SAMARASEKERA v. INDRANI

025-SLLR-SLLR-2007-V-1-SAMARASEKERA-v.-INDRANI.pdf


Samarasekera v Indrani
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SAMARASEKERA
v
INDRANI
COURT OF APPEALEKANAYAKE, J.
SRISKANDARAJAH, J.
CALA 74/2003DC GALLE RE 440/98
Civil Procedure Code – Section 754(4), Section 757 – Amendment No. 79 of1988 – Section 765- Leave to Appeal notwithstanding lapse of time – Bona fidemistake in noting down the date by party and his Attomey-at Law – Cause notwithin his control?
Held:
A mistake or oversight on the part of the Attomey-at-Law or a party toa suit is not such cause within the meaning of Section 765 as wouldenable such party to the relief under the said provision – Section 765.
'Noting down the wrong date' cannot be considered as a ground thatfalls within the purview of 'causes' not within his control'.
APPLICATION under Section 765 of the Civil Procedure Code.
Cases referred to:
Rankira v Silindu- 10 NLR 376
Julius v Hodgson – 11 NLR 25
S.F.A. Cooray for defendant-petitioner
Hemasiri Withanachchi for plaintiff-respondent.
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12007) 1 Sri LR
January 31,2007CHANDRA EKANAYAKE, J.
The defendant-petitioner (hereinafter sometimes referred to as oithe defendant) by his petition dated 11.03.2003 (supported by anaffidavit) in addition to other interim reliefs had moved for leave toappeal from the judgment of the learned Additional District Judge ofthe Galle pronounced on 07.02.2003 in D.C. case Galle No.140/98/RE, that this appeal be admitted notwithstanding the lapse oftime, that the judgment of the District Court pronounced on
be set aside and that this action of the plaintiff-respondent(hereinafter sometimes referred to as the plaintiff) be dismissed.
The plaintiff had instituted the above styled action against the 10defendant by her plaint dated 10th June 1998 seeking a declarationthat the plaintiff is the owner of an undivided 1/10 share of thepremises described in the schedule to the plaint, ejectment of thedefendant from the said premises and recovery of damages asprayed in sub paragraph (c) of the prayer to the plaint. The basis ofthe plaint had been that the plaintiff who was one of the 10 childrenof one Albert who had become the owner of the subject matter in 1986and the said Albert had died in 1990, leaving his 10 children asintestate heirs. The plaint had averred that the defendant was inforcible and wrongful possession of the subject matter since 20
(the date of death of said Albert).
The defendant by his answer whilst praying for a dismissal ofplaintiffs action had moved for judgment in his favour on the claim inreconvention averred therein. The defendant further took up theposition in the answer that he originally came into occupation of thepremises in suit in 1969 as the tenant of one Harriet WijeratneJayaratne to whom he paid monthly rental until May 1979 againstwhom the defendant also had obtained relief from the Rent Board inrespect of effecting necessary repairs to the premises in suit andthereafter the defendant being informed that the said Harriet 30Wijeratne Jayasekera had gifted the premises to her niece oneLakshmi Wickremasinghe, who had had refused to accept themonthly rent and therefore the defendant had to deposit the same inthe Galle Municipal Council until 1999. Further it was averred that onor about April 1980 the defendant having learned that the said Harriet
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Wijeratne Jayasekera had sold the premises in suit to one Viola Averywhen the defendant was preparing to purchase the same and that hewas not called upon either by the seller or the buyer to pay the rent tothe new purchaser and further it was contended that different personsin turn having bought the premises over the head of the defendanttenant and thereafter only that same had been purchased by the saidAlbert on 23.10.1990. It had been specifically averred by thedefendant in his answer that the said premises was governed by theRent Act No. 7 of 1972 (as later amended) and at no stage the saidAlbert or the plaintiff had requested the defendant tb attorn to them.The basis of the claim in reconvention of the defendant had been thatsince the plaintiff had instituted the above action in order to harass thedefendant in the absence of accrual of any cause of action againsthim.
The trial having commenced in the District Court after leadingevidence by both parties the learned trial Judge by his judgmentpronounced on 07.02.2003 had granted the reliefs in favour of theplaintiff and had dismissed the claim in reconvention of the defendant.
The basis of the present petition is that after conclusion of thetrial the learned trial Judge before whom the said trial was taken uphad been transferred from Galle and the delivery of the judgment wasdelayed.On 11.01.2002 judgment was fixed for 10.05.2002 and thesame being not ready on that date also it was postponed for
As it was not ready on 26.7.2002 also same waspostponed for 06.09.2002 and on 06.09.2002 also it was postponedfor 29.11.2002. As averred in paragraph 16 of the petition thepetitioner has contended that when the case was called for thepurpose of pronouncing the judgment on 29.11.2002 the defendantand his registered Attorney (Ms. Saroja Mendis) were both present incourt and since the judgment was not ready same was postponed,and both the defendant and the above registered Attorney noted thenext date for judgment as 27.02.2003. On 27.02.2003 both defendantand the said registered Attorney were present in Court on 27.02.2003expecting delivery of the judgment, as this case was not called andafter making inquiries as to why the case was not called the saidAttorney-at-Law had found that the case had been called on
and the judgment had been delivered on that dategranting the reliefs in favour of the plaintiff.
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Being aggrieved by the said judgment the defendant wished toappeal therefrom to this Court and he was advised on 27.02.2003 thatthe period allowed by law for filing of notice of appeal had expired on
and as such papers have to be filed directly in this Court.However the defendant had filed the notice of appeal in the DistrictCourt on 28.02.2003 against the aforesaid judgment and a copy of thesaid notice of appeal has been annexed to the petition marked X12with a copy of the bank receipt for the deposit of Rs. 750/- as securityfor costs of appeal (X11), true copy of the bond hypothecating the saidsum in favour of the Registrar of the said Court (X13) and a true copyof the registered postal article receipt in proof of posting, a copy of thenotice of appeal to the plaintiff and to her registered Attorney (X14)and those are pleaded as part and parcel of the petition amongstother documents. Being aggrieved by the said judgment delivered on
the defendant has made this application for leave toappeal notwithstanding the lapse of time of this Court on the groundsurged by sub paragraphs 23(a) to (i) of the present petition. Furtherthe defendant has urged that on the aforesaid facts (which weresupported by an affidavit of his registered Attorney-at Law Mrs. SarojaMendis), that he was prevented due to causes not within his controlfrom complying with the provisions of Section 754(4) of the CivilProcedure Code by duly filing a notice of appeal and further he isadvised that he has good grounds of appeal. In the aforesaidpremises he has moved for the reliefs prayed by the prayer to thepresent petition.
Having supported the above application made by the saidpetition after receiving notice the plaintiff by her statement ofobjections dated 26th March 2003 (supported by an affidavit) whilstdenying the averments contained in the petition had moved for adismissal of the defendant's application.
At the hearing before this Court Counsel who represented bothparties after concluding their oral submissions have rendered writtensubmissions as well.
Since this appears to be an appeal made under and in terms ofsection 765 (as amended) of the Civil Procedure Code it would bepertinent to consider the provisions of the above section. Thus section765 (as amended by Act No. 79/1988) reads as follows:
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"It shall be competent to the Supreme Court to admit andentertain a petition of appeal from a decree of any originalcourt, although the provisions of section 754 and 755 havenot been observed;
Provided that the Supreme Court is satisfied that thepetitioner was prevented by causes not within his controlfrom complying with those provisions; and
Provided also that it appears to the Supreme Court thatthe petitioner has a good ground of appeal, and that nothinghas occurred since the date when the decree or order 120which is appealed from was passed to render it inequitableto the judgment-creditor that the decree or order appealedfrom should be disturbed."
Plain reading of the above section would reveal that, it shall becompetent to admit and entertain a petition of appeal from a decreeof any original Court, although the provisions of section 754 and 755have not been observed on the Court being satisfied of the tworequirements namely;
that the petitioner was prevented by causes not within his
control from complying with those provisions and130
that the petitioner has a good ground of appeal, and nothinghas occurred since the date when the decree or order whichis appealed from was passed to render it inequitable to thejudgment creditor that the said decree or order should bedisturbed.
The position of the defendant is that he was unable to complywith provisions of section 754(4) and to prefer an appeal by lodging anotice of appeal within the time frame stipulated therein, due to thebona fide mistake made by the defendant and his registered Attorney-at-Law (Mrs. S. Mendis) in noting down the next date 27.02.2003 140given for judgment (when in fact the date given had been 07.02.2003).
Whether the defendant has satisfied the requirements of the 1 stproviso to section 765 of the Civil Procedure Code; that is whether hewas prevented by causes not within his control from filing the noticeof appeal has to be considered. In this regard necessity would arise
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to consider the affidavit of the registered Attomey-at-Law for thedefendant Mrs. Saroja Mendis marked as X21. This affidavit has beenaffirmed on 11.05.2003. Present petition of the defendant is a petitiondated 11.03.2003 and the supporting affidavit had been affirmed onthe same day (11.03.2003). The date stamp placed on the saidpetition and the motion with which the same were filed wouldestablished that the date of filing was 12.03.2003. Thus it is clear thatthe defendant's registered Attorney-at-Law's affidavit had not beenfiled along with the said petition and affidavit but filed subsequentlywhen filing the counter affidavit.
What is left for consideration now is the supporting affidavit of thedefendant filed along with the present petition, wherein he has takenup the position that (vide paragraphs 18 and 19 of the affidavit) he toomaintains a diary and on 29.11.2002 when the delivery of judgmentwas postponed he made a note of it in his pocket note book and lateran entry was made in his diary for 29.11.2002 to the effect that thejudgment had been postponed for 27.02.2003. Further it is stated thathe having obtained a diary for the year 2003, under the date
he noted that the judgment in this action was due on thatdate. According to paragraph 19 it is stated that he and his registeredAttorney-at-law were both present on Court on 27.02.2003 expectingthe delivery of the judgment since this case was not called oninvestigating as to why the same was not called his Attomey-at-Lawhad found that it had been called on 07.02.2003 and judgment hadbeen delivered on that day in favour of the plaintiff and he wished toprefer an appeal against the same.
It is seen from paragraph (20) of the affidavit that his position hadbeen on all previous dates the judgment was due to be pronouncedthe only day he was not present was the 07.02.2003, as he wasunaware of the said date (07.02.2003) having mistakenly heard andnoted down on 29.11.2003 the next date as 27.02.2003. Thedefendant's position that he and the defendant’s registered Attorney-at-Law both were present on 29.11.2002 is contradicted by theJournal Entry No. 3 of the above date. This Journal Entry does notreflect anything else other than the fact that the judgment was duefrom the predecessor and to inform the date to him. The aboveJournal Entry bearing the date 29.11.2003 is to the following effect:
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This alone cast a doubt with regard to the defendant's positionthat he and his registered Attorney-at-Law both were present in Courton 29.11.2002 and the next date was mistakenly read and noteddown as 07.02.2003. Even assuming that they were present and theydefendant having heard the next date as 07.02.2003, what has to be 190now considered is whether it would amount to 'a cayse not within hiscontrol' from complying with the provisions of Sections 754 and 755of the Civil Procedure Code. In the case of Rankira v Silindi/v washeld that:
"A mistake or oversight on the part of the proctor of a party to asuit is not such cause within the meaning of section 765 of theCivil Procedure Code as would enable such party to the relief ofleave to appeal notwithstanding the lapse of the time."
In the instant case the notice of appeal had been filed out of timesolely on the ground that having mistakenly noted down the wrong 200date by the defendant and the registered Attomey-at-Law. In thiscontext it would also be pertinent to consider the decision in Julius vHodgsori2) by which the following principle was offered:
"The practice is not to give leave to appeal where the onlyground relied on is that the applicant or his proctor made somemiscalculation of time or some other mistake, or that the failurewas due to the proctor's neglect."
In the case at hand same mistake is said to have committed bythe defendant and the Attorney-at-Law both to wit: 'noting down thewrong date'. When the above principles are applied a mistake with 210regard to taking down of the wrong date (for delivery of the judgment)by a party and his Attorney-at-Law cannot be considered as a groundthat falls within the purview of 'causes not within his control'.Furthermore in the present case Vide the relevant Journal Entryneither the defendant nor his registered Attorney-at-Law was presenton the relevant date (29.11.2002) and a doubt has arisen with regardto the defendant's alleged position of writing down the wrong date on
29.11.2002.

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In this Court with the motion dated 12.05.2003, when filing thecounter affidavit the defendant had tendered documents marked as X 22019 to X 21.
X20 being an affidavit sworn by another Attomey-at-Law Ms.Nandanie Arumahannadi bears the fact that on 07.02.2003 shemoved for postponements in cases of Attomey-at-Law Saroja Mendisand this number was not included in that list of cases. The position ofthe defendant and his Attomey-at-Law Mendis also was that both didnot appear on 07.02.2003. (the date of the delivery of the judgment)
So, this affidavit (X20) too confirms nothing but the position that thedefendant's registered Attorney-at-Law Ms. Mendis had not appearedin Court on 07.02.2003. The affidavit of the defendant’s registered 230Attorney-at-Law Ms. S. Mendis also confirms the above position andall what is stated is that she was unaware of the date 07.02.2002 inthis case.
In the foregoing circumstances I am unable to conclude that thecircumstances enumerated as above by the defendant in this casecould be considered as causes not within his control from complyingwith section 754 and 755 of the Civil Procedure Code. However, thequestion with regard to whether the defendant has a good ground ofappeal has to be examined. Having examined the judgment, I amunable to assert that there is a good ground of appeal.240
For the above reasons I am inclined to dismiss the presentapplication of the defendant-petitioner and same is hereby dismissed.
In all circumstances no order is made with regard to costs.
SRISKANDARAJAH, J. – I agree.
Appeal dismissed.