010-SLLR-SLLR-2003-V-2-RANINKUMAR-v.-UNION-ASSURANCE-LIMITED.pdf
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RANINKUMAR
v
UNION ASSURANCE LIMITED
SUPREME COURTS.N. SILVA, C.JBANDARANAYAKE, J. ANDEDUSSURIYA, J.
SC (CHC) APPEAL NO. 46/99H.C. COLOMBO (CIVIL)
CASE NO 55/96(1)
29TH APRIL AND 6TH AND 27 JUNE 2003
Civil Procedure Code – Validity of notice of appeal filed personally by. appel-lant and not by his registered attorney – Section 754(4) of the Code – Defectnot curable under section 759(2).
Section 754(4) of the Civil Procedure Code (‘The CPC”) requires that “the
notice of appeal shall be presented to the court of first instanceby the
party-appellant or his registered attorney within a period of 14 days” In the
instant case the appellant himself had signed the notice of appeal and not hisregistered attorney.
Held :
The lapse by the appellant’s failure to present the notice of appeal by his reg-istered attorney goes to the basic validity of the notice and as such is not cur-able in terms of the provisions of section 759(2) of the Code which excludesthe application of that section to any provision which prescribes the periodwithin which the act or thing is to be done.
Cases referred to
Fernando v Fernando (1997) 3 SRI LR 1
Hameed v Deen (1988) 2 SRI LR 1
Sameen v Abeywickrama 61 NLR 553
APPEAL from the judgment of the High Court of Colombo.
Raninkumar v Union Assurance Limited
SC(Edussuriva. J.)^3
Gamini Marapana, PC with Navin Marapapa for appellant.
S'.L. Gunasekera with Kushan De Alwis for respondent.
Cur.adv. vult.
July 24, 2003EDUSSURIYA, J.
When this appeal was taken up for hearing, the learned 01Counsel for the respondent invited this Court to reject the appeal inas much as the appellant himself has signed the notice of appealand not his registered attorney-at-law.
Learned President’s Counsel for the appellant then proceededto make submissions on this question and at the end of the day theCourt invited him to tender written submissions.
Learned President’s Counsel, by his oral submissions as wellas written submissions, has stated that he does not wish to attemptto justify the appellant’s conduct in signing the “Notice of Appeal” in 10question when there was a registered attorney-at-law appearing forhim, but invited this Court to exercise the discretion vested in thisCourt in terms of section 759(2) of the Civil Procedure Code in theappellant's favour since no material prejudice will be caused to therespondent.
Learned President’s Counsel has submitted that the facts con-sidered in the judgment in Fernando v Fernando C) were similar tothe case now before us. However he contends that even though thelearned Judges in deciding that case had cited with approval thestatement of S.N.Silva,J. as he then was, in the Court of Appeal 20judgment, in Hameed v Deen (2), wherein S.N.Silva, J. had statedthat “counsel for the appellant did not invite this Court to act interms of section 759(2) of the Civil Procedure Code. In any event,this lapse referred to above goes to the basic validity of the Noticeand Petition and as such is not curable in terms of the provisions ofsection 759(2)”, the decision of the Privy Council in Sameen vAbeywickramaW had not been considered by Court either in
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Fernando v Fernando (Supra) or in Hameed v Deen (supra) andthat therefore both these decisions were per incuriam and that had
the decision of the Privy Council in Sameen v Abeywickrama(supra) been considered Their Lordships who decided Fernando vFernando (supra) and Hameed v. Deen (supra) would have arrivedat a different decision.
Learned President’s Counsel has submitted that TheirLordships of the Privy Council had taken the view that in grantingrelief under section 756(3) of the Civil Procedure Code it was wrongto decide whether the non compliance complained of would amountto a substantial non-compliance and that relief under section 756(3)should be granted only when there was more or less trivial non
compliance and further that there was no limitation to the power togrant relief.
In Sameen v Abeywickrama (supra) the Privy Council dis-cussed the scope of section 756(3) of the Civil Procedure Code andthe question whether relief could be given in terms of that sectionto an appellant who had (1) failed to give notice of the filing of apetition of appeal and (2) failed to sign the bond relating to securi-ty for costs in appeal.
At the date of the decision in Sameen v Abeywickrama (supra)an appellant who was aggrieved with a decision of the District Courthad to file a petition of appeal within ten (10) days of the pro-nouncement of the judgment as prescribed in section 754(2) of theCivil Procedure Code.
Section 755 required all petitions to be signed by some advo-cate or proctor. Section 756(1) required the petitioner to forthwithgive notice to the respondent that he will on a day specified withinthe period set out in the section tender security for the respondent’scosts of appeal as directed therein etc. The section also requirednotice of appeal to issue immediately on the respondent as set outtherein on security for costs being accepted.
Section 756(3) reads as follows;
“In the case of any mistake, omission, or defect on the part of
any appellant in complying with the provisions of this section,
the Supreme Court, if it should be of opinion that the respon-
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dent has not been materially prejudiced, may grant relief on
such terms as it may deem just”
So that, clearly, relief may be granted in the case of any mis-take, omission or defect on the part of any appellant in complyingwith the provisions of section 756 only, and section 756(3) did notextend to any mistake, omission, or defect in complying with sec-tion 755 which required the petition of appeal to be signed by someadvocate or proctor or section 754(1) which required the petition ofappeal to be presented to the court of first instance within a periodof ten days or seven days as the case may be as set out in that sec-tion, and therefore that Their Lordships of the Privy Council werenot called upon to decide on the applicability of section 756(3) withregard to the failure of an appellant to comply with the requirementsrelating to the presenting of a petition of appeal as prescribed insection 754(1) or the provisions of section 755.
It must be borne in mind that the Privy Council decision inSameen v Abeywickrama (supra) dealt with only the failure to signthe bond in respect of security for costs of the respondent and thefailure to give notice of the filing of a petition of appeal.
Under the Administration of Justice Law, No. 44 of 1973 whichrepealed the Civil Procedure Code, an appellant was required topresent a notice of appeal within the period prescribed, followed bya petition of appeal.
Thereafter, the Administration of Justice Law, No. 44 of 1973was repealed by the Civil procedure Code which required an appel-lant to present a notice of appeal as prescribed in section 754(3)and section 754(4).
Section 755 sets out that a notice of appeal shall be dis-tinctly written on good and suitable paper and shall be signed bythe appellant or his registered attorney and shall be dulystamped. Section 755(1) sets out the particulars to be containedin a notice of appeal. Section 755(2) provided for the furnishingof security for the respondent’s costs in appeal etc. Section755(3) required a petition of appeal to be presented within theperiod prescribed therein. Section 755(4) referred to the for-warding of such an appeal to the Court of Appeal. Section 756referred to the procedure to be followed in respect of an appeal
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and an application for leave to appeal. Section 757 refers tosecurity for costs. Section 758(1) sets out the particulars to becontained in the petition of appeal followed by section 758(2)which sets out that the appellant shall not be confined to thegrounds set forth at the hearing of the appeal etc. Then comessection 759(1) followed by section 759(2) the purview of whichthis Court has been called upon to examine.
Section 759(2) as amended by Act, No.79 of 1988 readsas follows :
“In the case of any mistake, omission or defect on the part 110of any appellant in complying with the provisions of the fore-going sections, (other than a provision specifying the periodwithin which any act or thing is to be done) the Court ofAppeal may, if it should be of the opinion that the respon-dent has not been materially prejudiced, grant relief on suchterms as it may deem just”.
Therefore, no relief whatsoever can be granted where thereis any mistake, omission or defect in complying with a provisionspecifying the period within which any act or thing is to be done,even if the respondent is not materially prejudiced.120
Learned President’s Counsel has in the course of his sub-missions referred to several judgments which set out that techni-calities should be overlooked or that relief should be granted inthe case of non compliance of mere trivial requirements. Thosejudgments have no bearing on the question to be decided by thisCourt.
Although section 755(1) sets out that the notice ofappeal shall be signed by the appellant or his registeredattorney and section 755(1) does not refer to any act whichhas to be done within a specified period, section 754(4) 130specifies that “the notice of appeal shall be presentedto the court of first instance for this purpose by theparty appellant or his registered attorney: within a period of four-teen days from the date when the decree or orderappealed against was pronounced exclusive of the dayof that date itself and of the day when the notice of appeal
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is presented and of Sundays and public holidays, and the Courtto which the notice is so presented shall receive it and deal withit as hereinafter provided. If such conditions are not fulfilled,Court shall refuse to receive it”.
The words “The notice of appeal shall be presented by theparty appellant or his registered attorney within a period of four-teen days" in section 754(4) connote the handing over to the
Court of first instance a duly signed notice of appeal within theperiod prescribed and not merely the physical act of handingover of a purported notice of appeal which is not duly signed asrequired by law by the party appellant or his registered attorney.Hence, a notice of appeal which has been signed by an appel-lant and not by his registered attorney-at-law will not be a noticeof appeal contemplated by section 754(4) of the Civil ProcedureCode.
It Is for th(s very same reason I believe that S.N. Silva,.J. ashe th^en was-, in the Court of Appeal judgment in Hameedv Deen(sup'rai^stated “In any event this lapse (where the appellant hadsigned both the alleged Notice of Appeal and alleged Petition ofAppeal and not his registered attorney-at-law) referred to abovegoes to the basic validity of the Notice and Petition and as suchis not curable in terms of the provisions of section 759(2)”.
That decision was pronounced on 25th March 1988 andthen section 759(2) was amended by Amendment Act, No.79 of1988 which was certified on 18th December 1988 to read thatsection 759(2) shall not apply to a provision specifying a timewithin which an act has to be done and that amendment was thelast nail in the coffin as far as the learned President’s Counsel’scontention is concerned.
Therefore section 759(2) clearly does not apply to a situa-tion where a purported notice of appeal is not duly signed, sincesection 754(4) requires a notice of appeal to be presented by theappellant or his registered attorney to the court of first instancewithin the period prescribed therein. I repeat such a purportednotice is not one contemplated by section 754(4).
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In any event, what is the relief that can be given? To enter-tain the notice of appeal despite the defect and hear the appeal?
That cannot be done as it would amount to a situation where thisCourt would entertain an appeal in spite of there being no notice ofappeal as required by section 754(4). In the alternative, direct theappellant to tender a duly signed notice of appeal? Such a noticeof appeal would be clearly in breach of section 754(4) as it wouldbe filed beyond the period prescribed therein.
Therefore it is clear, that the appellant advisedly refrained from iso omoving Court to accept a duly signed notice of appeal, unlike in thecase of Fernando v. Fernando (supra).
For the above mentioned reasons, the “Notice of Appeal” isrejected nunc pro tunc and accordingly the appeal is also rejected.
No costs.
S.N. SILVA, C.J.-1 agree.
BANDARANAYAKE, J.-1 agree.
Appeal rejected.