Wauigasekere v. Louisz.
1942Present: Howard C.J. and Soertsz J.
WANIGASEKERE et al v. LOUISZ et al.
369 and 110—D. C. Matara, 11.892.
Public holiday—-Dies non—Service of notice of security—Public Holidays
Ordinance (Cap. 135) s. 4—Civil Procedure Code, s. 365—Appointment
of next friend—Irregularity is no ground for dismissal of action.
Service.of notice of security on the respondent to an appeal may bemade on a public holiday.
Where an application for the appointment of a next friend to a minorplaintiff was made ex-parte and was not accompanied by a copy of theplaint and where the defendants made no objection to the acceptanctof the plaint on the ground of any irregularity in the appointment of thenext friend,—
Held, that the irregularity was no ground for the dismissal of theaction.
Held, further, that application by the minor in the course of the action toproceed with it in his own name under section 487 of the Civil ProcedureCode myst be taken to have cured the irregularity in the appointmentof the next friend.
^FPEAL from a judgment of the District Judge of Matara.
L. A. Rajapakse, for the respondents, took preliminary objection —The appeal is not properly constituted. The service of notice of tenderof security on the 3rd defendant, respondent was not made “ forthwithas required by section 756 (1) of the Civil Procedure Code. It wasserved on May 12, 1941, but that day was a public holiday, and anyprocess served on that day would be void and invalid. The question iswhether dies non are limited to the days mentioned in section 365 of theCivil Procedure Code or whether they include, all public holidays referredto in section 4 of the Holidays Ordinance (Cap. 135). It has been heldin Georgina v. Ensohamy 1 that every public holiday is a dies non and thatexecution of civil process on such a day would not be valid. Vide also
1 (1903) 7 N. L. It. 129.
Wanigasekere v. Louisz.
Appacutty v., Aysa Ufnma1 and section 8 (4) of the Interpretation Ordi-nance (Cap. 2). The allusion to the meaning of dies non in Kulantai-velpillai v. Marikar ‘ was merely obiter.
We took this objection before the District Judge, but it was notupheld. Hence the present interlocutory appeal.
The preliminary objection was overruled.
H. V. Perera, K.C, (with him, N. E. Weerasooria, K.C., and F. C. W.Van Geyzel), for the plaintiffs, appellants in No. 369 and the plaintiffs,respondents in No. 110.—The plaintiffs, who are three brothers, sued thedefendants for declaration of title to a certain land, each to a 1/3 share-The District Judge, although he holds in our favour in regard to legaltitle and prescription, has dismissed the whole action on the sole groundthat the third plaintiff, who was a minor at the date of the institutionof the action, was not properly before Court. He did so on the authorityof Fernando v. Fernando “, where it was held that an application for theappointment of a next friend must be accompanied by the plaint of theaction intended to be brought. There is no statutory rule that a personseeking appointment as next friend of a minor should accompany hisapplication with'the. plaint to be filed in the action. Even if there wasan irregularity the action should not have been summarily dismissed—Sinnapillai et al. v. Sinnatangam', Chitaley and Rao’s Commentary onthe Indian Civil Procedure Code (2nd ed.), pp. 2288, 2297. Furtherthe election by the minor, when he attained majority pending the action,to proceed with the case cures all irregularity.
L- A. Rajapakse, for the defendants, respondents in No. 369 and thedefendants, appellants in No. 110.—Fernando v. Fernando (supra) wasfollowed in Mohamado Umma v. Mohideen*. Not only was no plaintsubmitted along with the petition for appointment as next friend, butalso the imperative provisions of section 431 of the Civil Procedure Codewere not complied with; i.e., the defendants were not made respondentsto the petition. Even if the first and second plaintiffs are entitled tosucceed regarding 2/3 of the land the action of the third plaintiff has to bedismissed^
H. V. Perera. K.C., in reply.—The irregularity, if any, in the appoint-ment of third plaintiff’s next friend is not fatal to the proceedings. SeeD. C. Kandy,. 38,477 (S.:C. No. Ill)" and Walian v. Banke BehariPershad Singh '.
In an application for the appointment of a next friend for a minor forthe purpose of instituting an action on behalf of the minor, the intendeddefendant need not be made respondent to the petition ; section 481 of theCivil Procedure Code applies only to cases where a petition for a minorto be represented by a next friend is made in the course of, or as incidentalto; an action—Mohammado Umma v. Cader Mohideen".
Cur. adv. vult.
» asm 9 s. c. c. m.
1 (1918) 20 N. L. R. 471.3 (1892) 2‘G. I.. Rep. 82.1 (1916) 2 C. Tl R. 7.3.
6 (1892) 1 S. C. R. 302.
* S. C. Minutes of 2nd March, 1942.» r. L. R. 30 Calc. 1021.
» (1892) 2 G. L. Rep. 163.
HOWARD CJ.—Wanigasekere v. Louisz.39
October 23, 1942. Howard C.J.—
This is an appeal by the plaintiffs from a judgment of the DistrictJudge of Matara dismissing the plaintiffs’ action with costs. A pre-liminary objection to the hearing of the appeal has been taken byMr. Rajapakse on behalf of the respondents on the ground that service ofnotice of security on the third defendant was not made in time. Itappears that such notice was served personally on the Proctor for thethird defendant—Mr. C. A. Solomons—on May 12, 1941. It is concededthat serivce on the third defendant’s Proctor would be good if the latterwas given notice forthwith on the petition of appeal being received bythe District Court. It is maintained, however, that the service of noticeof security was not made forthwith inasmuch as May 12, 1941, was apublic holiday and service was therefore invalid. Subsequent serviceon the third defendant and Mr. Solomons, made not personally, but bybeing affixed to the front doors of their respective houses, was not goodinasmuch as it was not made “ forthwith ”.
In contending that service on a public holiday was invalid, Mr. Raja-pakse relies on section 4 of the Holidays Ordinance (Chapter 135). Thissection is worded as follows : —
“The several days mentioned in the Second Schedule (in thisOrdinance referred to as ‘ public holidays ’) shall, in addition toSundays, be dies non, and shall be kept (except as hereinafter provided)as holidays in Ceylon ”.
The 12th May, 1941, was the full moon day of the Sinhalese month Wesakand therefore a Public Holiday. The only question that arises is whetherthe classification of May 12, 1941, as a Public Holiday, renders service onthat day invalid. The phraseology of section 365 of the Civil ProcedureCode (Chapter 86) suggests that service, between the specified hours onany day except a Sunday, Good Friday or Christmas Day would bevalid. This provision is worded as follows : —
“ Process in civil cases, whether at the suit of the Crown or indivi-duals, shall not be served or executed between the period of sunsetand sunrise, nor on a Sunday, Good Friday, or Christmas Day, noron any minister of religion while performing his functions in anyplace of public worship, nor upon any individual of any congregationduring the performance of public worship at any such place. ”
Although this provision would seem to imply that service on a PublicHoliday other than those specified therein would be valid, this Courtheld in Georgina v. Ensohamy' that, although section 365 of the CivilProcedure Code mentions only Sunday, Good Friday and ChristmasDay, as days on which process in civil cases shall not be served orexecuted, its effect is not to render valid the execution of civil processon other public holidays declared dies non by section 4 of the OrdinanceNo. A of 1886. A sale in execution held by the Fiscal on -a public holidayis bad. In coming to this conclusion, Wendt J., following a decision ofClarence J., in Appa Cutty v. Aysa Umma3, held that, although the mattermight perhaps have been made clearer, the intention of the Legislaturemust have been that the scheduled days should-be days not available
1 7 N.L. R. 129.
= 9S.C. C. 121
HOWARD C.J.—Wanigasekere v. Louisz.
lor service or execution of civil process, under section 30 of the OrdinanceNo. 4 of 1867. This section corresponded to section 365 of the CivilProcedure Code. In Appa Cutty v. Aysa Umma (supra) it was held that avalid arrest for execution against the person could not be made on a publicholiday, that is to say, a day scheduled in the Holidays Ordinance. Thedecisions in the two cases on which Council for the respondent relies are,however, in conflict with the law as formulated by Bertram C.J., and DeSampayo J., in Kulantaivelpillai v. Marikar (supra). In that case it was heldthat a Judge may accept a plaint in a civil case in Chambers at hisresidence. This act was not rendered' invalid by being performed on aSunday. In the course of his judgment, Bertram C.J. considered theeffect of the declaration of a day as a public holiday and dies non by theHolidays Ordinance in the following passage : —
“ The effect, therefore, in my opinion, of the declaration of a dayas a public holiday and dies non by Ordinance No. 4 of 1886, is twofold.In the first place, it excuses judicial officers and their subordinateministerial officers from the necessity of attending Court, or of perform-ing any judicial or ministerial acts, on that day ; in the second place,it protects any member of the public from being forced to attendCourt, or to attend any judicial proceeding held elsewhere than inCourt, on that day. It does not, in my opinion, affect any judicialact or proceeding which may be validly done or taken in the absenceof a party, and which, consequently, does not involve his personalattendance. Further, it does not preclude a judicial officer, or anyof his ministerial subordinates, from waiving his privileges if he sodecides, and from doing any act or taking part in any judicial pro-ceeding on a day declared to be a • holiday. There is nothing eitherin the Ordinance or in the principles laid do.wn by Voet, which declaresnull and void any judicial act which a judicial officer voluntarilyelects to do, and which does not inolve the compulsory attendancebefore him of any party affected.”
The conclusions of the learned Chief Justice were based on the propositionthat the question must be considered from the point of view of Roman-Dutch Law. In this connection, I might mention that the expressiondies non is foreign to English Law. Bertram C.J. then proceedsto discuss the division of holidays by Voet into two classes, ferinedivinae and feriae humanae and arrives at the conclusion that thedays mentioned in the Schedule to the Holidays Ordinance must-be allalike considered as holidays of human institution or feriae humanae.With regard to this class of holiday, the principle governing them wasthat no one shall be compelled to take part in litigation against his will.Voet does not declare that any judicial act done upon a holiday of humaninstitution is ipso facto void. What he does say is that any judicialact by which it is sought to compel anyone to take part in litigation onsuch a holiday against his will is void. The service of a writ upon aperson cannot be said to be compelling that person to take part inlitigation. It is true that the passage cited by me from the judgment ofBertram C.J. was obiter, but I am satisfied that it correctly formulatesthe significance that must be attached to the expression dies nonand it is to be preferred to the decisions in Appa Cutty v. Aysa Umma
HOWARD C J.—Wanigasekere v. Louisr.'
(supra) and Georgina v. Ensohamy (supra) .which are based on speculationsas to the intentions of the Legislature and contrary to the plain meaningof the phraseology employed in section 365 of the Civil Procedure Code.In these circumstances, the preliminary objection is overruled.
With regard to the appeal, the learned District Judge has found infavour of the plaintiffs except as to issue 6. With regard to this issuehe found that the plaintiffs’ appointment as next friend of the minor,that is to say the third plaintiff, was bad in law, inasmuch as whenapplication was made by the first and second plaintiffs for the appoint-ment of the first plaintiff as next friend of the third plaintiff, no copy ofthe plaint was filed in support. In coming to this conclusion the learnedDistrict Judge relied on the case of Fernando v. Fernando (supra). In thatcase an application was made for the appointment of a next friend to insti-tute an action on behalf of minors against the respondent. The latterresisted the application on the ground that administration of the estateshould first be taken out. The Court, constituted by Burnside C.J.and Withers J., held that it is contrary to practice to prosecute a claimon behalf of minors unless the libel itself is before the Court in order thatthe Court could exercise its own judgment as to whether it was to theinterest of the minors that the action should be brought. The decisionin Fernando v. Fernando (supra) seems to have no relevance to the factsof the present case. Formal order on the application for the appointmentof the first plaintiff as next friend over the third plaintiff was made onJune 21, 1937. It is true the application was made ex parte and wasunaccompanied by a copy of the plaint. On June 25, 1937, however,the same Judge accepted the plaint. It must be presumed that by suchacceptance he deemed that the action was being instituted in the interestof the minor. A further objection relating to the validity of the appoint-ment of the next friend was taken at the trial and in this Court on theground that the defendants were not named in the application nor thecause of action as against them set out therein.
It would appear that the respondents did net make objection to theacceptance of the plaint on the ground of any irregularity in the appoint-ment of the next friend. If such an objection had been made at the time,it would have been the duty of the Judge to have suspended the pro-ceedings to give the plaintiffs an opportunity to rectify such irregularity,vide Sinnapillai v. Sinnalangam (supra). Such irregularity would not be agound for dismissal of the action. The commentary in Chitaley onOrder 32, Rule 2 of the Indian Civil Procedure Code, which provision issimilar to section 478 of our Code, indicates that the Indian Courtshave adopted the same view: In this connection, the followingpassage in Volume 3 of Chitaley (2nd Edition) on page 2297 is also inpoint: —
" A defect or irregularity in procedure in the appointment of aguardian ad litem, is also only an irregularity and will not be a groundfor setting aside the decree unless it had the effect of causing prejudiceto the minor. In Walian v. Banke Behan (supra) their Lordships-of theJudicial Committee, after impressing upon the Courts in India theimportance of following strictly the rules laid down by the Code,
Kanapathvpillai v. Kandiah.
proceeded to observe at page 1031 : ‘But it is quite another thing tosay that a defect in following the rules is necessary fatal to theproceedings
There is also a further point that is in my opinion fatal to the res-pondents' contention. Any irregularity in the appointment of the nextfriend was in respect of the omission to take certain steps to safeguardthe interests of the minor. By virtue of section 486 of the Civil ProcedureCode the minor could, on coming of age, elect whether he will proceedwith the action. On February 12, whilst the action was partlyHeard, the minor, that is to say the third plaintiff, moved that he beadded as third plaintiff and be allowed to proceed with the case in his ownname- This motion was allowed and the caption amended as prescribedby section 487 of the Civil Procedure Code. Such action oh the part ofthe minor must be taken to have cured any irregularity in the appointmentof the next friend. For the reasons I have given I am of opinion thatissue 6 should have been answered in favour of the plaintiffs. Counselfor the respondents has also contended that the findings of the learnedJudge on the other issues should have been answered in favour of therespondents. There is no .substance in this contention.
The appeal must be allowed. The order of the District Court is setaside and judgment entered for the plaintiffs as claimed, together withcosts in this Court and the District Court.
Soertsz J.—I am in complete agreement.