103-NLR-NLR-V-41-WIJESINGHE-HAMINE-v.-EKANAYAKE-et-al.pdf
Wijesinghe Hamine v. Ekanayake.
415
1940Present: Howard C.J. and Soertsz J.
WIJESINGHE HAMINE v. EKANAYAKE et al.
4—D. C. Matara, 11,374.
Privy Council—Application for conditional leave—Notice by post—Notice inletter addressed to another—Sufficiency of notice—Notice to all partiesnecessary—The Appellate Procedure (Privy Council) Order, 1921, r. 5.Where notice of an application for conditional leave to appeal to thePrivy Council was given by a letter containing the notice, sent throughthe post to the party to an address where the party was known to bestaying, and where there was no denial of its receipt by the party,—
Held, that the notice was sufficient to comply with the requirements ofrule 5 of the Appellate Procedure (Privy Council) Order, 1921.
Joseph v. Sockalingam Chetty (32 N. L. R. 59) followed.
Where notice to a party was enclosed in a letter addressed to anotherparty to whom also notice had to be given,—
Held, that such notice was insufficient.
Fradd v. Fernando (36 N. L. R. 132) applied.
Held further, that notice must be given to all the parties in whosefavour the judgment appealed against was given.
T
HIS was an application for conditional leave to appeal to the PrivyCouncil.
H. V. Perera, K.C. (with him N. E. Weerasooria, K.C., and C. J. Rana-tunge), for the plaintiffs-respondents.—Under rule 5 of the AppellateProcedure (Privy Council) Order, 1921, service of notice has to be effectedon the opposite party personally. Personal notice means the actual
416
HOWARD C.J.—Wijesinghe Hamine v. Ekanayake.
handing over of a copy of the notice to the party required to be noticed—Piyadasa v. HewavitaraneGooneratne v. The Bank of ChettinadFraddv. Fernando.’■’
N. K. Choksy (with him Miss Mehta and M. Ratnam), for the petitioners,defendants-appellants.—A despatch of a copy of the notice by registeredpost is sufficient—Joseph v. Sockalingam Chetty.' There can be no doubtthat the notice was duly served on the first plaintiff. There is no affidavitfrom her denying receipt of notice. As regards the second plaintiff, therewas no need to serve any notice at all on him. He was joined merely asthe husband of the first plaintiff, and is not a necessary party—GaintotaNona v. Manuel *:The words “ opposite party ” in rule 2 of the schedule
• to Appeals (Privy Council) Ordinance, Cap. 85, contemplate a party whowould be prejudicially affected by the appeal. The meaning of “ neces-sary party ” is considered in Official Trustee of Bengal v. Benode BehariGhose Mai6 Ibrahim v. Beebee et al. Fernando v. Fernando.'
A definition of personal service as in section 59 of the Civil ProcedureCode does not appear in Rule 5a of the Appellate Procedure (PrivyCouncil) Order, 1921.
H. V. Perera, K.C., in reply.—Joseph v. Sockalingam Chetty {supra) mayhelp the petitioners, but it does not carry them all the way. In that partic-ular case, the circumstances were different from those in the present case.
If there are two respondents, both have to be given due notice.“ Opposite party ” would include the second respondent. The appellantsare asking for a complete reversal of the Supreme Court decree wherecosts were awarded to both the plaintiffs. Further, it has been held thatwhere a party has been made respondent, he should be given notice eventhough no relief is claimed against him—Suppramaniam Chettiar v.Senanayake et al“
*Cur. adv. vult.
February 22, 1940. Howard C.J.—
This is an application by the defendants for conditional leave to appealto the Privy Council against a judgment of the Supreme Court datedNovember 28, 1939. Under rule 2 in the schedule to the Appeals (PrivyCouncil) Ordinance the applicant for leave to appeal shall within fourteendays from the date of the judgment give the opposite party notice of theintended application. Rules 5 and 5a of the Appellate Procedure(Privy Council) Order, 1921, made under section 4 of the Ordinance,makes provision for the service of notices. Rule 5 provides that aparty who is required to serve any notice may himself serve it or cause itto be served, or may apply by motion in Court before a single Judge foran order that it may be issued by and served through the Court. Rule5a provides that if after reasonable exertion it is found that service cannotbe duly effected upon a party personally or upon his proctor empowered toaccept service thereof, it shall be competent for the Court which mayconsist of a single Judge, on being satisfied by evidence adduced before it
1 (1936) 40 N. L. R. 421.1 (1936) 38 N. L. R. 289.3 (1934) 36 N. L. R. 132.* (1930) 32 N. L. R. 59.
(1927) 8 C. L. Rec. 178.
/. L. R. (1924) 51 Cal. 943.’ (1916) 19 N. L. R. 289.
8 (1906) 9 N. L. R. 129.
(1939) 16 C. L. U'. 41.
HOWARD C.J.—Wijesinghe Hamine v. Ekanayake.417
that reasonable exertion to effect service has been made and that servicecannot be effected, to prescribe any other mode of service. In this casethe defendants did not choose to effect service through the Court. OnDecember 11, 1939, the last day but one for effecting service according toan affidavit made by the second defendant a notice was posted by expressdelivery to the first plaintiff addressed to her c/o Hayes Jayasundera,Light House street, Galle, her son-in-law, where according to such affidavitthe first plaintiff was alleged at the time to be staying although it was nother permanent address. The notice contained an intimation of thedefendants’ intention to appeal to the Privy Council against the saidjudgment of the Supreme Court. The second defendant in her affidavitalso states that in the same envelope she enclosed a copy of the said noticeaddressed to the second plaintiff as the husband of the first plaintiff as wellas two copies of the petition filed in the application for conditional leaveto appeal, that is to say, one copy for each of the plaintiffs.
It was contended by Counsel for the plaintiffs that service in the mannerdescribed in the affidavit of the second defendant was not in accordancewith the rules to which I have referred, that service of the notice had notbeen properly made in the case of either of the plaintiffs and, with regardto the second plaintiff, not even an attempt at service had been made.The question as to whether the mode of service adopted in the case of thesecond plaintiff is an adequate compliance with the rules must be consi-dered in the light of two decisions which have been cited in this case.
In Fradd v. Fernando' the interpretation of rules 5 and 5a read inconjunction with rule 2 in the schedule to the Ordinance was consideredby a Supreme Court Bench constituted by Macdonell C.J. and Dalton J.The Court- held that service upon a “ party personally ” meant the partywho is to be made a respondent, him or herself, and that it does not in-clude an attorney under a power of attorney. In an Election Petition,Piyadasa v. Hewavitame 5 it was held that service on a person not dulyappointed as the agent of the respondent did not constitute service ofnotice on the respondent. Applying these two cases and giving thephraseology employed in rules 5 and 5a its ordinary meaning, I think it •is clear that adequate service of the notice on the second plaintiff has notbeen effected.
The question as to whether tne mode of service adopted in the case ofthe first plaintiff is adequate is not so easy to answer. The cases of Fradd v.Fernando 1 and Piyadasa v. Hewavitame 3 were decided on the ground thatthe service had been effected not on the party himself, but on a differentperson alleged to be the agent of such party. Neither case dealt withwhat actual steps were necessary when an attempt was made to serve theparty himself. There is no doubt in this case that a letter containing thenotice addressed to the party at an address where she was known to bestaying was an attempt to serve such party. That party has notadopted the course of denying by affidavit, as she might have done, thatshe received the letter or that she was staying at that address. But arethe requirements of the law with regard to service thus satisfied ? Thecase of Gooneratne v. Bank of Chettinad 3 would seem to indicate that they1 36 -V. L. R. 132.*40 N. L. R. 421.
16J iS.B 17627 (5/52)
3 10 C. L. R. 13.
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HOWARD C.J.—Wijesinghq Hamine v. Ekanayake.
are not. In that case it was alleged by affidavit that the proctor for therespondent posted by registered post to an insolvent under the InsolvencyOrdinance a letter, a copy of which was filed with the affidavit, and that areply had been received from another proctor referring to this letter whichhad been addressed to the appellant and sending a cheque for Rs. 100 onaccount, and that the cheque had been returned. 'The Court held thatthis did not amount to personal service and referred to a dictum ofParke B. in the English case of Goggs v. Hunt intower1 in which the lattersaid as follows : —
“ In consequence of those decisions the Judges have come to theconclusion that, in future, there shall be no equivalent for personalservice.”
Accepting this dictum Mr. Justice Akbar held that personal servicemeans an actual service on the person affected, by a duly constitutedagent who hands the document into the hands of the person so affected.If this is the law, it is obvious that the service in this case effected on thefirst plaintiff falls short of what is required. In the case of Joseph v.Sockalingam Chetty ‘ which was not referred to in the report of Gooneratnev. Bank of Chettinad (supra) a different view of the law was taken by theSupreme Court. That case, like the present one, was before the Cgiirt withreference to the adequacy of service of a notice on an application for leaveto appeal to the Privy Council under rule 2 of Schedule, Appeals(Privy Council) Ordinance. There was proof that a letter containing anotice had been handed into the post office for transmission. Also, as inthis case, there was no denial of its receipt by the respondent'. The Courtconstituted by Garvin A.C.J. and Jayewardene J., held that in thosecircumstances they are entitled to presume that a letter which they weresatisfied was properly directed and is proved to have been handed to thepostal authorities for transmission reached its destination in due courseand that it was received by the person to whom it was addressed. They,therefore, held that there had been a sufficient compliance with the require-ments of rule 2 of the Ordinance. I find it a matter of some difficultyto distinguish the facts of Joseph v. Sockalingam Chetty (supra) fromthose of the present case and being an authority on the rules governingleave to appeal to the Privy Council I am of opinion that it must befollowed. . In these circumstances service on the first plaintiff was good.
This finding with regard td service of the notice on the first plaintiffdoes not dispose of the case. The judgment of the Supreme Court fromwhich leave to appeal is requested was in favour of both plaintiffs. Thenotice served or attempted to be served was addressed to both plaintiffs.Rule 2 of the Schedule to the Ordinance provides that the applicant shall,within fourteen days from the date of such judgment, give the “ oppositeparty ” notice of such intended application. Inasmuch as only the firstplaintiff has been given notice it is obvious that compliance has not beenmade with the provisions of the rule. Counsel for the applicant hascontended that as the second plaintiff has not executed the deed, he isnot a necessary party to the appeal. I do not consider there is anysubstance in this contention. “ Opposite party ” must imply all the112 M.db W. 503.* 32 N. L.R. 59.
SOERTSZ J.—de Saram v. de Silva.
419
parties in whose favour the judgment appealed against was given. Inthis connection I would refer to the judgment of the Full Bench inIbrahim v. Beebee et al.1 and Supprarhaniam Chettiar v. Senanayake andlothers In the latter case de Kretser J. held that even when partiesagainst whom no relief is claimed are made respondents to an appealnotice of security should be given to them. For these reasons I am . ofopinion that notice has not been. served on the opposite party. Theapplication must, therefore, be dismissed with costs.
Soertsz J.—I agree.
Application dismissed.