026-NLR-NLR-V-62-WICKRAMATILAKE-Appellant-and-DARSIN-DE-SILVA-Respondent.pdf
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23ASNAYAJ-CK, C.J.—IVickramrUilake v. /)amn de Silvfi
1960Present ; Basnayake, G.J., and de Silva, J.
WlGKRAMATILAKE, Appellant, and DARSIN DE SILVA, Respondent
S. C. 315—In the matter of an Application for Revision in D. C. Balapitiya,
187 fT
Ap-peal—Notice of lender of security—Requirement that it should be served on respondentpersonally—Distinction between “ process of Court ” and “ notices ”—CivilProcedure Code., ss. 24, 29, 59, 356, 756.
TJnder section 75G of tho Civil Procedure Codo notice of tendering security forthe respondent’s costs of appeal must be served on the respondent himselfpersonally. Service on the respondent’s Proctor is not sufficient.
Application to revise on order of the District Court, Balapitiya.
H. V. Perera, Q.C., with L. W. de Silva and L. C. Seneviratne, forPetitioner-Appellant.
H. W. Jayervardene, Q.C., with G. D- Welcome and A. R. M. Daluwatte,for 3rd Respondent-Respondent.
Cur. adv. vult.
July 1, 1960. Basnayake, C.J.—
In this application the petitioner invokes the powers of this Courtunder section 753 of the Civil Procedure Code. She questions the legalityof the order made by the learned District Judge on 3rd June 1959 andasks that it be set aside. It was held by the District Judge that theappeal lodged by the petitioner on 13th March 1959 against his judgmentpronounced on 6th March 1959 had abated on the ground that the peti-tioner had failed to give security as provided in section 756 of the Code.An appellant is required by that sectioh to give notice to the respondentthat he will on a day to be specified in such notice, and within a periodof twenty days from the date when the decree or order appealed againstwas pronounced, tender security for his costs of appeal. In the instantcase the appellant purporting to act under that section tendered thefollowing notice :—-
“ IN THE DISTRICT COURT OF BALAPITIYA
In the matter of an application in terms of section 712 of theCivil Procedure Code
between
Garumuni Mallika Premawathie de Silva WickrematilekeWellabodde in Balapitiya
Petitioner-Appellantand
B. Darsin de Silva of Mohittiwatta
3rd Respondent
R. M. S. Karunaratne, Proctor, Balapitiya..
5Lxn
2
J. N. K 11285—1,995 (8/00)
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BASNAYA303, C-J.—Wickramatilake v. Darain da Silva
To : Mr. R. M. S. Karunaratne, Proctor, Balapitiya.
TAKE NOTICE the petition of appeal presented by me in theabovenamed action on the 13th day of March 1959 against the orderof the District Court of Balapitiya dated the 6th day of March 1959in the said action having been received by the said Court counsel onmy behalf will on the 20th day of March 1959 at 10 o’clock in the fore-noon or so soon thereafter being within 20 days from the day of thedate of such order move to tender security in Rs. 150 cash for anycosts which may be incurred by you in appeal in the premises andwill on the said day deposit in Court a sufficient sum of money to coverthe expenses of serving notice of appeal on you.
Sgd. G. M. P. de S. WickramatilakeAppellant
(Petitioner-Appellant)
This 13th day of March 1959. ”
Objection was taken to the above notice on the ground that it doesnot satisfy the requirements of the statute. After hearing the partiesthe learned District Judge held that notice has not been given in com-pliance with the provisions of section 756. Where a statute requires thatnotice should be given to a party notice should be given to the partyhimself personally unless the statute declares that notice to the party’sduly appointed agent is deemed to be notice to the party.
The Civil Procedure Code does prescribe that in certain cases the dulyappointed agent may act for or receive notices meant for the party.Eor instance section 24 provides that any appearance, application, oract in or to any court, required or authorised by law to be made or doneby a party to an action or appeal in such court (except only such ap-pearances, applications, or acts as by any law for the time being in forceonly advocates or proctors are authorised to make or do, and except whenby any such law otherwise expressly provided) may be made or doneby the party in person, or by his recognized agent, or by a proctor dulyappointed by the party or such agent to act on behalf of such party.Another instance of such a provision is to be found-in section 29 whichprovides that any .process served on the proctor of any party or left atthe office or ordinary residence of such proctor relative to an action orappeal except where the same is for the personal appearance of theparty, shall be presumed to be duly communicated and made known tothe party whom the proctor represents ; and, unless the court otherwisedirects, shall be as effectual for all purposes in relation to the action orappeal as if the same had been given to, or served on, the party in person.
Eor the purpose of this application it is not necessary to considersection 24 ; but section 29 calls for notice. That section applies to anyprocess served on the proctor of a party. Now what is process ? * Theword has a variety of meanings depending on the context in which it
SJA&KTATTAKIE, C.J.—Wider amalilake v. Detrain de Silva
99
occurs. For the present purpose it is necessary to ascertain its meaningin the Civil Procedure Code. The word is not defined therein. Itsmeaning has therefore to he gathered from the context in which it occurs
e., the whole Code with such assistance as may be gained from standardlaw dictionaries. In Sweet’s Law Dictionary it is stated :** In civil
actions process is of two kinds : (i) Against a defendant, and this againis of two kinds, viz. (a) process to compel him to appear, now consistingof a writ of summons ; and (6) process of execution, by which thejudgment, decree etc. is executed or carried into effect; (ii) Processagainst persons not parties to the action e.g. process to summon jurors,witnesses etc. ” In our Code the summons to a defendant to appear andanswer the plaint is treated under a separate heading : tc On the Issueand Service of Summons ”, and the associated provisions are groupedunder a distinct Chapter (VIII). Section 29 cannot apply to a summonsto a defendant to appear and answer the plaint not only because at thestage of the issue of summons on the defendant there would ordinarilybe no proctor appointed by him to represent him in the action, but alsobecause a summons to defend in Form No. 16 requires the personalappearance of the party defendant. Apart from those considerationssection 59 requires that such a summons must be served on the defendantpersonally. A clue as to the sense in which the word “ process ” is usedin the Code is to be found in Chapter XXIII. Having referred in section
to writs or warrants to levy money or to take any person in arrest,or to detain any person in custody, or to deliver possession of property,or for the sequestration of any property, the Code refers in section 356to “ all processes of court not being writs, or warrants directed to theFiscal or other person for execution and all notices and orders requiredby this Ordinance to be given to or served upon any person Thelatter section indicates unmistakably that “ notices and orders ” requiredby the Code to be given to or served upon any person do not come withinthe scope of the expression ” process The distinction that section
makes between ** process ” and “ notices ” is consonant with thebasic concept of process in Civil Procedure. Process is a mandate,summons, or writ issuing from a court. Here we are concerned with anotice required by the Code to be given not even by the court but by theappellant to the respondent. Such a notice not being a " process ”section 29 would have no application. Section 356 requires that unlessthe court directs otherwise such a notice must be issued for service to theFiscal under a precept of the court as in the case of a summons to a de-fendant and sections 59 to 70 both inclusive are made applicable, so faras practicable, to the service of such notices. As a notice required bysection 756 to be given to the respondent is not a process such a noticemust be served on the respondent personally as in the case of a summonsto the defendant in an action. The service on the proctor of the 3rdrespondent in the instant case is not authorised by the Code. The 3rdrespondent has therefore not been given the notice required by the section.Apart from the fact that a notice required to be given by section 756 tothe respondent is not a process, that section itself contains an indication
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BASNAYAKE, C.J.— Wideramatilake v. Darsin de Silva
that only one of the notices required, to be given thereunder may be givento the respondent’s proctor. It provides expressly that the notice of appealtogether with a copy of the petition of appeal may be served on the res-pondent or his proctor. The rule of construction where there is expressmention of one thing is expressio unius est exclusio alteriv^s. By implica-tion therefore the notice of tender of security must be addressed to andserved on the respondent personally. Forms 126 and 127 are also de-signed to give effect to what section 756 provides for. The heading ofthe former is- –
" FORM OF NOTICE TO RESPONDENT THAT APPELLANT WILLTENDER SECURITY IN APPEAL, &C.
(Head with the title of the action in the lower court)
To {respondent) **.and of the latter
“ FORM OF NOTICE OF APPEAL TO BE SERVED ONRESPONDENT OR HIS PROCTOR
(Head as in last form)
To (party respondent or his Proctor).”
There are decisions of this court which hold that a notice to the res-pondent under section 756 may by virtue of section 29 be served on hisproctor. In those cases it has been assumed that “ process ” includes“ notice ” and the distinction which the Code makes between “ process ”and “ notice ” has not received the attention that it deserves. InPerera v. Hendrick 1 which is the decision of a single judge section 356has not been referred to at all. In the next case of De Silva v. Francina-hamine 2 it appears to have been assumed that “ process ” includes“ notice ” and the distinction that the. Code makes between “ process ”and “ notice ” has not been given effect to. In the recent case of theUrban Council of Dehiwela-Mount Lavinia v. P. Andy Silva 3 my brotherde Silva observed :“ In my opinion it is sufficient if the notice of
tendering security is served on the respondent’s proctor in view of theprovisions of section 29 C. P. C. ” His attention does not appear tohave been drawn by counsel to the basic concept of “ process ” and howin section 356 the Code preserves its basic meaning by distinguishing itfrom “ notice Nor has bis attention been drawn to the fact that wherethe Legislature intended that service on the proctor was sufficient itexpressly so provided both in section 756 and in the relative form in thecase of the notice of appeal. In the absence in the Civil Procedure Codeof a definition of “ process ” so as to embrace notices and such like therules of interpretation of statutes require that the word should be giventhe meaning it bears in the context of the Code. In that context it doesnot include “ notice ”,
{1906) 1 A. G. R. 25 at 27.* {1939) 41 N. L. R. 191.
• {1956) 57 N. L. R. 562.
1
WEERASOO RXYA, J.—Siritoardena v. Charles Singho
101
It is clear therefore that the requirement of section 756 as to thegiving of notice of the tendering of security to the 3rd respondent hasnot been complied with in the instant case.
The learned District Judge is right in holding that the appeal hadabated.
The application is refused with costs.de Silva, J.—I agree.
Application refused.