008-SLLR-SLLR-1992-V-1-PETER-SINGHO-v-.COSTA.pdf
PETER SINGHO
v.COSTA
COURT OF APPEALANANDACOOMARASWAMY, J. &
GUNASEKERA, J.
A. APPEAL NO. 353/85(F)
C. COLOMBO NO. 4969/RE
31 OCTOBER 1991 and 14 NOVEMBER 1991
Civil Procedure – Computation of time limit for appeal – Hypothecation of securityfor costs – Civil Procedure Code, Sections 754, 755, 757(1).
Held:
In computing the time limits for filing the notice of appeal and petition ofappeal, only the date on which the judgment was pronounced can be excluded.
Failure to tender bond hypothecating the security for costs along with thenotice of appeal will be excused if the'explanation for the default is satisfactory,but illness of the appellant four days after the date on which the notice of appealwas presented is not a satisfactory explanation. Such failure is fatal.
Cases referred to:
Wickramasinghe v. De Silva (1978/9) 2 Sri LR 65.
Boyagoda v. Mendis 30 NLR 321. •
Sri Lanka State Trading Consolidated Export Corporation v. Dharmadasa(1987) 2 Sri LR 233.
Perera v. Perera (1961) 2 Sri LR 4T42.
Martin v. Suduhamy SC 33/90 – S.c! Minutes of 20.01.1991, (1990) BAURep. Vol. iii, Pt. ii P. 8.
Nanmuni Hanea Babi Thabrew v. Kosgoda Vajiragnana Thero S.C. No. 27/89S.C. Minutes Of 25.6.1991.
Abdul Cader v. Sittinisa 52 NLR 588.
Rustom v. Hapangama 1978/9 2 Sri LR 225.
APPEAL from judgment of District Court of Colombo.
K. Balapatabendi for appellant.
J. C. T. Kotaiawaia for respondent.
Curadvvult.
6th February,1992.
ANANDACOOMARASWAMY, J.
This is an appeal from the judgment of the Learned District Judgeof Colombo dated 30.05.1985.
The Learned Counsel for the ftaintiff-Respondent (hereinafterreferred to as respondent) raised two preliminary objections namely:-
Security for costs has not been hypothecated.
Appeal is time-barred.
The judgment was delivered on 30.05, 1 985 and notice of appealwas tendered on 07.06.1985. The petition pi appeal was tendered on30.07.1985, which is clearly out of time by one day.
The Learned Counsel for the Defendant-Appellant (hereinafterreferred to as Appellant) relied On the decision in the case ofWickramasinghe v. De Silva(,) where Soza^ J., stated in the course ofhis judgment that the said judgment had been delivered on11.05.1978 and that the last date for filing, the petition of appeal was11.07.1978. According to the Counsel[.for the Appellant this judgmentclearly showed that both terminal dates were excluded in countingthe 60 days to file petition of appeal. This was the view of theSupreme Court in the case of Boyagoda v. Mendis (z) according towhich one extra day was not considered as out of time, which wasallowed as a matter of practice. That was the decision of the formerSupreme Court which took the view that due to long practice oneday’s extension had been allowed in the computation of the timeallowed for fifing of the petition of appeal. This decision wasconsidered by the present Supreme Court in the case, of Sri LankaState Trading Consolidated Export Corporation v. Dharmadasa(3). TheSupreme Court is of the view that there is no such practice as far asthis section is concerend as this provision was not incorporated in theearlier Civil Procedure Code. In that case the Supreme Court heldthat the notice of appeal presented on Monday 19.06.1987 onjudgment pronounced on 31.05.1987 was out of time as it was notfiled on 16.06.1987 which was the due date. Between the twoterminal dates namely 31.05.1987 and 19.06.1987, there was nopublic holiday but 4th and 11th June were Sundays, 17th June was aSaturday (non-working day) and 18th June was a Sunday.
The Learned Counsel for the Respondent relied on the decision inthe case of Perera v. Perera <4) where the Court of Appeal (Soza, J.
with Victor Perera, J. agreeing) stated “Only the date on which thejudgment was pronounced can 6e excluded – see sections 8(3) and14(a) of the Interpretation Ordinance”. The Court of Appeal, wasconsidering section 755(3) of the Civil Procedure Code relating to thefiling of the petition of appeal. According to this provision the petitionof appeal must be filed within 60 days from the date of thejudgment. The provisions' relating to notice of appeal and petition ofappeal are not sections under the new Civil Procedure Code. Theseare sections 754 and'755, and the decision in Boyagoda v. Mendis(supra) was under jthje old Civil Procedure Code No. 2 of 1889 asamended by later' Ordinance,and Acts (Chapter 101 of theLEGISLATIVE ENACTMENTS-OF CEYLON 1965 Revised Edition). The•relevant provisions are section 754(1) and section 754(2), accordingto which petition of appeal should be presented to the court of firstinstance within a period of ten (10) days from the date of decree ororder, exclusive of the day of, that date itself and of the day when thepetition was presented and of Sundays and public holidays. While asimilar provision ;fs available and applicable to the notice of appeal inthe present Civil Procedure Code, there is no provision for notice ofappeal in the. earlier .Civil Procedure Code. The provision relating topetition of appeal is entirely a new one in the new Civil ProcedureCode compared to the one in the old Civil Procedure Code. Thereforethe decision in Boyagoda v. Mendis (supra) is not applicable tocases falling under the new Civil Procedure Code and the decision inSri Lanka State Trading Consolidated Export Corporation v.Dharmadasa (supra) is applicable to notice of appeal and alsoapplicable mutatis mutandis to petition of appeal. Accordingly thepetition of appeal presented in this case is clearly out of time.
As regards the second objection that the security for costs had notbeen hypothecated, the affidavits filed by the Appellant and hisAttorney-at-Law setting out the reasons for the failure to perfect thebond, do not give satisfactory explanation for not tendering the bondalong with the notice of appeal. The reason given is that theAppellant was ill not from the day on which the notice of appeal waspresented, but for two (2) weeks from a day four days after the dateon which the notice df appeal was presented.
In the- case of Martin v. Suduhamy® the Supreme Court is of theview that, in appropriate cases the court may consider whether thereis an explanation for default and if the explanation is satisfactory,grant-relief in a fit case.
In the case of Nanmuni Hanea Babi Thabrew v. KosgodaVajiragnana Theroi6) the Supreme Court granted relief on the basisthat omission to comply with section 757(1) was'not wilful and thatthe sum involved was so small that the Respondent could hardlyclaim to have been materially prejudiced. In that case the registeredAttorney-at'Law failed to tender the bond in the District Court, andwhile the record was in the Court of Appeal the Attorney-at-Law died.
In the instant case, as the explanation is not satisfactory the failureto comply with section 757(1) of the Civil Procedure Code is fatal andas such the appeal should be rejected, on this'ground also.
The learned Counsel for the appellant invited uf to consider theappeal on the merits of the case, despite the preliminary objectionsin this appeal. He relied on the decision in the case of Abdul Cader v.Sittinisa{7) where the Supreme Court was of the view that where anappeal did not conform to Civil Appellate Rules, to allow the matter tobe heard in Revision, as the Respondent had not been prejudiced.Such revisionary powers could be exercised only in exceptionalcases (Rustom v. Hapangama,8)). We are not unmindful of thesedecisions. We have perused the proceedings and the judgment ofthe learned District Judge and we find no reasons to interfere with hisjudgment and we find no exceptional circumstances to act inrevision.
For the foregoing reasons we dismiss the appeal with costs.
GUNASEKERA, J. – / agree.
Appeal dismissed.