JINADASA vs. HEMAMALI & OTHERS

035-SLLR-SLLR-2006-V-2-JINADASA-vs.-HEMAMALI-OTHERS.pdf


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JINADASA
VS.
HEMAMALI& OTHERS
COURT OF APPEAL.
BALAPATABENDI., J (P/CA)
EKANAYAKE, J. ANDWIMALACHANDRA, J.
CA 1164/2001 (F) (D. B.)
DC GAM PAHA 33465/L.
DECEMBER 2, 2005.
FEBRUARY 13. 2006.
Civil Procedure Code, section 755(3)-lnterpretation Ordinance, sections 8(1),14(9)- Petition of Appeal to be filed within 60 days – If the 60th day falls on anon-working day or a public holiday, can it be filed on the next working dayfollowing?-Meaning “from” a named date “to" another – Should the date ofjudgment be excluded ?-Rules of Interpretation.
HELD :
On the application of the Rules of Interpretation it would appear thatthe date of pronouncing the judgment should be excluded from thecomputation of time limits for filing the petition of appeal – section755(3). For the purpose of excluding the first in a series of days orany period of time it shall be deemed to have been and to be sufficientto use the word “from”. Date of judgment should be excluded.
It is not the function of the Judge to modify the language of a sectionof the Act in order to bring it in line with what is reasonable. However,it is not improper where two constructions are possible, for thereasonable one to be chosen.
The law cannot expect the performance of what is impossible andwhen the law had given a party a limited time to perform a certain acthe should be given the full benefit of that period as in this case,where it was not possible for the party having a period of sixty daysto file the petition of appeal on the 60th day as the 60th and 61stdays happened to be Saturday and Sunday.
The petition of appeal filed on the next working day was within theperiod as provided for in section 755(3).
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APPEAL from the judgment of the District Court of Gampaha. On a preliminaryobjection that the petition of appeal is out of time.
Cases referred to :
Sivapadasundaram vs. Pathmadan and Others (2004) Bar AssociationLaw Journal 89 at page 90
Perera vs. Perera (1981) 2 Sri LR 41
Silva vs. Sankaran 2002 2 Sri LR 209 (overruled)
Chandrakumar vs. Kiribakaran 1989 2 Sri LR 35 at 39
Nirmark de Mel vs. Seneviratne and Others 1982 2 Sri LR 569 at 572(sc)
Selanchina vs. Mohamed Markdar and Others 2000 3 Sri LR 100(sc)
Brich vs. Wisen Corporation (1953) 1 QB 13 at 142
Wickremaratne vs. Samarawickrama and Others (1995) 2 Sri LR 212
Kolitha Dharmawardane for plaintff appellant.
S. C. B. Walgampaya, PC with L. K. T. Perera and Ajith Liyanage for defendant-respondent.
cur.adv.vult.
October 12,2006.
WIMALACHANDRA, J.The Registrar of the Court of Appeal submitted this appeal before thePresident, Court of Appeal for an order of Court on the basis that thepetition of appeal had been lodged after the period of time stipulated bylaw. Similarly, in two other appeals, bearing Nos.: CA 964/94(F) and CA829/02 (F) the petition of appeal had not been filed within a period of sixtydays from the date of the judgment as stipulated by section 755(3). In allthree cases the petitions of appeal had been filed on the 61 st day as the60th day happened to bo oi'blic holidays.
Hence, as the same question was at issue in all three appeals, thePresident of the Court of Appeal referred all three cases to a divisionalBench.
The counsel appearing in all three appeals agreed that the order thatwill be made in C. A. No. 1164/2001 (F) shall apply to the other two appeals,namely C. A. 964/94 (F) and C. A. 829/02(F) as well.
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The only question that arises for consideration in this appeal relates tothe interpretation of section 755(3) of the Civil Procedure Code which limitsthe time within which the petition of appeal has to be filed. The relevantportion of section 755(3) of the Civil Procedure Code reads thus:
“Every appellant shall within sixty days from the dateof the judgment or decree appealed against, present tothe original Court, a petition of appeal setting out thecircumstances out of which the appeal arises and thegrounds of objection to the judgment or decree appealedagainst, and containing the particulars required by section758, which shall be signed by the appellant or hisregistered attorney. Such petition of appeal shall beexempt from stamp duty. Provided that, if such petition isnot presented to the original court within sixty days fromthe date of the judgment or decree appealed against,the court shall refuse to receive the appeal.”
The question that arises for consideration consists of two parts whichare as follows:
Whether the date of delivery of the judgment is included (or excluded)in computing the sixty days; and
Whether an appeal that was lodged on Monday, when Saturdaywas the 60th day, complies with section 755(3) of the Civil ProcedureCode.
It is to be observed that in terms of section 755(3) the day the judgment,from which the appeal is taken, is pronounced has to be excluded. Itappears that the words “from the date of the judgment” in section 755(3)means that the day the judgment was pronounced is excluded.
The above statement of the law was expressly adopted by JusticeBalapatabendi in the case of Sivapadasundaram vs. Pathmanadan andOthers(1) at 90 in the following terms :
“Our Courts in many instances have considered theprovisions of both sections mentioned above and
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interpreted the words “from the date of the judgment”contained in section 755(3) of the Civil Procedure Code.When computing 60 days from the date of the judgment,the date of pronouncement of the judgment should beexcluded.”
Bindra on ‘Interpretation of Statutes’, 8th edition at page 982 states,that the phrase “From a named date” means, on and after that day. I shallnow refer to section 14(a) of the Interpretation Ordinance, which reads asfollows:
“for the purpose of excluding the first in a series of days or anyperiod of time, it shall be deemed to have been and to be sufficient touse the word “from”.
Maxwell on ‘Interpretation of Statutes’, 12th edition at page 309, statesthus :
“where a statutory period runs “from” a named date“to” another, or the statute prescribes some period ofdays or weeks or months or years within which some acthas to be done, although the computation of the periodmust in every case depend on the intention of theParliament as gathered from the statute, generally thefirst day of the period will be excluded from the reckoning,and consequently the last day will be included.”
In the case of Perera vs. Perera <^the Court of Appeal consideringsection 755(3) of the Civil Procedure Code held that, the date on which thejudgment was pronounced can be excluded.
In the circumstances, it is my considered view that on the applicationof the rules of interpretation and the case law on this point, it would appearthat the date of pronouncing the judgment should be excluded from thecomputation of time in computing the time limits for filing the petition ofappeal.
The next matter for consideration is whether a petition of appeal couldbe deemed to have been filed within time in terms of section 755(3) of the
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Civil Procedure Code if filed on the next working day when the last day forfiling the petition (60th day) happened to be a non-working day of Court.
In the case of Silva vs. Sankaram ^the Court of Appeal held thatsection 755(3) of the Civil Procedure Code does not permit the appellantto lodge the petition of appeal beyond the time frame of sixty days.
In this case Dissanayake, J. held that the words “within sixty days” insection 755(3) restricts the right of the appellant to file the petition ofappeal beyond the time frame of sixty days given, and also held thatsection 8(1), of the Interpretation Ordinance does not apply.
The Interpretation Ordinance is the law governing the general rules ofinterpretation. Section 8(1) of the Interpretation Ordinance reads thus:
“Where a limited time from any date or from thehappening of any event is appointed or allowed by anywritten law for the doing of any act or the taking of anyproceeding in a Court or office, and the last day of thelimited time is a day on which the Court or office is closed,then the act or proceeding shall be considered as doneor taken in due time, if it is done or taken on the next daythereafter on which the Court or office is open”
In explaining section 8(1) of the Interpretation Ordinance A. De Z.Gunawardana, J. in the case of Chandrakumar vs. Kirubakaran(4) at 39made the following observation:
“It is seen that from the provisions in section 8(1) of theInterpretation Ordinance that where a person is allowedto do any act or take any proceedings in Court or office,and the last day of the limited time is a day on which theCourt or office is closed, then the act or proceedings canbe done or taken on the next day such Court or office isopen. The word “closed” had been used in the saidsection as opposed to the word “open” because it is stated
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there and act or proceedings taken on the next date onwhich Court or office is open is considered to have beendone or taken in due time.”
In the case of Sivapadasundaram vs. Pathmanadan and Others (supra)Balapatabendi, J. too expressed the view, that in terms of section 8(1) ofthe Interpretation Ordinance “the only conclusion that could be arrived atis if the 60th day for filing of the petition of appeal falls on a day on whichthe Court or office of the Court is closed, the filing of th'e petition of appealon the next day thereafter on which the Court or office is opened, shouldbe considered as it had been filed ‘within time’
In Nirmala De Mel vs. Seneviratne and Others,<5) at 572. Sharvananda,J. (as he then was) observed that—
“according to Rule 35, the petition of appeal should
have been filed latest on 14th February 1981, which fellon a Saturday, a day on which the office was closed. Inthis connexion section 8(1) of the Interpretation Ordinanceembodies a relevant rule of interpretation. It states that-
“Where a limited time from any date or from thehappening of any event is appointed or allowed by anywritten law for the doing of any act or taking proceedingsin a Court or office and the last day of the limited time isa day on which the Court or office is closed, then the actor proceedings shall be construed as done or taken indue time if it is done or taken on the next day thereafteron which the Court or office is open.”
On the application of this rule of interpretation it would appearthat the petition of appeal filed on Monday the 16th February 1981,which was the next working day was within time”
On a consideration of the above matters, I cannot agree withDissanayake, J. when he held in the case of Silva vs. Sankaram (supra)that section 8(1) of the Interpretation Ordinance has no application in theinterpretation of section 755(3) of the Civil Procedure Code.
A similar matter was dealt with by Chief Justice, Sarath N. Silva in thecase of Selanchina vs. Mohamed Markar and Others ^ln this case the
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Court of Appeal rejected the notice of appeal on the basis that it had notbeen filed within the period specified in section 754(4) of the Civil ProcedureCode. In terms of section 754(4), the following days have to be excluded incomputing the 14 days within which the notice of appeal shall be presentedto the Court of first instance,
the day the judgment from which the appeal is made is pronounced.
intervening Sundays and public holidays
the day the notice of appeal is presented.
Considering the facts and circumstances of the case, His Lordshipmade the following observations at page 102;
“the notice of appeal was presented on
20.10.1986. If that day is excluded, the period of 14 daysexcluding the date of judgment pronounced (/. e.30.09.1986) and intervening Sundays and public holidayswould end on 17.10.1986 which was a public holiday. Thenext day on which the notice should have been presentedwas the 18th, being a Saturday, on which the office ofthe Court was closed. The next day the 19th was a Sundaywhich too had to be excluded in terms of the section. Inthe circumstances, the notice filed on 20.10.1986 waswithin a period of 14 days as provided for in section 754(4)of the Civil Procedure Code.”
In interpreting a statute preference may be given to a reasonable meaningif the provision does not seem to be plain. However, it is not the function ofthe Judge to modify the language of a section of the Act in order to bring itin line with what is reasonable. However, it is not improper where twoconstructions are possible, foi^the more reasonable one to be chosen.
In the case of Silva vs. Sankaram and Others (supra) the Court adoptedthe view that the words “within sixty days” in section 755(3) of the CivilProcedure Code restrict the right of the appellant to file the petition ofappeal beyond the time frame of sixty days and held further that strictcompliance is imperative and non-compliance is fatal to the appeal. However,
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the more reasonable constructions were made by Sharvananda, J. (as hethen was) in Nirmala de Mel Vs. Seneviratne and Others (supra) and ChiefJustice Sarath N. Silva, in the case of Selanchina vs. Mohamed Marikkarand Others (supra).
Maxwell’s ‘Interpretation of Statues’, 12th edition at page 203 statesthus :
“Not only are unreasonable or artificial or anomalousconstructions to be avoided, it appears to be anassumption (often outspoken) of the Courts that wheretwo possible constructions present themselves, the morereasonable one is to be chosen”
In Brich vs. Wigen Corporation (7>a 142 Denning L. J., observed:
“Where there is a fair choice between a literalinterpretation and a reasonable one – and there usuallyis – we should always choose the reasonable one.”
“It is equally well-settled that where alternative is to be chosen whichwill be consistent with the smooth working of the system which the statutepurports to be regulating and that alternative is to be rejected which willintroduce uncertainty, friction, or confusion with the working of the system”(Bindra – 'Interpretation of Statutes’ (supra) at pages 243, and 244).
In the case of Wickramaratne vs. Samarawickreme and Others(8> SarathN. Silva, J. (as he then was) made the following observations:
“In statutory interpretation there is a presumption thatthe legislature did not intend what is inconvenient orunreasonable. The rule is that the construction must beagreeable to justice and reason should be given.”
Maxwell at p. 199 has stated this rule of interpretation as follows:
“In determining either the general object of thelegislature, or the meaning of its language in anyparticular passage, it is obvious that the intention whichappears to be most in accord with convenience, reason,justice and legal principles should, in all cases of doubtful
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significance, be presumed to be the true one. An intentionto produce an unreasonable result is not to be imputedto a statute if there is some other construction available”.
Bindra’s ‘Interpretation of Statutes’ (supra) at page 231 states thus:
“It is a well known principle of interpretation of statutesthat a construction should not be put upon a statutoryprovision which would lead to manifest absurdity or futility,palpable injustice, or absurd inconvenience or anomaly.Where the language of law is clear, it is not necessary tosee whether the interpretation put on the law is likely tolead or not to hardships and to absurdities. But the testmay be applied to see whether the interpretation is asound one or not”
In the circumstances it appears that the most preferred view is that apetition of appeal filed on the next working day of the Court when the lastday (60th day) happened to be a non-working day is within time as providedby section 755(3) of the Civil Procedure Code and this view is consistentwith the Interpretation Ordinance as well as the rules of interpretation.
The law cannot expect the performance of what is impossible and whenthe law has given a party a limited period of time to perform a certain act,he should be given the full benefit of that period as in this case where itwas not possible for the party having a period of sixty days to file thepetition of appeal on the 60th day as the 60th and 61 st days happened tobe Saturday and Sunday. Accordingly, the petition of appeal filed on thenext working day was within the period as provided for in section 755(3).
For these reasons, I am of the view that the petition of appeal of theappellant is within time and the objections raised by the respondent arerejected. The Registrar of the Court of Appeal is directed to list this appealfor hearing in due course. I make no order as to costs.
BALAPATABENDIJ. (P/CA)—/ agree.EKAN AYAKE J.—I agree.
Preliminary objection overruled.Appeal to be listed for hearing.