108-NLR-NLR-V-58-NORIS-APPUHAMY-and-another-Appellants-and-UDARIS-APPU-and-others-Responden.pdf
1957Present : Weerasooriya, J., and Sansoni, J.
ISTORTS APPUHAMY and another, Appellants, and UDARIS APPUand others, Respondents
S. G. SS7—D. C. Bala-jntiya, 2,000/L
-■Ippeal—SS'ofice of tendering securitg—Duly of appellant to have it served al the ijroperaddress—Civil Procedure Code., s. 7SG (1) and (-3).
Merely furnishing to Court, on tlio day on which a petition, of appeal is lodged,the notice of tendering security is not sufficient where there has been in facta subsequent failure to servo that notice on-the respondent.
As it is the duty of the appellant or his Proctor to see that the precept to theFiscal is correctly drawn up, no relief can be given to the appellant undersection 7:3G (3) of the Civil Procedure Code in respect of tho service of the noticeof tender of security at a wrong address.
A PPEAL from a judgment of the Supreme Court, Balapitiya.
S. IF. Jayasuriya, with Norman Abeysinghe, for the plaintiffs-appellants.Frederick IF. Obeyesekere, for the defendants-respondents.
April 10, 1957. Weerasooriya, J.—
A preliminary objection to this appeal has been taken by Mr. Obcye-sekero on the ground that no notice of tender of security as required bysection 756 (1) of the Civil Procedure Code was given to some of the res-pondents who, however, did not appear at the hearing and arc not thorespondents whom he represents.
As personal service of the notice on the respondents could not beeffected the Court on the motion of the proctor for one of the appellantsordered substituted service by affixing the notice to the land called Rada-'totagoda which is the subject matter t>f this action. But In the preceptto the Fiscal the land was wrongly described as Wa,tawalagoda and theprocess server’s report shows that the notices were in fact affixed to
that land. For this misdescription tho blame must fall on the appellantsoi’ their proctor a&it ’sv4s their duty to see that the precept was correctlydrawn up. The result is that no notice of tender of security has beengiven to those respondents on whom Substituted service was ordered.
Mr. Obeyesekere submits that tho failure to serve tho notice is fatalto the appeal and that no relief can be given to the appellants in respectof tho failure under section 756 (3).
It is clear that the requirement in section 756 (1) as to tho giving ofnotice to the respondents of the tender of security is a peremptory one.But Sir. Jayasuriya for the appollants relies on the case of Silva v. Seena-thunima 1 in which Soertsz, J., in delivering tho judgment of the Divi-sional Bench, held that this requirement, is satisfied if notice of tenderof security is furnished to Court on the day on which the petition of appealis lodged and Mi-. Jayasuriya states that this has been done in the presentcase.
I do not think, however, that the case cited is authority for the propo-sition that merely furnishing to Court on tho day on which the petitionof appeal is lodged notice of tender of security is sufficient where therelias been in fact a subsequent failure to serve that notice on the respondent.It is clear from the further observations of Soertsz, J., that he was con-templating a case where the notice of tender of security having beenfurnished by the appellant at or about the time when the petition ofappeal had been filed, the same was duly served on the respondent citherwithin the period of 20 day's (which according to Soertsz, J., is the timeallowed under the section for the service of it) or even outside that period.In my opinion, therefore, tho failure to serve the notice on some of therespondents is fatal to tho appeal unless relief can be given to the appel-lants under section 756 (3). Mr. Jayasuriya submitted, however, thatthe failure to serve the notices on the respondents (and therefore a failureto give notice to tire respondent) amounted to an omission on the part ofthe appellants in complying with the provisions of section 756 (1) andsuch omission came within the terms of section 756 (3). But whilethere is much to be said for that submission it would seem that section756 (3) was construed otherwise in the decision referred to above where itwas held that “ where there has been a total failure to comply with oneof tho terms of section 756 relief will not he given even if it should boapparent that no material prejudice has been occasioned to the respondentby such a failure ” (at page 245). That decision is binding on us.
I would also add that even if we considered ourselves free to grant theappellants relief under.section 756 (3) we do not think that this is a suitablecase in which to do so as the failure was occasioned by gross negligenceand nothing has been done by the appellants up to date to rectify' thelapse although their attention was drawn to it before the record wasforwarded to this Court.
Appeal reject eel.
The preliminary' objection is upheld and the appeal is rejected with costs.Sassosi, J-—I agree.
1 (10JO) 41 y. L. li. 241.