005-SLLR-SLLR-1998-1-NAJ-MUDEEN-AND-OTHERS-NATIONAL-DEVELOPMENT-BANK.pdf
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Sri Lanka Law Reports
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NAJ MUDEEN AND OTHERS
v.NATIONAL DEVELOPMENT BANK
COURT OF APPEALYAPA, J.(
GUNAWARDANA, J.
A/LA No. 142/97
C. COLOMBO 4787/SPLNOVEMBER 4 MM*. 1997.
Leave to appeal application not supported within the period stipulated in the ordermade by a Judge of the Court of Appeal in Chambers — Is it fatal?- InterpretationOrdinance S. 2 (b) and S. 14 (a) applicability.
The application for leave to appeal had been submitted to a Judge in Chambers,and he had made order on 23.7.1997, to support application in open court withintwo weeks. This matter had come up on 7.8.97, as the Counsel had wished tosupport this application on a latter date with proper Notice to the respondents…'it was put off.
The defendant-respondent contended that when the matter came up for supporton 7.8.97, the date was outside the time limit prescribed and in any event thedate 25.9.97 on which date the application finally came up for support was welloutside the prescribed period.
Held:
It is a common ground that the Court vacation commenced on 4.8.97 andlasted till 18.8.97. The application could not have been supported on 6.8.97,the last date of the relevant 14-day period, as the vacation court had notsat on that date. 2
(2)S. 8 (2) of the Interpretation Ordinance permits a thing or an act to bedone on the next day thereafter if the court is closed on that day. On7.8.97 (the next day) the petitioner had taken a step towards supportingit on a later date, with the express sanction or permission of the court.
Per Gunawardana, J.
'Court must not be content to take the path of least resistance by makinga mechanical order but must adopt a more interventionist judicial attitudeby making an order which represents or embodies the right mixture of lawand justice for the rigour and severity of the law untempered by good senseis not justice but somewhat akin to denial of it.*
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Naj Mudeen and Others v. National Development Bank
(U. de Z. Gunawardana, J.)
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S. 14 (a) of the Interpretation Ordinance does not apply to orders madeby court and will apply only in the case of enactments such as laws andacts or the like.
APPLICATION for Leave to Appeal.
K. N. Choksy PC, with Palitha Kumarasinghe for petitioner.
Romesh de Silva, PC, with Geethaka Gunawardene for respondent.
Cur. adv. vult.
November 5, 1997
U. DE Z. GUNAWARDANA, J.
This is an application for leave to appeal in respect of an order dated
made by the learned Additional District Judge. There isno dispute as to the fact that the said application had been madeto the Court of Appeal within the period stipulated by the law.
When this application came up for support on 25.09.97 the learnedPresident's counsel for the defendant-respondent has raised apreliminary objection, to wit: that the application for leave to appealhad not been supported within the period stipulated in the order madeby a Judge of the Court of Appeal in chambers and moved that thesaid application be rejected or not entertained.
This application for leave to appeal had been submitted to a Judgein chambers and he had made an order on 23.07.1997 in the followingterms: “support application in open court within two weeks from today".
Thereafter, the application for leave to appeal had come up beforea bench of two Judges of this court on 07.08.1997 and the proceedingsof that date reads thus: "Counsel wishes to support this applicationon a later date with proper notice to the respondents …"
The argument or the objection of the learned President's Counselfor the defendant-respondent to the hearing of this matter or, to putit more accurately, to the application being allowed to be supported,now, is two-fold: (a) that, when the matter came up before a benchof two Judges for support on 07.08.1997 that date, i.e. 07.08.1997was outside the time-limit of 14 days prescribed by the aforesaid order
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made in chambers on 23.07.1997; (b) in any event, the date, i.e.
on which date the application finally came up for supportwas well outside the period within which it had to be supported interms of the aforesaid order made by the Judge in chambers on23.07.1997.
To consider the above two objections in order: (a) it is commonground that the court vacation commenced on the 4th of August 1997and lasted till the 18th August. The sittings of the court was scheduledto be resumed (after the vacation) on the 18th of August 1997 whichdate fell on a poya day. It is also to be noted that the 2nd and 3rdof August being Saturday and Sunday, respectively, i.e. the two daysimmediately preceding the 4th (on which date the vacation com-menced) were also dates on which the court was “closed” and theapplication had come up for support on 07.08.1997 which date felloutside the 14 days, just by one day, which was the period stipulatedin the order made in chambers on 23.07.1997. But the applicationcouldn't have been supported on the 06.08.1997 which was the lastdate of the relevant 14-day period, as the vacation court had not saton that date. However, in this regard one cannot be oblivious to theeffect of the operation of section 8 (2) of the Interpretation Ordinancewhich is to permit a thing or an act to done on the next day thereafterif the court is “closed” on that day, i.e. on the day, that the acthad to be done. So that it was competent for the plaintiff-petitioner,or he was entitled, to support the application on 07.08.97 on whichdate the matter had come up for support in open court for the firsttime. Nor can it be strictly said that it was not supported on 07.08.1997,for the plaintiff-petitioner, to say the least, had taken a step towardssupporting it on a later date, be it noted, with the express sanctionor permission of the court.
However it is worth noticing that the judge's order made on
had not, apart from delimiting or indicating the period withinwhich the application has to be supported, appointed a particular orspecific date for that purpose; so that if the plaintiff-petitioner hadshown greater vigilance the application could have been supportedon any one of the 7 clear working days that had intervened betweenthe date of making the order in chambers and the date on whichthe period of holidays commenced. And even assuming for the sakeof argument, that the position that the application was not soughtto be supported till 25.09.1997 is correct-still it must be held that the
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Naj Mudeen and Others v. National Development Bank
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order made by the court on 07.08.1997 had permitted him (theplaintiff-petitioner) to do so, that is, to support it on the extendeddate which was 25.09.1997. Of course 25.09.1997 was not a dateappointed by the court for in terms of the order made on 07.08.1997the choice of the date was left to the counsel. It is worth repeatingthe relevant excerpt of the order in this context as well: "Counselwishes to support the application on a later date with . . . notice tothe respondent . . ."
This order clearly presupposes that the counsel for the plaintiff-petitioner had on 07.08.1997 made an application or moved the courtthat he be permitted or allowed to support the application for leaveto appeal on a later date which application (i.e. the application thathe be permitted to support on a later date) had been allowed by court.The court having, on 07.08.1997, allowed the counsel to support theapplication for leave to appeal on a later date, is now precluded fromholding that the application had not been supported within 14 daysin terms of the original order made in the chambers of the Judgeand refuse to hear the application on that footing, viz. that it had notbeen supported within 14 days – for by its order made on 07.08.1997the court must be taken to have clearly extended the period andpermitted the counsel (for the plaintiff-petitioner) to support the ap-plication for leave to appeal on a date of his (counsel's) choice sincethe court had omitted on 07.08.1997 to appoint a date for support.
The learned President's counsel for the plaintiff-petitioner had alsocontended that the terms in which the relevant order had been madeon 23.07.1997 was such as to exclude the day on which the saidorder was made inasmuch as the said order read thus: "support
application within two weeks from today". The said argument
is rested on section 14 (a) of the Interpretation Ordinance which statesthat for the purpose of excluding the first day of any period it issufficient to use the word “from” as has been done in the order directingthat the application be supported within 14 days. But this provision,i.e. section 14 (a) of the Interpretation Ordinance does not apply toorders made by courts and will apply only in the case of enactmentssuch as laws and acts or the like as had been explained in section2 (b) of the Interpretation Ordinance. It is to be observed that theperiod of 14 days had been appointed not by the law as such, butby the order of the judge made in chambers.
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In a way it is not wholly incorrect to say that the application forleave to appeal had not been supported within the 14 days in strictcompliance with the original order made on 23.07.1997. But as explainedabove the court vacation had, in some measure, come in the wayof obeying that order to the very letter. Anyhow, even if the periodoriginally appointed had not been extended – as, in fact, it had beendone – still laws or orders ought not be rigidly applied so as to preventa realistic solution. It is manifest that rigid adherence, now, to thestrict letter of the original order to support the application within 14days (even assuming that the period had not been extended as, infact, it had been done by the court on 07.08.1997) would undoubtedlycause great inconvenience, if not injustice, to the plaintiff-petitioner,even when the defendant-respondent cannot conceivably be preju-diced in the slightest degree on account of the application not beingso supported, i.e. within 14 days. Apart from submitting, that theapplication for leave to appeal had not been supported within 14 daysin strict conformity with the order made on 23.07.1997, the fact thatthe defendant-respondent had not complained of or pointed to anytangible prejudice that he would suffer, in consequence of theapplication being allowed to be supported after the lapse of 14 days,too, calls for remark.
It is also to be observed that whichever authority framed theselaws, it presupposes that consequences of non-compliance therewithare not specified because it was intended that a discretion ought toreside in the court or from the silence of the law with regard toconsequences of non-compliance, is such a discretion, willy-nilly,inferentially vested in the courts. Nowhere is it laid down that therejection of the application ought to ensue automatically in the eventof failure to support it within the period stipulated, and as such, thecourt has to decide, in its discretion, how the failure to follow theorder, with regard to the time-limit imposed thereby, is to be treated.
It is obvious that the overall object of these rules or laws is toensure better, perhaps quicker, administration of justice and not todeny access to the seat of justice altogether which would invariablybe the result from the standpoint of the plaintiff-petitioner if thisapplication is refused on the aforesaid grounds urged by the learnedPresident's counsel for the defendant-respondent. Justice does not getstale but retains its sweetness and aroma even if belated. It is arequirement of natural justice that a person, claiming to be aggrieved,
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who seeks redress through the intervention of the court should notlightly be denied an opportunity of presenting his case.
In conclusion it must be said that in assessing the importance ofa procedural requirement, such as that we are considering in this case,regard must be paid to basic principles of fairness. The question is:even assuming, for the sake of argument, that the order made bythe Judge in chambers has not been varied by the subsequent ordermade on 07.08.1997 – does the failure to follow the previous order,in all its rigour, result in serious injustice or, for that matter, any injusticeat ail to the defendant-respondent who merely complains that theapplication had not been supported within 14 days of the original ordermade on 23.07.1997 ? The answer to this is obvious. The nature ofthis matter is such that the defendant-respondent couldn't have possiblysuffered any prejudice whatever in consequence of the applicationnot being supported within the 14 days. On the contrary, it is worthrepeating, that if the plaintiff-petitioner is not permitted now to supportthe application on that score, i.e. because it has not been supportedwithin 14 days it would undoubtedly cause great injustice to him, soto say, by ousting him from the seat of justice and thereby denyingjustice to him altogether. If it is, indeed, an ironical result to denyjustice altogether by not even giving the plaintiff-petitioner a hearing,when as had been contended by the learned President's counsel forthe defendant-respondent, the object of the relevant law, under whichthe judge had made the order on 23.07.1997, i.e. to support within14 days, was better, if not quicker, administration of justice.
Lastly, it should be emphasized that good and proper administrationof justice, perhaps, requires speed of decision but it also ought toconcern itself with substance rather than form. The main object ofthe courts being to work justice between the parties we ought notto be backward in recognising that in special circumstances, rigid andinflexible application of the law (or any order) may have the oppositeresult – as it would, in this case, if the plaintiff-petitioner is not permittednow to support his application for leave to appeal. In such circum-stances, as have been revealed in this matter (application) – the courtmust not be content to take the path of least resistance by makinga mechanical order but must adopt a more interventionist judicialattitude by making an order which represents or embodies the rightmixture of law and justice for the rigour and severity of thelaw untempered (in such circumstances when such moderation iswarranted) by good – sense is not justice but somewhat akin to denialof it.
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For the aforesaid reasons, the objection (enunciated above) raisedby the learned President's counsel for the defendant-respondent ishereby overruled.
YAPA, J. – I agree.
Preliminary objection overruled.