071-NLR-NLR-V-58-B.-J.-F.-MENDIS-Petitioner-and-B.-J.-M.-C.-FERNANDO-et-al.-Respondents.pdf
1956Present :H. N. G. Fernando, J., and Sinnetamby, J.
J. F. DIENDIS, Petitioner, and B. J. Itf. C. FERXAXDOcl ah, Respondents
S. C. Application -133, .
S. C. 1S1—D. C. Panadnra, J,S3-I
IN TJIE MATTER OF -AX ArPLICATIOX IX TERMS OF RULE 25 OF THE
Schedule to the Appeals (Privv Council) Ordinance (Cap. S5)
Privy Council—Grant of final leave to appeal—Delay of appellant thereafter to takenecessary steps—Dismissal- of appeal for non-prosecution—Appeals (i'liv.-tCouncil) Ordinance [Cap. Si). Schedule, Hide 2o—Appellate Procedure (PrivyCouncil) Order, 1921, paragraphs 11 and IS.
A party seeking to appeal to the Privy Council from n judgment of theSupreme Court tens granted on November 11, 1055, final leave (o appeal. Heelected to print the record in Ceylon. On Xtay 4, I960, he was informed by theRegistrar of tlio Supremo Court tlmt the record was ready for printing, and howas requested to nominate a printer to whom the record was to ho entrusted for*printing. He failed to respond to this request until August 20, 10a6, and tliowork of printing was not commenced by t-lio printers until about November 1,1956.'
The appellant established no good cause cither for his failure to nominatea printer within a reasonable time after ho was called on to do so by the Regis-trar or for his delay in having the work of printing taken in hand. It was only-after his delay was brought to his notice by tho present application made onOctober 24, 1956, under Rule 25 of tlio Schedule to tiro Appeals'(Privy Council)Ordinance that he applied for relief and extension of time under paragraph ISof tlio Appellate Procedure (Privy Council) Order, 1921.
field, that tlio appellant clearly failed to show duo diligence for the purpose ofjjrocuring tho despatch of the record to England and that Iris appeal should,uneler Rule 25 or the Schedule to the Appeals (Privy Council) Ordinance, bedismissed for non-prosecution..
-/^t-PPTjIGATIOX iii terms of Pule 25 of tlio Schedule to the Appeals(Privy Council) Ordinance.
K.G. W iK-rantanayale, Q.C.. with T. B. DismnayaXe. for tho plaint iff-petitioiier.•
Walter Jaynwardcnc,respondent-.
with Wevillc Wijeratne, for the defendants-
Car. adv. rail.
November 23, 1956, H. X. G. Fernando, J.—
This is an application under Pule 25 of the Privy Council AppealsOrdinance Ch : So N. L. E. to declare that the respondent's appeal tothe Privy Council in S. C. 1S1/L-53, 3D- C. Panadnra 1 S34, stands dis-missed for non-prosecution. The ground upon which this Court may
make such a declaration is that the appellant in the appeal had failed“ to show due diligence in taking' all necessary steps for the purpose ofsecuring despatch of the record to England'
Final leavo to appeal was given by this Court onllth November 1935 ;the appellant elected to print the record in Ce3fIon and according^ underparagraph 11 of the Appellate Procedure (Privy Council) Order 1921it was his duty to deliver the prints to the Registrar for examination andcertification at the latest on or about 11th January 1956. It is unneces-sary to consider whether the failure to compty with this obligation estab-lished a want of due diligence on the part of the appellant because hiswant of due diligence is conclusively established by other circumstances.
On the 4th of Ma3r 1956, the appellant was definitely informed by theRegistrar of this Court that the record was read3r for printing, and hewas requested "to nominate a printer to whom the record was to be en-trusted for printing. Despite several letters inviting his attention hefailed to respond to this request until 20th August 1956 and no explana-tion has been offered for this failure. In his letter^ of 20th May 1956the appellant stated that “ he had made arrangements with Ceylon,Daily News, Lake House, Colombo, to print the record, and the Registrarforthwith transmitted the record to Ceylon Daily Net vs. Correspondencebetween Ceylon Daily News and the Registrar shows that on 1st November1956 the printers informed the Registrar that the work of printing " hasnow been taken in hand”. Tho most that is thus established in theappellant’s favour is that the work of printing was commenced at orabout 1st .November, and there is no explanation to show why the workwas not commenced earlier. Counsel for the appellant now submits thatthe appellant’s statements in August 1956 that he had “ made arrange-ments for printing ” must be taken to mean that he had paid CeylonDaily Neivs the cost of printing and that therefore the reason for dela3>-inust be taken to be that the printers were unable to take the work inhand before November 1956. We do not agree with this submission.The cxpx'cssion “ made arrangements ” might equally well refer to a mereundertaking on the part of Ceylon Daily News to print the record anddocs not fairly constitute evidence that paynnent had been made inadvance. Hence it is equally possible that the delay in commencing thework of printing was due to the fact that the printers waited until pa3rment.was actually made. In the absence therefore of positive evidence to showthat the delay in the commencing of the printing was not due to the faultof the appellant, counsel’s explanation for the delay is not an acceptableone. ^At the date of the present application to this Court, therefore,the position was that the printing had not been taken in hand and theappellant has not satisfied us that the delay was due to an3" cause be3'ondhis control.-
In the result the appellant has established no good cause either for hisfailure to nominate a printer within a reasonable time after he was calledon'to do so by the Registrar, nor has he established that by October 24th1956, which was' the "date of tho present application, he had taken' thesteps within his power to secure that the work of printing would be'doneexpedi tio us ly.
298
Paragraph 18 of the Order enables this Court to extend the time allowedfor doing any act, but the appellant did not think fit to seek any suchrelief and thus to make sure that the delay in printing the record wouldnot prejudice his appeal. He only made the application for such reliefafter his delay had been brought to his notice by means of the presentapplication. _
We are of opinion that the appellant clearly failed to show due dili-gence for the purpose of procuring the despatch of the record and thatthe present application must therefore succeed. We would thereforegrant the declaration prayed for in the petition and direct that the costsincurred by the petitioner in consequence of the appellant’s filing anappeal to the Privy Council be taxed by the Registrar and be paid tothe petitioner out of the sum Rs. 3,000 deposited as security for costs.We direct also that the appellant do pay to the petitioner the taxed costsof this application and that the decree of this court in appeal betransmitted to the District Court for execution.
Application allotted.
Siknetamby, J.—I agree.