore held that the payment on 2nd January was interms of the order. The order in the present matter however, is by nomeans ambiguous and is definite and stated that costs should be paidbefore 11.9.69. Moreover, in Simon Singho v. William Appuhatny – the
1 A. I. R. 1067 Calcutta SOS.
'■ (1025) 20 iV. L. R. 10S.
Brillo v. Swamihannu
200
agreement was that costs should be paid before 20tk July which was aSunday. Bertram, C. J. stated that a person is relieved from responsibilityto make a payment in the nature of a judicial act on a Sunday. Anundertaking to pay costs simpliciter does not imply payment into Court.He accordingly held that the failure to make payment on 20th Julybrought into operation the consequence provided for in the agreement.I am therefore of the view that no ground has been made out for theintervention of this Court. The application is dismissed with costs.
Application dismissed.