111-NLR-NLR-V-61-A.-W.-M.-SAMEEN-Appellant-and-P.-V.-S.-ABEYWICKREMA-et-al-Respondents.pdf
Sameen v. Abeya/wickrema
442
Present: H. 3f. 6. Fernando, J., and Sinnetamby, J.A. W. M. SAMEEN, Appellant, and P. V. S. ABE YA WIC-KJftEMA
e£ ah, Respondents
jff. a. 117—D. G. Colombo, 7069fL
Appeal—Notice of tender of security for costa—Obligation of appellant to file it in
Court—Civil Procedure Code, 88- 356, 756,
When notice of tender of security for costs of appeal is given forthwith ”as required by section 756 of the Civil Procedure Code, it must conform to theprocedure set out in section 356 of the Code. It must, therefore, be filedin Court and served on the respondent through the Fiscal. This role is subjectonly to two qualifications, viz., (1) the Court may, after the notice is duly filed,permit service in some other manner, and (2) notice of tender of security neednot be filed when security is waived by the respondent.
Judgment was entered in the District Court on February 15, 1957. Petitionof appeal was filed by the defendant’s Proctor on the following day, whichhappened to be a Saturday. No notice of tendering security for costs of appealwas filed in Court on that day. Instead, the appellant’s Proctor took the noticeon the same day to the respondent’s Proctors’ office after 1.00 p.m., by whichtime the office was closed and there was no one to receive it. On 18th February,which was the following Monday, the notice was submitted to the respondent’sProctors, who made the following endorsement thereon: “ Received noticesubject to objections”.
Held, that the notice of tender of security was not given “ forthwith ” inas-much as it was not filed iu Court on the day on which the petition of appealwas filed. The appeal must accordingly be held to have abated. If the res-pondent’s Proctors bad accepted the notice unreservedly, the respondentwould have been estopped from questioning the validity ef the service of thenotice.
H. 17. G. FER iSTAJSfX>C, J.—Sameen v. Abeyamiekrema
443
A
xjlPPSAIi from a judgment of the District Court, Colombo.
O.TMctgalingam, Q.O., -with E. A. G. de Silva, S. Sharvananda and
P.Balavadivel, for defendant-appellant.
H. W. Jayewardene, Q.G., with A. L. Jayasuriya and G. P. Fernandofor plaintiff-respondent.
Gut adv. wit.
February 1, I960. H. N. G. Feuntaicdo, J.—
During the argument on the preliminary objection taken on behalfof the respondents to this appeal, there seemed to me to be two groundsupon which the objection might fail. In agreeing therefore, with thecontrary view expressed by my brother Sinnetamby in his judgment,it is well that I should briefly indicate the reasons which induce me to-agree.
When a petition of appeal has been received by the Court of firstinstance, section 756 of the Code requires the petitioner to forthwith.give notice (of security) to the respondents. As long ago as in the year1920, Bertram C.J. held in Fernando et at. v. Nikulan Appu et dl.1 thatthe section intended that the notice should be filed on the same day asthe receipt of the petition is verified, and in the present case it is perfectlyclear that “ the same day ” was 16th February 1957, for the petition ofappeal was undoubtedly received by the District Judge on that day.That being so, the filing of a notice on 18th February cannot now beheld to be in compliance with section 756. But Bertram C.J. alsopointed out that “forthwith ” means “within a reasonable time fromthe point of view of the person who is called upon to give the notice ”.At first sight, therefore, there is scope for the argument that if the noticeis to be served directly on the respondent or bis proctor, it will be dulygiven if served with reasonable promptitude, and that service on themorning of Monday 18th February after an unsuccessful effort at serviceafter “ early closing ” time on the preceding Saturday was a service-“ forthwith ”. But section 756 does not stand alone, and has to beconstrued together with other relevant provisions of the Code and withsection 356 in particular. The latter section requires inter alia that all- notices shall, unless the Court otherwise directs, be issued for service to the-Fiscal …. under a precept of the Court …. and
undoubtedly applies to notices under section 756. While therefore anotice under section 756 may be given directly to a respondent orproctor and may be regarded as having been given forthwith even if itis so given directly on some date subsequent to the date of the receiptby the Court of the petition of appeal, this alternative to the mode ofgiving notice prescribed in section 356 cannot be recognized unless it is-adopted after a direction given by the Court in that behalf. No suchdirection was given by the Court in this particular instance, nor is rfcmaintained that any general direction authorising direct service- in such
1 (1920) 22 N. L. B. 1.
' M4
S. IT. G-. FERNANDO, J.—Samsen v. Abeyavnckrsma
cases is in force in the District Court of Colombo. In the absence of anysuch direction authorising an alternative mode of service, the provisionregarding service through the Fiscal applied in the present case, andaccordingly the failure to file the notice of security on 16th February1957 involved non-compliance with the requirements of section 756.
On the second question, whether relief should be granted under sub-section (3), the decided cases are conclusive. The fact that relief wasgiven in the case referred to above is of no avail, because tbe groundfor relief in that case was that the word “ forthwith ” had previouslynot been strictly construed in practice ; in other words, a wrong practicepreviously acquiesced in by the Courts, of accepting as valid the“ delayed ” filing of notices of security was excused on that particularoccasion. But the practice of giving notice directly without a directionfrom the Court under section 356 is one recognized if at all only by prac-titioners and not by the Courts. The custom for practitioners to acceptdirect notice without raising objections as to the mode of service cannotbe said to have established a practice of the Courts, for the very reasonthat such a custom has apparently been followed without any directionin that regard from the Court.
In seeking relief counsel for the appellants has relied on certain obser-vations of Soertsz, J., in De Silva v. Seenathumma et al. :—“ Evidentlythe appellants hoped that it would be possible to serve the notices on therespondents through the Fiscal, within time, but in view of the peremp-tory direction in section 756 that the security should be accepted withintwenty days, they ought to have considered the desirability of asking forspecial directions to be given by the Court for the service of this notice.They could, for instance, have asked to be allowed to serve the noticeson the proctors for the respondents ”.1 He argued that whereas someperiod of time would necessarily elapse before a- notice filed in Court canreach a respondent through service by the Fiscal, the device of directservice in the present case enabled the appellant to deliver the notice toHie respondents’ proctors on 18th February, i.e., much sooner than itwould have reached the proctors if served through the Court. Soertsz, J.,had observed that in some cases direct service would be necessary inorder to ensure that the notice would reach the respondents before thedate fixed for tendering security. Indeed in the case of De Silva, v.Seenathumma et al. (supra) the Court granted relief in respect of theomission to effect such direct service. But that decision is no authorityfor the proposition that an appellant is at liberty at his option to effectdirect service in lieu of filing the notice of security. Soertsz, J. himselfunderlined the words “ unless the Court otherwise directs ”, which occurin section 356, and said clearly that the appellants “ could have asked tobe allowed to serve the notices on the proctors for the respondentsBelief was there granted, not against a failure to file the notice forthwith,but only because a notice duly filed did not reach the respondent throughthe normal and authorised mode of service. Since notice of security wasnot duly filed in the present case, no question arises of giving reliefagainst some other omission on the part of the appellants.
1 (1940) 41 N. L. B. 241 at page 248.
SUOTETAMBY, J.—Sameen v. Abeyawiclcretna
445
SlPTEraSTAMBY, J.—
A preliminary objection was taken to the hearing of this appeal bylearned counsel who appeared for the plaintiff respondent on the groundthat notice of tender of security for costs of appeal was not given“ forthwith ” by the defendant appellant.
Judgment in this case was delivered on the 15th of February, 1957,which happened to be a Friday. On the 16th February, 1957, the proctorfor the defendant did not file the necessary papers in Court for isgm’ncrnotice on the respondents for tendering security for costs of appeal.Instead, he drafted a motion in the following terms :—
“ TO THE HONOURABLE THE CHIEF JUSTICE AND THEOTHER JUDGES OF THE HONOURABLE THE SUPREMECOURT OF THE DOMINION OF CEYLON.
Messrs. De Silva & Mendis,
Proctors for the respondents.
TAKE Notice that the petition of appeal of the Appellant presentedby me in the abovenamed action on the 16th day of February, 1957,against the judgment of the District Court of Colombo dated 15thday of February, 1957, in the said action having been received by thesaid Court counsel on my behalf will on the day of 8th March, 1957,at 10.45 o’clock in the forenoon or so soon thereafter move to tendersecurity in a sum of Rs. 250 for any costs which may be incurredby you in appeal in the premises and will on the said day deposit inCourt a sufficient sum of money to cover the expenses of serving noticeof .appeal on you.
The 16th day of February, 1957.
(Sgd.): In Tamil.
Appellant.
(Sgd.) : K. Rasanathan,
Proctor for appellant. ”
Learned counsel stated at the bar, and it is supported by an affidavitwhich forms part of the record, that his proctor on the morning of the 16thof February, 1957, contacted on the telephone one of the members of thefirm of proctors representing the plaintiff and told him that he (thedefendant’s proctor) would be sending the motion in question and thatthe member of the firm informed him in reply that he may do so but thatthe matter was being dealt with by another member of the firm. Thistelephone conversation was stated to have taken place at 11.15 a.m.Subsequently the motion was actually taken to the plaintiff’s proctor’soffice after 1.00 p.m. by which time the office was closed and there wasno one to receive it, the 16th being a Saturday. Apart from this no othereffort was made to contact the plaintiff’s proctors. As a result the motion
446
SUTNETATVT&y, J.—-jSameen v. Abeyawiclcrema.
•was not dealt -with, on that day; instead, it was submitted to the plaintiff’sproctors on ISth February, 1957, which was the following Monday, andthe plaintiff’s proctors made the following endorsement thereon
“ Received notice, subject- to objections.
De Silva & Mendis,
18th February, 1957
At one stage learned counsel for the defendant contended that Section756 did not require notice to be given in any particular way and evensuggested that it would have been sufficient if it had been given orally.When his attention was drawn to the provisions of Section 356 however,,he abandoned this argument.
It will thus appear that the actual notice was not served on the res-pondent or his proctors on the day on which the petition of appeal wasfiled although an intimation was made to them that it would be sent tothem for attention. The notice was eventually filed in Court on 18thFebruary, 1957, i.e. on the Monday following and it bears the Court Sealof that date. Subsequently on the 28th of February there was filed anaffidavit of the proctor, to which I have already referred, explaining thereason for not giving notice of tender of security on the same day as thepetition of appeal.
Feeling unhappy about the turn of events the defendant’s proctor,thereupon, apparently with the object of defeating any objection whichmay be taken, filed another petition of appeal on 28th February, 1957, inidentically the same terms and accompanied it with other necessarypapers including notices of tender of security for service on the respondentsreturnable on 8th March, 1957, and asked for a payment voucher forthe security offered in cash. This was allowed for the 8th of March,1957, which was also the date mentioned in the original notice dated 16thFebruary, 1957. Unfortunately in the second notice too there has beena careless mistake, for the proctor says therein that the petition ofappeal of the appellants presented on the 16th of February, 1957, havingbeen accepted he will on the 8th March, 1957, tender the security. Hedoes not refer to the petition filed on the 28th of February, 1957. Apart,therefore, from any question as to whether a defect of this nature can becured by resorting to the doubtful expedient of filing another petition ofappeal in identical terms on a subsequent date on which date a secondset of notices for tendering of securities is also filed, there has been,in this case, the fact that the second notice for tendering security refersonly to the first petition of appeal filed on 16th February, 1957. In anyevent, it seems to me that the imperative terms of section 756 thatnotice should be tendered forthwith cannot be negatived and set atnought by an appellant adopting the methods which the appellant soughtto employ in this case.
On 8th March, 1957, although according to the journal entries there wasno return to the notice of security, counsel for the plaintiff respondentstook the objection that the notice of tendering security was not givenforthwith and moved that the appeal be abated. Argument was heard
SINNETAMBY, J.—Sameen v. A beyawiohrema
447
and learned counsel for the appellants requested that the matter be leftfor decision by this Court. In the course of bis order the learned trialJudge left the matter open and directed that the appeal be forwarded tothe Supreme Court. He also made a note to the effect that on the 16thFebruary, 1957, he was in his Chambers between 10.30 a.m. and 12.30p.m. but he was unable to say definitely whether it was on 16th February*1957, that he initialled the entry in the journal of that date relating to thefiling of the petition of appeal. He continued :—
“ though of course it is impossible to say whether I initialled thisparticular record on that day it is the most probable thing. Records-are sometimes sent np to chambers a day or two after the actual journalentry is made but that would be in routine matters like filing lists ofwitnesses and so on. ”
So far as this court is concerned having regard to the journal entries,it must be presumed until the contrary is proved that the entries arecorrect and that the petition of appeal was accepted by the Judge on the-16th February, 1957. Vide the decision of a divisional court in S. SeebertSUva v. F. Aronona 8ilva.1
The relevant facts, therefore, are that judgment was delivered on the15th of February and on the following day the petition of appeal wasfiled. Notice of tender of security was not filed on the same date;instead, defendant’s proctor sought to serve it himself without theintervention of court by having the notice sent to the plaintiff’s proctor,but this was not served as plaintiff’s proctor’s office was closed when,the messenger reached it. Notice was accordingly served only on thefollowing Monday, namely on the 18th of February.
The objection now taken is that the appeal should have been abated,by the District Judge and that in as much as he left it for decision bythis Court, an order of abatement should now be entered.
The first authoritative decision on this question is the case of Fernandov. Nikvlan Appu 2 wherein Bertram C.J. interpreted the word “ forth-with ” and said :—
“ I think, however, that, as a general rule, it is the intention of thesection that the notice should be filed on the same day as the receiptis verified or can reasonably be verified. ”
In regard to “ receipt ”, the learned Chief Justice took the view thatit involved receipt of the petition by the court and not by the officerwho ordinarily deals with the manual handling of the petition of appealwhen it is tendered to court. That view, however, has been dissented,from by the Supreme Court in the recent case of TJienuwara v. The-nuwara3. Basnavake, C.J. therein having discussed the matter tookthe view that a petition of appeal is received by the court when it ishanded to the appropriate officer of the court at its office. Whicheverview one takes, in this case the journal entry shows that the judge accepted,the petition of appeal on the same date as it was manually handed over
1 {1957) 60 N. i. 3. 272.2 {1920) 22 N. I,. 3. 1.
3 {1959) 61 N. i. 3. 49.
448
SENISTETAMBY, J.—Sameen v. A. beyaunckre.ma
to the officer of the court. The obligation, therefore, rested on the plaintiffto give notice forthwith. In the case of Fernando v. Nikulan A,p,pu(supra) without discussing the matter, Bertram C.J. expressed theview that to give notice of tender of security, it is sufficient if thedocuments are filed in court and that view was confirmed and adoptedby a bench of five judges in the case of De Silva v. Seenathumma.Soertsz J. who delivered the judgment of the court said ;—
“ In my opinion it is clear from the words used in Section 756 thatwhen it was provided that notice should be given forthwith, what wasintended was that notice should be tendered or Sled forthwith, notthat it should be served forthwith. ”
If the appellant’s proctor had taken the elementary precaution of filing•notices of tender of security with the petition of appeal, he would havecomplied with this requirement. It is not too difficult a matter forproctors who file petitions of appeal, to tender, along with the petition,notices in the form prescribed and embodied in the schedule to the CivilProcedure Code and which can be printed or typed and kept in readinessfor essential particulars only to be filled up as required. Despite theseveral occasions on which the necessity for complying strictly with therequirements of Section 756 has been stressed by the Supreme Court,proctors still continue to be lax and negligent in the performance of their-duties. In the case of De Silva v. Seenathumma (supra) Soertsz, J. insumming up the conclusions reached by the bench stated, inter alia, that
“ notice of security, unless waived, must be given forthwith, that isto say, must be tendered or filed on the day on which the petition ofappeal is received by the court. ”
Section 356 of the Civil Procedure Code which was considered by thebench in that case expressly provides that
“ all processes of court …. and all notices and orders re-quired by this Ordinance to be given to or served upon any person shall,unless the court otherwise directs, be issued for service to the fiscal. ”
This is an important provision and, unless the court otherwise directs,a party is obliged to adopt the procedure set out in that section namely:—
“ have processes served through the fiscal. ”
That, however, is subject to the overriding power of the Court to directservice in some other manner. Attention to this provision is drawn bySoertsz, J. in De Silva v. Seenathumma (supra) in the following words :—
“ In view of the peremptory direction in Section 756 that the securityshould be accepted within 20 days, they (that is the appellants) oughtto have considered the desirability of asking for special directions to begiven by the court for the service of this notice. They could, forinstance, have a>sked to be allowed to serve the notices on the proctorsfor the respondents. ”
1 (1940) 41 N. I*. B. 241.
SEnSETAMBY, J.—Sameen v. A.beyavAchrema
449
If the appellant chooses not to tender copies of the notice of tender ofsecurity to court he does so at his peril. The only situation in which.Justice Soertsz contemplated the possibility of the notices not being filedin court is where security is waived. In such a case, despite the fact thatnotices are not tendered, the court took the view that the appeal will notabate on the ground that
“ a party may waive a rule of civil procedure intended for hisbenefit and such a waiver would estop him from -thereafter insistingupon the requirement he had waived. ”
Applying this principle to the facts of the present case, if the plaintiffrespondent’s proctor had accepted unreservedly the notice, which waseventually served on him, he may then have been estopped from raisingan objection to the hearing of the appeal; but, where he took it subjectto objections, he will not be so estopped.
The decision in Seenathumma’s case does not permit service of the noticein any other way than through the fiscal, except by an order of Courtauthorising such other mode of service. No permission was obtained,from Court in this case authorising service privately in the manner inwhich it was sought to be done. To my mind it makes no difference’that the notice could not be served on Friday the 18th. Even if it wasdelivered to the respondent’s proctor on the Friday and he refused toaccept it or accepted it subject to objections it would still be no service-at all. It is only if the respondent’s proctor accepted it without reser-vations, could the appellant be heard to say that the respondent waived a-rule of procedure intended for his benefit, and, therefore, is estopped fromquestioning the validity of the service. Proctors should realise theunnecessary risks they run when they ignore the express provisions ofthe Civil Procedure Code and adopt a mode of service based on an alleged,practice. It seems to me that the only mode of giving notice, forthwith,which would involve no penal consequences, is for the notice to be filedin court on the same day as the appeal is filed and then if it is feared thatthe notice cannot be served and the security accepted within the 20 daylimit, to seek and obtain permission of court to serve such notice, or a-copy thereof in some way other than through the fiscal.
Our attention was drawn to the case of Mohideen v. Dawood Saibo1 inwhich Soertsz, J. following Joseph v. Sockalingam Chetty 3 held that anotice sent by post within the time required by Section 756 was a sufficientcompliance. No reference was made to the earlier divisional bench case*of De Silva v. Seenathumma (supra), and Joseph v. Sockalingam Chetty(supra) was a decision under the rules governing appeals to the PrivyCouncil where there is no requirement similar to Section 756 in regard toservice forthwith. In my view the decision in Mohideen v. Dawood Saibo(supra) has not the same binding effect as the divisional bench case and, iffI may say so, with great respect, appears to have been wrongly decided.
I am, therefore, of the view that the notice of tender of security in thiscase was not given forthwith. The appeal must accordingly be abated.I would so order. The respondents will be entitled to the costs of appeal-
Preliminary objection upheld.
– {1942) 20 Law Recorder 131.- (1930) 32 N. L. R. 59.