095-NLR-NLR-V-61-A.-HAJI-HABIB-CO-CEYLON.LTD-Appellant-and-KUTHALATHAMMAL-Respondent.pdf
BASZSrAUAKE, C.J.—Saji Habib Co. (Ceylon,), Ltd. v. Kuthalathammal 393
1959Present: Basnayake, S.J., and Pnlle, S.
A. KAJI HABIB CO. (CEYLON), LTD., Appellant, and XTJTHALA-
THAMMAL, Respondent
S. C. 1—D. C. (Inty.) Colombo, 5914jMB
Appeal—Application for typewritten copies—Failure to furnish therewith Sachcherireceipt regarding deposit of prescribed fees—Abatement—Civil AppellateHides, 1938, Buies 2 (7), 4—Payment into Court Order, 1939.
Under Rules 2 (1) and 4 of the Civil Appellate Rules, 1938, read together withthe Payment into Court Order, 1939, an appeal will he deemed to have abatedif the application for typewritten copies is not accompanied by the Kaeheherireceipt showing that the prescribed fees have been deposited in the UachcherL
ATi from an order of the District Court, Colombo.
A. C. Nadarajah. with G. Ranganaihan, for Plaintiff-Appellant.
S. Sharvananda, for Defendant-Hespondent.
October 21, 1959. BaSjnayake, C.J.—
Learned, counsel for the respondent has taken a preliminary objectionto the hearing of this appeal. He submits that the appeal must be•deemed to have abated by the operation of Hole 4 of the Civil AppellatePules, 1938, as the appellant has failed to make the application for type-written copies of the record in accordance with those Pules. Pule 2 (1)requires that every application for typewritten copies of the record shallbe accompanied, by the fees prescribed in the schedule to the Civil Ap-•peliate Pules, 1938. In the instant case the application for typewrittencopies was handed on 26th December 1958 but was not accompanied by-the fees or proof that the fees had been deposited at the Kachcheri.Learned counsel for the appellant relies on the case of Sopaya Peirisand another v. Wilson de Silva 1. In that case this court held that therequirement that the application for typewritten copies of the recordshould be accompanied by the fees prescribed in the schedule was renderedimpossible of performance, in the sense that neither the Judge nor theofficers of the eourt are permitted by the existing administrative machi-nery, the Payment into Court Order, 1939, and the financial regulationsapplicable to the courts, to accept the prescribed fees in cash even iftendered along with the application. In the same judgment this eourtheld that in view of those regulations and Order it would be sufficientcompliance with Rule 2 (1) if the prescribed fees were paid into the Kach-eheri and the Sachcheri reeeipfc accompanied the application for type-written copies.
1 (1957) 59 N. L. B. 73.
894: BASNAYAKE, C.J.—Haji Habib Oo. (Ceylon), Lid. v. Kuthalathammal
In the course of the argument my brother Pulle drew my attentionto the fact that there is no real conflict between the Civil Appellate Rules,1938, and the Payment into Court Order, 1939. The Payment into CourtOrder, 1939, provides:
“ 1. (1) Where any person elects or is required by any order of Courtor by any written law for the time being in force, to make paymentof any money into Court, in connection with any action or proceeding,the payment shall not Jbe made otherwise than in accordance with theprovisions of the next following paragraphs of this order, and whereany such person is represented by a proctor, the payment shall not bemade except through that proctor. ”
It further provides that—
(2) (a) Whenever any person whether acting for himself or as proctorfor any other person, has occasion to pay money into Court, he shallsignify his intention so to do, in the case of a District Court, to theSecretary or, in the case of a Court of Requests, to the Chief Clerkof the Court, either personally or by letter, and the Secretary or theChief Clerk, or other officer duly authorised for the purpose by theCourt, shall furnish such person with a deposit note in such form asmay be prescribed by the financial Regulations of the Governmentfor the time being in force. Such person shall deliver the depositnote, or send it by post, together with, the money to the Kachcheri orTreasury of the district. ”
and
Receipt of the money at the Kachcheri or the Treasury shall beacknowledged by the signature oi the Government Agent or theAssistant Government Agent or other officer duly authorised in thatbehalf, on that part of the deposit note which hears the heading‘Payer’s Slip’, and such part shall be detached and delivered or sent bypost to the person who made the payment, the other part being retainedat the Kachcheri or Treasury as the authority for the retention of themoney. The usual Kachcheri receipt shall he forwarded to the Court-forthwith. ”
Clause (5) provides that—
In each of the cases referred to in the foregoing paragraph the-date of the Kachcheri receipt shall he deemed to be the date ofpayment into Court.
When the Civil Appellate Rules are read together with the Paymentinto Court Order, 1939, it would follow that the application for typewritten,copies shall be accompanied by proof that the prescribed fees have beendeposited in the Kachcheri and that proof can only be furnished by theKacheheri receipt. In the instant ease the Kachcheri receipt did notaccompany the application for typewritten copies. In our opinion the*
The Queen v. (1)Fernando and {2)Carolis
395
appellant has failed to make an application for typewritten copies inaccordance with the requirements of the Civil Appellate Rules and hisappeal must therefore be deemed to have abated.
y(fe accordingly reject the appeal.
J-—I agree.
Appeal rejected„