129-NLR-NLR-V-44-HUSSAIN-Appellant-and-ABDEEN-Respondent.pdf
KEUNEMAN J.—Hussain and Abdeen.
511
1943Present: Keuneman and Jayetileke JJ.
HUSSAIN, Appellant, and ABDEEN, Respondent.
Application for Conditional Leave to appeal to thePrivy Council.
126—D. C. Colombo, 12,034.
Privy Council—Application for conditional leave—Notice to' respondent—Computation of time—Supreme Court Vacation Ordinance, s. 8.
In the computation of time within which notice of application forconditional leave to appeal to the Privy Council should be given to the .respondent, Sundays and public holidays should not be excluded.
T
HIS was an application for conditional leave to appeal to thePrivy Council.
N. Nadarajah, K.C. (with with V. A. Kandiah), for defendant, appellant.C. Thiagalingam for plaintiff, respondent.
Cur. adv. vult.
September 16, 1943. Keuneman J.—
Objection is taken by the respondent to the grant of conditional leaveon the ground that the appellant has failed to give the respondent noticeof this application within fourteen days from the date of the judgment.The judgment of the Supreme Court was delivered on July 29, 1943,and notice was served on the respondent on August 27, 1943. Fromthis period the Court vacation has to be excluded, (see Pathmanathan v.The Imperial Bank of India ‘ followed by Palaniappa Chetty v. MercantileBank of India*). But even after excluding the vacation, more than .14 days elapsed between the judgment and the service of the notice ofapplication. The notice was in fact served through the Supreme Court.
1 16 X. i. S. 438.1 39 N. L. B. 103.
44/37
3 43 N. L. B. 352.
512
KEUNEMAN J.—Hussain and Abdeen.
Mr. Nadarajah contends that he has complied with the necessaryformalities on two grounds. First, he points out that the period includesone public holiday, July 31, and three Sundays, namely, August 1, 8,and 22. He claims that those days also should be excluded. If this iscorrect, the service of the notice of application was in time.
Mr. N'adarajah contends that these days must be regarded as “daysincluded in a vacation ”, within the meaning of section 8 of the SupremeCourt Vacations’Ordinance (Chapter 10). I cannot accept this contention.No doubt the word “ public holiday ” has been defined under section 2,but this appears to be only for the purpose of explaining the use of theword in section 4 (1), and section 9, and in .each of those sections a sharpdistinction is drawn between “ vacation ” and “ public holiday Thereis no reference to Sundays in this Ordinance.
Section 8 lays down that where “ any limited time not exceeding onemonth is appointed or allowed for the doing of any act or the taking of anyproceeding in the Supreme Court, no days.included in a vacation shall bereckoned in the computation of such time unless the Court otherwisedirects ”.
The Holidays Ordinance (Chapter '135) enacts in section 4 that theseveral days mentioned in the second schedule shall in addition toSundays, be dies non, and shall be kept, (except as provided in theOrdinance) as holidays in Ceylon. There is no section in this Ordinancesuch as section 8 of the Supreme Court Vacation Ordinance dealing with,the computation of the time withip which an act has to be done or aproceeding taken.
We are accordingly thrown back upon the Interpretation Ordinance(Chapter 2), section 8. In the computation of time, within which anact is to be done or a proceeding taken, it is only if the limited perioddoes not exceed 6 days, that intervening Sundays and public holidaysare to be excluded. Otherwise if the last day of the limited periodfalls on a Sunday or public holiday, the act will be regarded as properlydone or the proceeding properly taken on the next day thereafter.
In 'the present case .section 8 of the Interpretation Ordinance, has noapplication, and Mr. Nadarajah’s argument on this point- fails.
The next point urged by Mr. Nadarajah is based upon section 5 of theOrder of the Supreme Court made under chapter 85, which is as follows : —“ A party who is required to serve nny notice may himself serve itor cause it- to' be served, or may apply by motion in Court before asingle Jjidge for ah order that it may be issued by and served throughthe Court; and in the latter Case he shall, within two days after obtain-ing the order, Todge in the Registry a notice in duplicate, prepared for theRegistrar’s signature and duly stamped. The notice may be servedeither on the party or on his proctor.”
It is not in dispute that the' motion of the appellant, was filed in theRegistry on August 14, which was in the circumstances within thefourteen days, but it was not brought before a Judge in Court untilAugust 27, when it was allowed, and the notice was served on the sameday on the respondent. This was after the fourteen days had elapsed-Mr. .Nadarajah contends that under section 5 of the Order, it is a sufficientsubstitute for service of the notice if it is filed in the Supreme Court
HOWARD C.J.—Rodrigo and Ebrahim.513
Registry. But the section does not support- him in this respect for itspeaks of an application by motion in Court before a single Judge. Therewas no such application in this case until August 27. The section itselfdraws a distinction between a motion before a Judge in Court, and thelodging of a notice in the Registry.
I wish to make it clear that in dealing with this argument, I haverefrained from deciding the question whether section 5 of the Order ofthe Supreme Court in fact modifies the language of rule 2 of the Scheduleto chapter 85. I may point out that the requirement in the rule is that •notice of the intended application has to be given to the opposite partywithin fourteen days.
Mr. Nadarajah’s argument on this point also fails.
The application is dismissed with costs.
Jayetileke J.—I agree.
Application dismissed.