064-NLR-NLR-V-61-L.-G.-KANAGARATNAM-and-others-Appellants-and-S.-A.-SUPPIAH-Respondent.pdf
T. S. FERNANDO, J.—K-anagaratnam v. Suppiah
257
1953Present: Sansoni, J., and T. S. Fernando, J.
G. KANAGARATNAM and others, Applicants, and S. A. SUPPIAH,
Respondent
S. G. 290—Application under Pule 25 of the Pules in the Schedule to theAppeals (Privy Council) Ordinance {Cap 85) for dismissal, on the groundof non-prosecution, of the appeal to the Privy Council against judgment of theSupreme Court in S. C. 262/D. C. Nuwara Eliya 3,181
Privy Council—Grant of final leave to appeal—Failure of appellant to serve list ofdocuments within JO days—Active prosecution of the appeal notwithstanding'the omission—Application by respondents for dismissal of appeal for non-prosecution—Effect of delay—Appellate Procedure {Privy Council) Order,1921, Rules 10,11,18—Appeals (Privy Council) Ordinance (Cap. 85), Schedule,Rule 25.
Despite failure to comply •with, the requirements of Rule 10 of the Appellate-Procedure (Privy Council) Order, 1921, after he had obtained final leave to-appeal to the Privy Council, the appellant incurred substantial expenses in.getting the copies of the record printed. He hod, further, been allowed bythe Supreme Court itself an extension of time for the delivery of the prints to-the Registrar.
Held, that the appeal should not be dismissed for non-prosecution under-Rule 25 of the Schedule to the Appeals (Privy Council) Ordinance.
Held further, that the fact that the respondents waited nearly eleven months-,after final leave was granted before moving the Supremo Court under Rule 25-to have the appeal dismissed for non-prosecution was an additional ground for-refusing the application.
-^APPLICATION to have an appeal to the Privy Council dismissed on.the ground of non-prosecution.
JET. W ■ Jayewardene, Q.C., with D. R. P. GoonetiUeke and L. C. de S..Seneviratne, for the Defendants-Respondents-Applicants.
S. J. V. Chelvanayakam, Q.G., with T. K. Curtis., for the Plaintiff-Appellant (respondent to the application).
Cur. adv. vult.
November 26, 1958. T. S. Fernando, J.-—
Appeal No. 262 of 1955 preferred to this Court against a judgment ofthe District Court of Nuwara Filya in Case No. 3,181 was decided on.28th June 1957. The party unsuccessful in the Supreme Court, viz.,the plaintiff, obtained from this Court on 28th August 1957 final leave,to appeal to Her Majesty in Council.
358
T. S. FERNANDO, J.—Kanagaratnam. v. Suppiah
=• On 23rd July 1958, this application No. 290 was made to this Courtby the 1st to 7th substituted-defendants (who are some of the respondents*to the appeal to the Privy Council) under Rule 25 of the Rules containedin the Schedule to the Appeals (Privy Council) Ordinance (Cap. 85) fora declaration that the appeal stands dismissed for non-prosecution. Thereason advanced in support of the application is that the appellant hasfailed to comply with the requirements of Rule 10 of the Appellate Pro-cedure (Privy Council) Order, 1921, which requires the appellant, withinten days after obtaining final leave to appeal, to serve on the respondenta list of all such documents as he considers necessary for the due hearing ofthe appeal. The appellant admits the failure to comply with Rule 10. Ifnothing further had taken place after the failure of the appellant to complywith Rule 10, there would in my opinion have been no difficulty indeclaring this appeal dismissed for non-prosecution.
The appellant however submits without any contradiction by the res-pondents that the printing of the record which is being printed in Ceylonis well under way. No material has been placed before us by either sideto show in what circumstances the Registrar came to certify the recordfor printing without having before him the list referred to in Rule 10 ofthe Appellate Order, but a sum of Rs, 1,253*25 has undoubtedly beenpaid by the appellant for a certified copy of the record necessary beforeprinting eaD be undertaken. The appellant has further submitted that hehas already incurred liability to the printers in a sum of Rs. 4,500 andthat part of the printing is already completed in the sense that theproof copies of one half of the record have been sent in August and Septem-ber 1958 to the Registrar for correction of errors.
It would also appear that the appellant had on 19th March 1958 madean application to this Court under Rule 18 of the Appellate Order forextension by six months of the time allowed by Rule 11 to deliver theprints, and this application has been granted. The question of thefailure on the part of the appellant to comply with Rule 10 should pro-perly have been raised by the respondents at the time of this earlier appli-cation, but respondents’ counsel states that his clients had no notice of that•application. On inquiry made from the Registry we find that that appli-cation which beans No. 102 of 1958 has been made and granted ex parte.I may observe in this connection that it is desirable that applications forextension of time be considered only after notice to parties who may beeffected.
Our attention has been invited to the decision of this Court in SamelAppuhamy v. Peter Appuhamy1 where Gratiaen J. stated that this Courtshould not grant an extension of time for the doing of any act necessaryfor prosecuting an appeal to the Privy Council unless the applicant canshow that he has throughout exercised due diligence in prosecuting hisappeal, and that his failure to comply with the Rules was occasioned bysome circumstance beyond the control of himelf and his legal advisers.Respondents’ counsel argues that failure to comply with the requirementsof Rule 10 shows a failure to exercise due diligence. Appellant’s counsel,on the other hand, has submitted that in deciding whether the appellant
1 (,2331) 32 iv. JR. 496.
T. S- FER2TAKD0, J,—Kamaga/ratnam v. Suppiah
259
has failed to show due diligence the entire progress of the appeal must betaken into account. In Buddharakkita Thera v. Wijewardene1 this Courtdid declare an appeal dismissed for non-prosecution where on account ofthe negligence of the appellant’s proctor the list of documents referredto in Rule 10 was received by the respondent five days after the datespecified in the Rule. The facts of that case were, however, not com-plicated (a) by the appellant actually incurring, as in this case, substantialexpenses in the process of getting the copies of the record printed and (6)by the grant by this Court itself of an extension of time for the deliveryof the prints to the Registrar. In the case before us the presumptionof non-prosecution which may fairly be drawn from the failure to complywith Rule 10 is rebutted by the indication of active prosecution of theappeal evidenced by the expenditure of the substantial sums referred toabove. In these circumstances I am of opinion that the admitted failureto furnish the list of documents specified in Rule 10 should not be aground for the exercise by us of the discretion vested in us by Rule 25to declare the appeal dismissed for non-prosecution. In refusing to exer-cise our discretion in favour of the respondents we take into account alsothe circumstance that the respondents themselves waited nearly elevenmonths after final leave was granted before moving this Court under Rule25. They must have known not long after the grant of final leave thatthe appellant had omitted to take a necessary step. If they had themselvesexercised ordinary diligence they could have acquainted themselves withthe progress of the appeal. The respondent in Bxiddharakkita Thera v.Wijewardene, it must be noted, moved promptly in the matter of invokingthe Court’s discretion under Rule 25. If the present respondents hadbeen equally prompt the reasons for which we now distinguish that casefrom this would probably not have been available. The uncontradictedaffidavits presented by the appellant show that the printing had beenentrusted to the printers so long ago as 6th January 1958. For thesereasons the application of the respondents is refused. There will,however, be no order for costs.
The appellant himself has on 19th September 1958 moved underRule 18 of the Appellate Order for an extension of time till the end ofNovember 1958 for the delivery of the prints to the Registrar, In supportof this motion an affidavit has been submitted by the printers that theprinting has been delayed, first by a strike at their printing works lastingtwo months and thereafter by the non-return by the Registrar of theproof copies after correction of errors. We therefore grant the prayeran the appellant’s motion; but as it has been admitted before us that evenat this late stage the list contemplated in Rule 10 has not been furnished,we make the grant conditional on the appellant complying with therequirements of Rule 10 within seven days after today. If further timeis required by the appellant to comply with Rule 11 he must make to this-Court a fresh application therefor with notice to the respondents.
Saksoot, J.—I agree.
Application for dismissal refused.
1 (1958) 59 N. L. B. 409.