SILVA v. SANKARAM AND OTHERS

029-SLLR-SLLR-2002-V-2-SILVA-v.-SANKARAM-AND-OTHERS.pdf


CA
Silva v. Sankarama and Others
209
SILVA
v.
SANKARAM AND OTHERS
COURT OF APPEALDISSANAYAKE, J. ANDSOMAWANSA, J.
CA NO. 876/91 (F)
DC COLOMBO NO. 99730/MAUGUST 22, 2000MARCH 26, 2001 ANDSEPTEMBER 14, 2001
Civil Procedure Code – Amended by Act No. 79 of 1988, s. 754, s. 760A – Appeal -Computation of the period of 60 days – Within 60 days – 60th day falling ona Sunday – Can the petition of appeal be lodged on Monday? InterpretationOrdinance – s. 8 (1) – Holidays Act, No. 29 of 1971.
The appellant lodged the petition of appeal on Monday, the 61 st day, as the 60thday fell on Sunday, a public holiday.
It was contended that, the appeal is out of time.
Held:
A strict compliance is imperative and non-compliance is fatal to the appeal.
The words ‘within 60 days’ in section 755 (3) restrict the right of theappellant to file the petition of appeal beyond the time frame of 60 daysgiven.
The provisions of s. 8 (1) Interpretation Ordiinance do not apply.
Per Dissanayake, J.
"There is no need for the appellant to wait until the 60th day which fellon a Sunday and then complain that he should be allowed to file his petitionof appeal on the 1st working day after such Sunday.”
APPEAL from the judgment of the District Court of Colombo.
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Cases referred to :
State Trading Corporation v. Dharmadasa – 1987 2 SLR235.
Keerthiratne v. Udeni Jayaratne – 1990 2 SLR 346.
Peter Singho v. Costa – 1992 1 SRI LR 49.
Boyagoda v. Mendis – 30 NLR 321.
CA No. 1475/93 (F) DC Kurunegala No. 2330/P – CAM25.10. 2000.
Wickramanayake v. De Silva – 1978-79 2 SRI LR 65.
Selenchina v. Mohamed Marikkar and Others – 2000 3 SRI LR 100.
Nirmala de Mel v. Seneviratne and Others – 1982 2 SRI LR 569.
Rohan Sahabandu for defendant-appellant.
S. Mahenthiran, PC, with A. Premalingam for plaintiff-respondent.
Cur. adv. vult.
November 02, 2001DISSANAYAKE, J.
Learned President’s Counsel appearing for the plaintiff-respondenttook up the position that the appeal of the defendant-appellant isfiled out of time.
Learned counsel appearing for the defendant-appellant submittedthat the judgment in this case was delivered by the learned DistrictJudge on 10. 07. 1991. The defendant-appellant duly tendered thenotice of appeal. The petition of appeal was due to be tendered onthe 8th of September, 1991, which was the 60th day. Since the 8thof September, 1991, fell on a Sunday, the petition of appeal wastendered by the defendant-appellant on 9th September, 1991, thefollowing Monday which happened to be the next working day. Learnedcounsel appearing for the defendant-appellant contended that the lawpermitted such a course of action.
Learned counsel appearing for the defendant-appellant submittedthat under the Holidays Act, No. 29 of 1971 all public holidays and
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Silva v. Sankaram and Others (Dissanayake, J.)
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Sundays are ‘dies noh’ and are named as holidays. He contended,therefore, tendering of the petition of appeal on 8th of September,1991, is not possible as the District Court is closed on Sundays.
It was contended by him that under section 8 (i) of the InterpretationOrdinance in such a situation the petition of appeal could be tendered 20on the following first working day. He cited the decision of the SupremeCourt in State Trading Corporation v. Dharmadasa{'] where His LordshipSharvananda, CJ. observed that “section 8 (i) of the InterpretationOrdinance will not avail the appellant since the last date for presentingthe notice of appeal to Court was 16th June, a Friday – a day onwhich the Court was not closed. Had the last being Saturday, the17th then the notice of appeal could validly have been filed on theMonday the 19th, when the Court was open.
The judgment of His Lordship Sharvananda, CJ. in State TradingCorporation v. Dharmadasa (supra) was pertaining to tendering of the 30notice of appeal and not the petition of appeal.
The matter for decision in the instant case is the time limit fortendering of the petition of appeal under section 755 (3) of the CivilProcedure Code.
Section 755 was further amended by Act No. 79 of 1988. Section755 (3) provides that the petition of appeal shall be tendered within60 days from the date of the judgment or decree appealed againstand the proviso to the section states that if such petition is notpresented to the original Court within 60 days from the date thejudgment or decree appealed against, the Court shall refuse to 40receive the appeal.
Under section 754 (4) a notice of appeal has to be tendered byan appellant within 14 days of the date when the decision or orderappealed against was pronounced. In computing the 14 days dateon which the decree or order was pronounced and the date of filingof the notice of appeal and all Sundays and public holidays areexcluded.
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However, there is no such exclusions under section 755 (3). Thephrase “within 60 days from the date of judgment or decree”,encompasses a limited time span. In Black’s Law Dictionary the word 50within “when used in relation to time, has been defined as meaninganytime before, at or before, at the end of, before the expiration of,not beyond, not exceeding, not later than. The use of the word “within"as a time or limit, or degree or space, embraces the last day or degreeor entire distance covered by the time fixed.
In Stround’s Judical Dictionary of Words and Phrases, it is morefrequently used to delimit a period inside which certain events mayhappen.
Where something is to be done “within” stated time “before” a stateddate that means that it is to be done at some time during the course eoof stated time immediately preceeding the stated date.
In the case of Keerthiratne v. Udeni Jayaratne at 347 H. W.Senanayake, J. stated thus :
‘The provisions of section 755 (3) of the Civil Procedure Coderequires the appellant to present to the original Court a petitionof appeal within 60 days. This is mandatory. The filing of a noticeof appeal must be followed, with the petition of appeal, both stepsbeing mandatory and imperative in lodging an appeal.”
(3)
In Peter Singho v. Costa at 52 Ananda Coomaraswamy, J. statedthus :70
“. . .The Court of Appeal was considering section 755 (3) ofthe Civil Procedure Code relating to the petition of appeal. Accordingto this provision the petition of appeal must be filed within 60 daysfrom the date of the judgment . . .”
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‘The provisions relating to petitions of appeal is entirely a newone, in the new Civil Procedure Code. Therefore, the decisionof Boyagoda v. Mendis is not applicable to cases falling underthe new Civil Procedure Code and the decision in Sri LankaState Trading Consolidated Export Corporation v. Dharmadasa(supra) is applicable, mutatis mutandis, to the petition of appeal. 80Accordingly, the petition of appeal presented in this case is clearlyout of time.”
In a more recent case(5) Wigneswaran, J. stated thus :
“. . . The words within 60 days in the said section restrictsthe right of the appellant to file the petition of appeal beyond thetime frame of 60 days given. As stated by Soza, J. inWickramanayake v. De Silva{6) at 71 – "Parties should not waittill the last moment and then complain when they are caught outof time.”
In the case of Wickramanayake v. De Silva (supra), it was held soby Soza, J. that provisions of section 755 (3) of the Civil ProcedureCode which requires the petition of appeal to be filed within60 days from the date of judgment are mandatory.
Accordingly, where a petition had been filed after the period of60 days had lapsed, the learned District Judge was correct in rejectingsuch petition. The notice of appeal too lapses for want of compliancewith the subsequent requirement and should be rejected. Thisalso was not a case in which relief should be given under theprovisions of section 759 (2), specially as there was no avermentregarding material prejudice to the respondent in the petition and as 100the procedure set out in chapter LX of the Civil Procedure Code wasavailable to the petitioner.
At page 68 Soza, J. discussing the effects of enactments regulatingthe procedure in Courts has stated as follows :
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“Enactments regulating the procedure in Courts are usuallyconstrued as imperative – See Maxwell on the Interpretation ofStatutes, 11th ed. (1962), p. 367 the rule is explained thus :
“If, for instance, a right of appeal from a decision be givenwith provisions requiring the fulfilment of certain conditions, suchas giving notice of appeal and entering into recognisances, ortransmitting documents within a certain time, a strict compliance nowould be imperative and non-compliance would be fatal to theappeal.”
Learned counsel appearing for the defendant-appellant relied onthe decisions of the following cases to buttress his contention thatif the 60th day fell on a Sunday or a public holiday the appellantwas entitled to present the petition of appeal on the following firstworking day :
Boyagoda v. Mendis {supra).
{b) Selenchina v. Mohamed Marikkar and Others,<7)
State Trading Corporation v. Dharmadasa {supra).120
Nirmala De Mel V. Seneviratne and Others.(8)
The decision in the case of Boyagoda v. Mendis {supra) has beendelivered on 18th March, 1929 and aforesaid decision dealt withsection 754 of the Civil Procedure Code that was in force then, whichis substantially different from section 755 (3) of the Civil ProcedureAmending Act, No. 79 of 1988. According to the provisions of theold Civil Procedure Code the petition of appeal has to be furnishedwithin 10 days of the date of judgment. The date the judgment waspronounced and the date of filing of the petition of appeal areexcluded. Therefore, the facts of the aforesaid case are different to 130the facts of the instant case before us.
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The matters decided in the case of Selenchina v. Mohamed Marikkarand Others {supra) were with regard to section 754 (4) which providesthe time frame within which the notice of appeal has to be filed.
The facts of the case of The State Timber Corporation v. Dharmadasa(supra) were also based on section 754 of the Civil Procedure Codebefore it was amended by the amending Act No. 79 of 1988. Thematter that came up for decision in the aforesaid two cases werewith regard to presenting of the notice of appeal.
The facts that came up for decision in the case of Nirmala De 140Mel v. Seneviratne and Others (supra) were based on the appellanthaving obtained leave to appeal from the judgment of the Court ofAppeal, tendering his appeal to the Supreme Court which was outof time. According to the Supreme Court rules, the period withinwhich the appeal should have been tendered was 30 days from thedate leave to appeal was granted.
Learned cousnel appearing for the defendant-appeallant cited tous the following observations of His Lordship Sharvananda, J. at page572 of the said case : “section 8 (1) of the Interpretation Ordinanceis relevant to such an instance and on the application of the rule of 150interpretation it would appear that the petition of appeal filed inMonday the 16th February, 1981, which was the next working daywas within time”. It is to be observed that the judgment of NirmalaDe Mel v. Seneviratne (supra) was delivered on 2nd August, 1982.
The Interpretation Ordinance came into the statute book on 3rdDecember, 1901.
It is of interest to examine section 8 (1) of the InterpretationOrdinance at this stage. I set down below section 8 (1) of theInterpretation Ordinance :
“Where a limited time from any date or from the happening 160
of any event is appointed or allowed by any written law for the
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doing of any act or the taking of any proceeding in a Court oroffice, and the last day of the limited time is a day on which theCourt or office is closed, then the act or proceeding shall beconsidered as done or taken in due time, if it is done or takenon the next day thereafter on which the Court or office is open.”
Sections 754 to 760A of Amending Act No. 79 of 1988 which wascertified on 18. 12. 1988 replaced the provisions in the old CivilProcedure Code relating to notice of appeal and petition of appeal,etc. Under section 755 (3) of the amended Civil Procedure Code, the 170petition of appeal shall be presented to the original Court, within 60days from the date of judgment or decree appealed against.Under the proviso to subsection 3, if such petition is not presentedto the original Court within 60 days from the date of judgment or decreeappealed against, the original Court is empowered to refuse to receivethe said appeal.
Section 759 (2) provides for the Court of Appeal to grant reliefto an appellant, where there was a mistake, omission or defect incomplying with the provisions relating to the notice of appeal and thepetition of appeal (other than provisions specifying the period within isowhich any act or thing to be done), if it was of opinion that therespondent has not been materially prejudiced.
It is to be observed that any mistake or omission with regard tothe time frames within which any act or thing is to be done has beenexcluded from matters where the Court of Appeal could grant relief.
It is well to be borne in mind that the proviso to subsection 3 ofsection 755 of the Civil Procedure Code, and the exclusion of thetime frames within which any act or thing is to be done, for grantof relief by the Court of Appeal under section 759 (2) the CivilProcedure Code, in respect of any mistake, error or omission in 190complying any provisions in respect of the notice of appeal and thepetition of appeal were not there in the Civil Procedure Code, beforeit was amended by amending Act No. 79 of 1988.
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The opinion expressed at page 327 by Maxwell on the Interpretationof Statutes (1962) 11th ed. is very relevant to arrive at a conclusionthat can be arrived at when an enactment regulating procedure inCourts is breached.
The author at page 327 has expressed the view that enactmentsregulating the procedure in Courts seem usually to be imperative andnot merely directory. He has stated further that in a case of right ofappeal from a decision be given with provisions requiring the fulfilmentof certain conditions, such as giving notice of appeal and enteringinto recognisances, or transmitting documents within a certain time,a strict compliance would be impreative and non-compliance wouldbe fatal to the appeal.
Therefore, I am of the view that the provisions of section 8 (i) ofthe Interpretation Ordinance do not apply to the facts of the instantcase.
In terms of section 755 (3) of the amended Civil Procedure Codean appellant is given 60 days, which is a substantial period of time,to tender the petition of appeal. There is no need for the appellantto wait until the 60th day which fell on a Sunday and then complainthat he should be allowed to file his petition of appeal, on the 1stworking day after such Sunday. The words “within 60 days” in section755 (3) of the Civil Procedure Code, restrict the right of the appellantto file the petition of appeal beyond the time frame of 60 days given.
Thus, the petition of appeal of the defendant-appellant is tenderedout of time.
The appeal of the defendant-appellant is rejected without costs.SOMAWANSA, J. – I agree.
Appeal rejected.