099-NLR-NLR-V-44-NORIS-et-al.-Appellant-and-ANGAMMANA-Respondent.pdf
MOSELEY A.C.J.—Noris and Angammana.
—:v
Present : Moseley A.C.J. and Keuneman J.
130—D. C. Ratnapura, 6,719.
NORIS et al., Appellant, and ANGAMMANA, Respondent.
Appeal—Preliminary objection re inadequate stamps—No notice to appellant—Respondent deprived of costs.
Where an appeal was dismissed on a preliminary objection takenby the respondent, viz., that inadequate stamps have been tenderedin respect of the petition of appeal and the certificate in appeal and wherenotice of the objection had not been given to Counsel for the appellant,—Held, that the respondent should be deprived of his costs.
■A.PPEAL from a judgment of the District Judge of Ratnapura.
( 1 . .
N, E. Weerasooriya, K.C. (with him M. D. H. Jayawardene), for thefirst, second, and third defendants, appellants.
N. Nadarajah, K.C. (with him E. S. Dassenaike and H. W. Jayawardene),for the plaintiff, respondent.
29 June, 1943. Moseley A.C.J—
In this appeal objection was taken by Counsel for the respondent thatinadequate stamps have been tendered in respect of the petition of appealand the certificate in appeal. The position was that at the trial thefirst and second defendants were represented by one proctor and thethird by another. After judgment, the proxy granted by the thirddefendant in favour of Mr. Joseph was revoked and a fresh proxy filedin favour of the proctor who. was acting for the first and second defendants.So, at the time of filing the petition of appeal the three appellants wererepresented by- the- same proctor.,. It is not difficult, therefore, to discoverhow it came about that the document^ were stamped as if they wereone appeal instead of two. We felt, however, that we had no alternativebut to uphold the .objection and to reject the appeal even though itappeared to us that there was little, if any, merit in the objection. Inview of the fact that notice of the objection had not been given, to Counselfor the appellants and, in fact, the flaw in the stamping was onlydiscovered just before the hearing, we proposed to deprive the respondentof his costs as is customary in such cases. Counsel for the respondent,however, sought told raw a distinction between an objection in respect ofstamp duty and one for non-compliance with the provisions of section 756of the Civil Procedure Code. It seems to me that if any distinction isto be drawn it should be in favour of an objection which falls into thelatter class. The Courts in England have looked with disfavour uponobjections based upon the failure to Stamp a document, and in HomeMarine Insurance Co. v. Smithand Genforsikrings v. de Costa', thatdisfavour was manifested by depriving the successful party of his costs.Attention might usefully be directed to an examination of some observa-tions which occur in Donogh’s Indian Stamp Law, 9th edition, at page 332,whereat is cited the opinion of the General Council, of the Bar in regard.
1 {1898) 1 Q.B. 829.2 (1911)1 K.B. 2.37.
382
1943
DE KRETSER J—Amerasinghe and Weeratna.
383
tfu this matter. While the documents in respect of which objection was/taken in the two cases which I have mentioned were fundamental to thesuccess of the respective actions, I do not think that there is any differencein principle which should lead up to adopt a different attitude in respectof the documents under consideration in the present proceedings.
The appeal is therefore rejected without costs.
Keuneman J.—I agree.
Appeal rejected.