011-SLLR-SLLR-1978-79-V2-Wickremasinghe–v.-de-Silva.pdf
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Wickremasinghe v. de Silva (Soza, J.)
65
Wickremasinghe
v.
de Silva
COURT OF APPEAL.
SOZA, J. AND ATUKORALE, J.
C. A. APPLICATION NO. 909/78—D.C. BALAPIUYA l/1.
SEPTEMBER 18, 1978.
Civil Procedure Code, sections 754 (4), 755 (3), 759 (2)—Petition ofappeal filed out of time—Provisions of section mandatory—DistrictCourt has no power to extend time—Whether relief could be given undersections 759 (2) or 765.
Held
The provisions of section 755 (3) of the Civil Procedure Code whichrequires the petition of appeal to be filed within sixty days from thedate of judgment are mandatory. Accordingly where a petition hadbeen filed after the period of sixty days had lapsed the learned DistrictJudge was correct in rejecting such a petition. The notice of appeal, too,lapses for want of compliance with the subsequent requirement andshould be rejected. This was also not a case in which relief should begiven under the provisions of section 759(2), specially as there was noaverment regarding material prejudice to the respondent in the petitionand as the procedure set out in Chapter LX of the Civil Procedure Codewas available to the petitioner.
Cases referred to
Liverpool Borough Bank v. Turner, (1860) 2 De G.F. & F. 502 ; 30L.J. Ch. 379.
Howard v. Bodington, (1877) 2 P.D. 203; 42 J.P. 6.
Barker v. Palmer, (1881) 8 Q.B.D. 9 ; 45 L. T. 480; 51 L.J.Q.B. 110.
Fox v. Wallis, (1876) 2 K.B.D. 45; 35 L.T. 960.
Aspinall v. Sutton, (1894) 2 Q.B.D. 349.
Secretary of State for Defence v. Warn, (1968) 3 W.L.R. 609 ; (1968)
2 All E.R. 300 ; 52 Cr. App. R. 336.
Chalonona v. Weerasinghe, (1967) 70 N.L.R. 46.
Sameer. v. Abeywickrema, (1963) 64 NJLJl. 553 ; 63 C.L.W. 97;(1963) A.C. 597; (1963) 3 All E.R. 382; (1963) 2 W.L.R. 1114.
De Silva v. Seenathumma, (1940) 41 N.L:R. 241; 16 C.L.W. 105.
APPLICATION to revise an order of the District Court, Balapitiya.
B. Bodinagoda, for the defendant-petitioner.
N. R. M. Daluwatte, for the plaintiff-respondent.
Cur adv. quit.
October 27, 1978.
SOZA. J.
This is an application for revision of the order made by thelearned District Judge refusing to accept the petition of appealfiled by the petitioner in this case. Judgment had beendelivered on 11th May, 1978. On 23rd May, 1978, (he petitionerwho was the second defendant in the case filed notice of appeal.The last date for filing the petition of appeal was 11th July, 1978,but the petition was filed only on 17th July, 1978.
1*—A 56828 (81/05)
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(1978-79) 2 S.L.R.
Under section 754 (4) of the Civil Procedure Code notice ofappeal should be presented within a period of 14 days from thedate when the decree or final order appealed against was pro-nounced, exclusive of the day of that date itself and of the daywhen the petition is presented and all Sundays and publicholidays. If these conditions are not fulfilled, the Court isobliged to refuse to receive the appeal. Subsection (3) ofsection 755 states that the appellant shall within 60 days fromthe date of the judgment or decree appealed against present tothe original Court a petition of appeal setting out the circums-tances out of which the appeal arises and the grounds of objec-tion to the judgment or decree appealed against. No provisionhas been included for the District Judge to extend the time forfiling the petition of appeal. Subsection (4) states that upon thepetition of appeal being filed, the Court shall forward it to theSupreme Court. Therefore it is argued that a petition filed outof time cannot be forwarded.
It is submitted that the second defendant-petitioner was pre-vented by circumstances beyond his control from filing thepetition of appeal within the period stipulated by section 75^ (3)because his Attorney-at-Law Mr. Asoka de Silva was hospi-talised in the General Hospital, Colombo, with a serious injurysustained as a result of a gunshot. The petitioner also relieson section 759 (2) which states that in the case of any mistake,omission or defect on the part of any appellant in complyingv/ith the provisions of the sections going before it the SupremeCourt may if it should be of opinion that the respondent hasnot been materially prejudiced grant relief on such terms as itmay deem just.
The main question for determination is whether the provi-sions of subsection (3) of section 755 of tlhe Civil ProcedureCode are directory or mandatory. Subsection (3) of section 755confers private rights and it is a widely accepted canon of inter-pretation that statutes conferring private rights are in generalimperative. As Bindra states in his work Interpretation ofStatutes, 6th ed., 1975 at p. 599:
“ Statutes conferring private rights are in general cons-trued as being imperative in character and those creatingpublic duties are construed as directory ”.
It must however be recognised that there are no inflexibletests by which one may distinguish imperative provisions fromdirectory provisions. As Lord Campbell pointed out in LiverpoolBorough Bank v. Turner (1) :
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“No universal rule can be laid down for the constructionof statutes; as to whether mandatory enactments shall beconsidered directory only or obligatory with an impliednullification for disobedience. It is the duty of courts ofjustice to try to get at the real intention of the legislatureby carefully attending to the whole scope of the statute tobe construed
It would be useful in this connection to refer to the case ofHoward v. Bodington (2) where this question was considered.This was a case under the Public Worship Regulation Act 1874.This statute provided that a bishop to whom a representationof the acts or omissions of any incumbent within his diocese hasbeen sent, should, unless he be of opinion after considering allthe circumstances of the case that proceedings should not betaken on the representation, within twenty-one days of thereceipt of the representation transmit a copy thereof to theperson complained of, and the representation itself to the arch-bishop,'who had forthwith to require )the Judge to hear thematter of the representation. Lord Penzance delivering thejudgment of the Court of Arches in this case went on afterreferring to Lord Campbell’s dictum to lay down some guide-lines at page 211: .
“I believe, as far as any rule is concerned, you cannotsafely go further than that in each case you must look tothe subject matter; consider the importance of the provisionthat has been disregarded, and the relation of that provisionto the general object intended to be secured by the Act ;and upon a review of the case in that respect decide whetherthe matter is what is called imperative or directory ”
In the case under reference the person complained of hadreceived his copy after a delay of a month after the lapse of21 days.
Lord Penzance said with reference to this at page 213:
“If we desert the twenty-one days the question ariseshow long may the matter hang over the head of therespondent ? ”
On the scope of the enactment His Lordship stated as followsat page 214:
“ I think nobody can doubt that of all the important stepsin the suit there is no step so important as that whichregards the service of the first proceedings on therespondent ”,
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His Lordship observed that the legislature had chosen toprescribe the particular steps which dhould be taken andminutely to tie the parties down to a particular time. Of thesethe service was the very first step that really gave life andvigour to the suit. The respondent had to be brought into Courtat the time within which the statute says he shall be broughtinto Court. The statute had prescribed a particular time andthe Court is not at liberty to cast the time mentioned asideupon any speculation as to the possible reason why that parti-cular provision was adopted. If the Court takes the view thatthe time could be extended it would be very difficult to knowwhere to stop in future and very difficult to work the Act in theway in which the legislature intended it to be worked.
These points made in Howard v. Bodington apply with equalforce to the case before us. If the time is to be extended, atwhat point do we stop ? Of the steps in procedure laid downfor filing appeals the petition is just as important as the notice.It is the petition of appeal in fact that gives the appeal its fleshand blood. It is on the substance of the appeal that the respon-dent has to get ready to meet his adversary.
Enactments regulating the procedure in Courts are usuallyconstrued as imperative—see Maxwell on the Interpretation ofStatutes, 12th ed. (1969), p. 320. In Maxwell on the Interpre-tation of Statutes, 11th ed. (1962), p. 367 the rule is explainedthus :
“If, for instance, a right of appeal from a decision begiven with provisions requiring the fulfilment of certainconditions, such as giving notice of appeal and entering intorecognisances, or transmitting documents within a certaintime, a strict compliance would be imperative and non-compliance would be fatal to the appeal
The interpretation of a statutory provision in regard to timecame up in the case of Barker v. Palmer (3). This case con-cerned Order VIII, rule 7 of the County Court Rules 1875 whichran as follows :
“The summons in an action brought to recover landsshall be delivered to the bailiff forty clear days at leastbefore the return day, and shall be served thirty-five cleardays before the return day thereof
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The summons however was delivered to the bailiff thirty-nineclear days, and the bailiff served it upon the defendant thirty-eight clear days, before the return day. Thus the delivery ofthe summons was out of time by one day while the service ofthe summons was within time. Grove, J. stated as follows atpages 10 and 11:
“The rule is that provisions with respect to time arealways obligatory unless a power of extending the time isgiven to the Court and there is no such power here ”•
Grove, J. went on to point out that the word “ shall ” was usedwith respect both to the time <of delivery to the bailiff and ofthe service on the defendant and held that the words of therule were peremptory, and gave no more discretion with respectto the delivery, to the bailiff than with respect to the service ofthe summons.
In another case, that of Fox v. Wallis (4), the Court of Appealheld that a notice of motion of appeal from a decision in cham-bers given on the eighth day after the date of the decision wasout of time as according to the statute the notice had to be givenso that the motion could be heard within eight days after thedecision appealed against was made. In the case of Aspinall v.Sutton (5) it was held that as the statute governing thematter stated that upon an appeal by way of a case statedagainst a decision of justices, the appellant must, within threedays after receiving the case, transmit it to the Court and therehad been a delay .of one day in lodging the case at the CrownOffice, the appeal should be rejected. In the case of Secretary ofState for Defence v. Warn (6) the House of Lords held thatprocedural sections are usually mandatory.
On the question whether the provisions of subsection (3) ofsection 755 are imperative or not I was referred by learnedcounsel for the respondent to the unreported case S.C.No. 382/77 (F), D.C. Matara No. 8585/P where the Supreme Courtrejected an appeal on the ground that notice of appeal had beenfiled one day out of time. Learned counsel for the petitionersubmitted that in that case not only was the appeal filed outof time but security for costs in the appeal had not been depo-sited within the prescribed time. Nor had the bond to prosecutethe appeal been perfected. It was because of these reasons thatthe Court had rejected the appeal. On behalf of the petitionerit has been pointed out that the appeal was rejected onlybecause the notice of appeal had been filed out of time. In thiscase the point was not argued and we will therefore not relyon it.
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In the case of Chalonona v. Weerasinghe (7) the appeal hadbeen filed one day late. Holding that the Supreme CourtAppeals (Special Provisions) Act, No. 4 of 1960, enabled reliefto be granted only to appeals filed within ttie prescribed time,Tambiah, J. rejected the appeal-
Subsection (3) of section 755 of the Civil Procedure Codewhich requires the appellant to present to the original court apetition of appeal within sixty days in couched in imperativeterms. This is a new provision and is clearly mandatory. Thefiling of the petition of appeal is an essential concomitant ofthe filing of Uhe notice of appeal. Both steps are mandatory andimperative steps in Lodging an appeal. Until these steps aretaken as directed by the Civil Procedure Code the Judge cannotcomply with subsection (4) of section 756. The learned DistrictJudge was therefore right in rejecting the petition of appeal.The notice of appeal too lapses for want of compliance with thesubsequent requirements and should now be rejected.
We will turn to the question whether it is open to this Courtto grant relief under the provisions of subsection (2) of section759. This subsection is substantially similar in terms to sub-section (3) cf section 756 of the Civil Procedure Code as itstood on 31st December, 1973 before the Administration ofJustice Law, No. 44 of 1973, became operative. Section 759 (2)however refers to mistakes, omissions and defects in complyingwith the provisions of the ‘ preceding sections ’, that is, section755 to 758 while subsection (3) cf section 756 refers to mistakes,omissions or defects, in complying with the provisions ofsection 756 itself.
Subsection (3) of section 756 was engrafted into the CivilProcedure Code by tine amending Ordinance No. 42 of 1921 andwas the subject of conflicting interpretations down the years-The interpretation may be regarded as having been finallysettled by the decision of the Privy Council in Sameen v. Abey-wickrema (8). In the judgment of the Board delivered by theLord Chancellor subsection (3) was held to apply to all theprovisions of section 756 in relation to any mistake, omission ordefect—see page 562. At the same page the Lord Chancellorstated as follows :
“ In their Lordship’s view the Supreme Court is given bythis subsection the power to grant relief on such terms asit may deem just where there has been a failure to comply
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with an essential requirement of the section. The onlylimitation imposed by ttie subsection is that the court hasnot the power to do so unless it is of the opinion that therespondent has not been materially prejudiced”.
In view of the permissive word ‘may’ used in the section itshould be observed that the discretion to refuse relief is stillin the Court even if there is material prejudice:
In the petition before us there is nothing alleged regardingmaterial prejudice to the respondent though in the writtensubmissions there is reference to this. As Lord Penzance said inHoward v. Bodington (su-pra) the continuance itself of a suitis a harm and does cause prejudice. The disabilities of thepetitioner are not what the court is called upon to considerwhen applying this subsection but material prejudice to therespondent.
As Soertsz, J. speaking of the imperative and peremptoryprocedural requirements of section 756 said in the DivisionalBench case of de Silva v. Seenathumma (9) :
“Such requirements must be put before the interests ofindividuals and Courts have no power to absolve fromthem
It may be added that there is statutory provision for filing ofpetitions of appeals notwithstanding lapse of time. Perhapsthe petitioner could advise himself as to whether he shouldproceed under Chapter LX. In our view subsection (2) ofsection 759 cannot be used to rescue the petitioner especially asthe procedure set out in Chapter LX is available.
The learned District Judge has quite rightly interpreted hisfunctions under subsections (3) and (4) of section 755 of theCivil Procedure Code. Neither he nor we have power to extendthe liberal time the legislature has fixed for filing the petitionof appeal. Parties should not wait till the last moment and thencomplain when they are caught out on time.
We dismiss the application with costs.
ATUKORALE, J.—I agree.
Application dismissed.