MUNICIPAL COUNCIL , COLOMBO, Appellant, and LETCHIMAN CHETTIAR, Respondent

049-NLR-NLR-V-44-MUNICIPAL-COUNCIL-COLOMBO-Appellant-and-LETCHIMAN-CHETTIAR-Respondent.pdf


Municipal Council, Colombo, and Letchiman Chettiar.
217
1943Present: Soertsz S.P.J. and Hearne J.
MUNICIPAL COUNCIL, COLOMBO, Appellant, andi LETCHIMAN CHETTIAR, Respondent.
Application for Conditional Leave to Appeal to PrivyCouncil in 69 D. C. (Int.) , Colombo, 3,092.
Privy Council—Conditional leave to appeal—Notice of application—Com-putation of period—Exclusion of vacation—Supreme Court—VacationsOrdinance, s. 8.
Where, on an application for leave to appeal to the Privy Council, theapplicant gives notice of his intended application to the opposite partywithout the intervention of the Supreme Court, he is not entitled to havethe days of a vacation excluded in the reckoning of the appointed period.
T
HIS was an application for conditional leave to appeal to the PrivyCouncil.
H. V. Perera, K.C. (with him N. Kumarasingham), for the respondent.—Notice of the intended application was not given to the respondentwithin the time-limit of 14 days fixed by rule 2 of the schedule of thePrivy Council Appeals Ordinance (Cap. 85). It was in fact served on us21 days after the date of the judgment of the Supreme Court. TheSupreme Court vacation cannot be excluded for the purpose of computingthe time-limit. Section 8 of the Supreme Court Vacations Ordinance(Cap. 10) permits exclusion only iri the case of an act to be done or proceed-ing to be taken in the Supreme Court. In the present instance noticewas served on us by the applicant himself without the assistance ofCourt. Three ways of giving notice are contemplated by order 5 (Vol. ISubsidiary Legislation, p. 468), and inasmuch as the applicant chose to .serve notice himself and not through Court, he cannot invoke the aidof the Vacations Ordinance, and computation of time will have to conformto section 8 of the Interpretation Ordinance (Cap. 2). See also Tarrant etal v. Marikar'. As regards the judgment in Palaniappa Chetty v.Mercantile Bank of India et aU, the statement that the vacation must beexcluded in calculating the 14 days’ notice is obiter.
There is no right of appeal to the Privy Council in the present case.This is not a civil suit or action such as is contemplated in section 3 ofthe Privy Council Appeals Ordinance. This is a case under the LandAcquisition Ordinance under which the District Court exercises a specialjurisdiction. See Soertsz v. Colombo Municipal Council’1; R. M. A. R. A.
R. R. M. v. The Commissioner of Income Tax *; Settlement Officer v.Vander Poorten et al. *; Kanagasunderam v. Podi Hamine °; Muttu-krishna v. Hulugalle
E. B. Wikremanayake (with him N. M. de Silva) for the applicant.—The statement in Palaniappa Chetty v. Mercantile Bank of India et al.(supra) that in calculating whether the respondent is given 14 days’ notice
1 (1934) 2 C. L. W. 373.1(193o)37 X. L. R. 447.
(1942) 43 -V. L. R. 332.> (1942)43 .V. L. R. 436.
3 (1930) 32 -V. L. R. 62.6 (1940)42 X. L. R. 97.
■ (1912) 13 X. L. R. 421.
218 SOEHTSZ SJJ.—Municipal Council, Colombo, an&.Letchiman Chettiar.
the days which fall within the period of a Supreme Court vacation mustbe excluded is not obiter. That ruling was given despite the fact thatthe judgment in Hayley and Kenny v. Zainudeen1 was cited in thecourse of the argument in that case.
The meaning of the term “action” in section 3 of the Privy CouncilAppeals Ordinance must be decided by reference to section 6 of the CivilProcedure Code. The present case may be deemed to be an action,ft cannot be said that under the Land Acquisition Ordinance there isappointed any special tribunal. That Ordinance recognises the existenceof the District Court as a tribunal and makes use of its existence. Thejurisdiction exercised by the District -Court under the Land AcquisitionOrdinance is derived from section 62 of the Courts Ordinance.
H. V. Perera, K.C., in reply.—The distinction between notice throughCourt and notice outside Court was not considered in Palaniappa Chettyv. Mercantile Bank of India {supra) -. The decision in Hayley and Kenny v.Zainudeen (supra) is of assistance in the present case.
There is no substance in the i distinction drawn between a referemceto the District Court as such and the appointment of a special tribunal;
■: ’' Cur. adv. trait.
March 8, 1943.' Soertsz S.P.J.— :
This is an applicatipn for 'conditional leave to appeal to His Majesty inCouncil from a judgment of this Court, fixing the amount of compensationdue to be paid to the respondent, on account of the acquisition by theapplicant, under the provisions of tHe Land Acquisition Ordinance, ofja piece of land held by the respondent as trustee for a certain HinduTemple.
The judgment 6f this Court was pronounced on December 17, 1942.The Christmas vacation of the Court, as fixed by the Supreme CourtVacations Ordinance, commenced'on December 22, 1942, and terminatedon January 12, 1943. Section 8 of the Vacations Ordinance provides
that-—
“ when bjr any Ordinance or rule regulating Civil Procedure or by anyspecial order of the Court any limited time not exceeding one month isappointed or allowed for the doing of any act or the taking of anyproceeding iri the Supreme Court, no days included in any vacationshall be reckoned" hi the computation of such time uMess the Courtotherwise directs. ”
It appears to me that, on a,proper interpretation,,tiie operation of this,section in regar d to the exclusion of the days of a vacation, is conditioned—
on the period appointed ;or allowed being a period not exceeding
a month ;
on the act to be done or the .proceeding to be taken, being an act
to Be, done or a, proceeding to be taken in the Supreme Court ;.
oil there being no other direction given by the Court.
In the case before us, conditions (a) and (c) are irrelevant. The onequestion is whether, in this instance, the acts to be done or the proceedingsto be taken in conformity with rule 2 of the Schedule'of rules annexed
1 (1923) 25 N. L. R. 312.
SOERTSZ S.P.J.—Municipal Council, Colombo, and Letchiman Chettiar. 219
to the Privy Council Appeals Ordinance were to be done or taken in theSupreme Court. In my opinion, it is beyond doubt that the phrase “inthe Supreme Court ” modifies both the “ act to be done ” and the“ proceeding to be taken ”.
Rule 2 of the Schedule requires that—
“application to the Court for leave to appeal shall be made by petitionwithin thirty days of the date of the judgment to be appealed from,and the applicant shall, within fourteen ^days from the date of suchjudgment, give the opposite party notice of such intended application.”These words are unambiguous and mean that the application for leaveto appeal has to be by petition to the Supreme Court and, therefore is“an act to be done” or “a proceeding to be taken” in the SupremeCourt. But the giving of the notice of the intended application need not bethrough the Court. This is made even clearer by order 5 of the ordersmade by the Judges of this Court. It provides that—
“a party who is required to serve any notice may himself serve itor cause it to be served, or may apply by motion in Court before a singleJudge for an order that it may be issued and served through theCourt. ”
It follows from rule 2 and order 5 read together that, so far as . theapplication for leave to appeal is concerned, the. days of the vacationmust be excluded in the computation of the thirty-day period appointedor allowed but that, so far as the giving of the notice of the intendedapplication is concerned, the exclusion of the days of the vacation incomputing the period of fourteen days depends on Whether or notoccasion arises for the applicant to seek; the assistance of the Court for thepurpose of issuing and serving that notice.
In this view of rule 2 of the Schedule, order 5 of the Judge’s Orders,and section 8 of the Vacations . Ordinance, the respondent concedes .thatthe application for leave to appeal is within the appointed period, buthe contends that in consequence of the course adopted by the applicantin this case, the notice of the intended application was served four daysafter the period appointed for that purpose had elapsed and that therewas failure on the' part. of the applicant to comply with an imperativerequirement of the law, and that his application must be rejected.
It is well established by rulings of this Court that compliance with rule2 is imperative and that it. is not competent for the Court to relax it.Weerakoon Appuhamy v. ,Wijesinghe_ and Tarrant & another v. Marikar",In the latter case, the applicant having done everything in hfs power togive to the opposite party notice of the intended application himself,and having failed to, dp that, came into .Court under order 5, and, bymotion, sought and obtained an order for the notice to be issued-andserved on the opposite party by the ■ Court. If the days of the vacationthat intervened between the judgment and his coming into Court underorder 5 were excluded his service of the notice of 'his intended applicationwould have been within the fourteen days appointed, but it was held1 30 N. L. R. 256.* 2 C. L. W. 373.
220 SOERTSZ S.P.J.—Municipal Council, Colombo, and Letchiman Chettiar.
that he had not complied with rule 2 inasmuch as,—the days of thevacation not having been excluded—he had failed to give notice withinfourteen days. That ruling, in my view, inflicted an unwarranted hard-ship on the applicant in that case for, it seems to me, that when an applicantwho having tried and failed to serve notice himself, comes into Courtunder order 5 seeking the assistance of the Court, he is doing an act ortaking a proceeding in the Supreme Court, and is entitled to have thedays of a vacation excluded in-the reckoning of the appointed period. Bethat as it may, the case now before us is very different. The applicantdrew up the notice himself, and served it himself. He found no occasionfor seeking the assistance of the Court under order 5. In these circum-stances, I fail to, see what logical or legal basis there could be for theclaim made on his behalf, that the days of the Christmas vacation shouldbe excluded. For the course he adopted the intervention of the Court wasnot, and did not become necessary “ in the erroneous view he appears tohave taken' of the meaning of Section 8 of the Vacations Ordinance. ”
It only remains to consider the ruling given in the case of PalaniappaChetty v. Mercantile Bank of India et al.' on which the applicant’s Counselrelied strongly. In that case, my Lord ;the Chief Justice and my brotherHearne J. held that—
“in calculating whether the respondents have'been given fourteendays’ notice of the intended application the days which fall within theperiod of the Christmas vacation must be excluded. ”
As this statement is unqualified, and as the facts upon which it isbased, do not appear sufficiently in the judgment, I have examined therecord and I find that the notices of the intended application were,eventually.,, issued and served on all the respondents by the Court on amotion made by the applicant to the Court under order 5. That rulinghas no application, therefore, to the present case in which, as alreadyobserved, the • applicant set out to give notice of the intended applicationhimself and never came into Court for that purpose. In such a case,the exclusion of the days of the Courts’ vacation is unwarranted. "
It seems to me, for the reasons I have given, that we have no alternativebut to sustain the objection taken that rule 2 of the Schedule of Ruleshas not been complied with, and to reject .this application.
The respondent took a second objection to this application on theground that the judgment from which the' applicant desires to appealto His Majesty in Council is hot such “ a final judgment ” as is contemplatedby the Privy Council Appeals Ordinance and the rules framed thereunder,inasmuch as—that. is his contention—the District Court and this Court,in dealing with this case, were not exercising their ordinary jurisdictionbut a special jurisdiction conferred on them by the Land AcquisitionOrdinance and that, while a right of appeal is given from the judgmentof the District Court to this Court, there is no right of appeal from thejudgment of< this Court. In support of this objection reliance is placedon Soertsz v. Colombo Municipal Council’; R. M. A, R. A. R. R. M. v.The Commissioner of Income Tax8; Kanagasunderam v. Podi Hamine' ;
1 43 N-. L. R. 352. ■’ «»'37 X. L. R. 447'.
*32 N.. L R. 62.* 42 X. L. R. 97.
221
WIJEYEWARDENE J.—Alwis and Fernando.
Vanderpoorten. v. Settlement Officer1; and Muttukrishna v. HulugaXleBut, in view of our ruling on the first objection, it is unnecessary to ruleon this second objection. The respondent is entitled to the costs incurredby him in opposing this application.
Application refused.
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