093-NLR-NLR-V-59-REV.-M.-BUDDHARAKKITA-THERA-Petitioner-and-WIJEWARDENE-et-al.-Respondents.pdf
WEEKASOOKIYA. J.—Buddharakkila Thera c. Wijcicardene
409
957Present :Weerasoorfya, J., and Sansoni, J.
REV. 31. 33UDDHARAKTCTTA THERA, Petitioner, andWIJEWARDEXE et al., Respondents
S. C. 459—Application under liule IS of the Appellate Procedure.(Privy Council) Order, 1921
UrTJEU'ARDEXE et al.. Petitioners, andREV. 3r. BUDDHARAKKITA THERA,Respondent'
S. C. 460—Application under Rule 25 of the Schedule to Appeals(Privy Council) Ordinance
D. C. Colombo, 7,33S(T.
Privy Council—Grant of final leave to appeal—Kcgligence of Proctor in. taking necessarystcp3 thereafter—Application for extension of lime—Dismissal of appeal fornon-prosecution—Appellate Procedure (Privy Council) Order, 1921, Rules 10,IS—Appeals (Privy Council) Ordinance (Cap. So), Schedule, Rule 25.
After the plaintiff in this case had obtained final leave to appeal to tlio Priv-yCouncil from the judgmont of the Supremo Court, the last date, under Rulo 10of the Appellate Procedure (Privy Council) Order, 1921, for serving on thodefendants a list of all tho documents necessary for the due hearing of thoappeal was September 7, 1957, but tho list was not postod to the defendantsuntil September 11, 1957. Tho delay was due to a high degree of negligence ontho part of tho plaintiff's Proctor.'
Held, that “ good cause ” was not made out within the meaning of Rule ISof tho Appollato Procedure (Privy Council) Order, 1921, for an extension oftho time prescribed under Rulo 10. Tho circumstances that tho case was animportant ono and that tho delay causod no projudico to tho defendants didnot constitute "good cause ”.
Held, further, thnt undor Rule 25 of tho rules in t-lie Schedule to tho Appeals(Privy Council) Ordinance tho defendants wore entitled to have tho appealdismissed for non-prosoention.
j^^PPEICATIOXS under Rule IS of the Appellate Procedure (PrivyCouncil) Order, 1921, and under Rule 25 of the Schedule to Appeals(Privy Council) Ordinance.
D. N. Prill, Q.C.. with E. B. Wikramanayake, Q.C., G. T. Samera- -ivickreme and Prins Gunasekera-, for the plaintiff, applicant in Application459 and respondent in Application 460.
H. V. Perera, Q.O., with E. F. N. Gratiaen, Q.O., and IF. D. Gunasekera,for the defendants, respondents in Application 459 and applicants inApplication 460.
Cur. adv. vult.
February 19, 1957. Weerasooriya, J.—_
The plaintiff in this case obtained final leave on the 2Sth August, 1957,to appeal to Her Majesty in Council from the judgment and decree of thisCourt. One of tho steps to be taken thereafter by the plaintiff in termsISlix .-
2J. X. 13 4036—1,503 (6:5.3)
410VEEU ASOORIYA, J .—Buddharahkita Thera v. Wijeica rdene
of Rule 10 of the Appellate Procedure (Privy Council) Order, 1921 (herein-after referred to as “ the Order ”) was to serve on the defendants withinten days a list of all the documents which he considered necessary forthe due hearing of the appeal. Although the last date for taking thisstep was the 7th September, 1957, it is common ground that the list wasnot posted to the defendants until the 11th September, 1957, and receivedby them on the following day under protest.
Arising from the plaintiff’s non-compliance withRule 10 these two appli-cations have been made by the plaintiff and defendants respectively.The plaintiff’s application is under Rule 18 of the Order for an extension ofthe time allowed under Rule 10. The defendants on the other handapply under Rule 25 of the rules in the Schedule to the Appeals (Privy-Council) Ordinance (Cap. 85) for a declaration that the appeal standsdismissed for non-prosecution. Rule 25 provides for such a declarationbeing made where an appellant having obtained final leave to appealfails to show due diligence in taking all necessary steps for the purposeof procuring the despatch of the record to England.
Although the affidavits filed in support of the plaintiff’s application foran extension of time are not clear on the point, Mr. Senaweera his proctorwho gave evidence before us has explained how the delay in furnishingthe defendants with the list specified in Rule 10 was occasioned.According to Mr. Senaweera he fell ill on the 6th September, 1957, and forthat reason he was unable to attend his office at Hulftsdorp from the 7thto the 10th September. On the 7th September the plaintiff met him athis residence and informed him that a list of documents had to befurnished to the other side on that very day and instructed him to takethe necessary steps. Mr. Senaweera does not appear even then to havebecome alive to the provisions of Rule 10, but he states that he typed outa notice to the defendants and signed it and sent it by his servant boyto his clerk at Hulftsdorp with an oral message that it should be des-patched by express post on the same day. He refers to one notice havingbeen typed, signed and sent by him, and how this single document couldpossibly have served as a notice to the three defendants (who lived atthree different addresses) has not been explained. Mr. Senaweera,satisfied, no doubt, that ho had performed his good deed for the day,appears to have rested thereafter. He remained in that state of quiescenceuntil the 11th September when he attended office, and on discoveringthat the notices had not yet gone took action to have them despatchedon that day,' but disingenuously dating them as on the 7th September,'1957. He does not appear to have been sufficiently mindful of his client’sinterests even to the extent of questioning his clerk about the despatch ofthe notice sent to him on the 7th September when the clerk saw him athis residence on the 9th September in connection with some other business.Why the clerk should have failed to carry out his instructions if he didin fact receive the requisite notices on the 7th September has not beenexplained..-■
Enough has been said, I think, to show that Mr. Senaweera was lackingjn candour in the evidence ho gave and oven on that evidence ho has
WKERASOORIYA, J.—BuddharaJckila (Thera v. 'Wijcicardcne
411
displayed a high degree of negligence in regard to the sending ofthe notices. His negligence must, of course, be deemed to be theplaintiff’s negligence..
Under Rule 18 of the Order, the Court may for good cause extend thetime allowed by the Order for doing any act notwithstanding that thetime has expired. If the plaintiff can rely only on the circumstanceswhich resulted in the delay as deposed to by Sir. Senaweera, it would beimpossible to say that good cause has been shown for granting anextension of time. It was held in Samel Appiihamy v. Peter Appuhamy*,which also was a case of a failure to comply with Rule 10, that “ goodcause ” was not made out as the applicant had not shown that through-out he had exercised due diligence in prosecuting his appeal and that thefailure to comply with the rules was occasioned by some circumstancebeyond his control or of liis legal advisers. We wero invited by Mr. Prittwho appeared for the plaintiff to treat this ruling as nothing more thanan expression of opinion amounting to an obiter dictum, but it seemsto me, on the conirar)', that it represents the ratio decidendi of the case.
Even if in an appropriate case it is possible to take into acoount certainextraneous circumstances as constituting a good cause for an extensionof time notwitlistanding that the applicant has been guilty of negligencein not taking within the prescribed time a necessary step towards theprosecution of his appeal, the only circumstances relied on in the presentcase are that it is an important one and that the failure has caused noprejudice to the defendants. While it may be assumed that the case isan important one to the parties, and even if no prejudice is shown to havebeen caused to the defendants by the failure, lam unable to take the viewthat these circumstances, separately or cumulatively, constitute a goodcause.'
Mr. Pritt also contended that the provisions of Rule 10 are directoryand not mandatory, inasmuch as there is nothing in the rule or in anyother rule under the same Order to indicate that non-compliance withRule 10 is fatal to the appellant proceeding further with his appeal. Butapart from no authority having been cited to us for the view that a law- which imposes a time limit for the doing of an act is to be construed asotherwise than mandator)'; it seems to me that Rule 25 of the rules inthe Schedule to The Appeals (Privy Council) Ordinance under which thedefendants have made their application, provides the sanction for thedue compliance by an appellant of Rule 10 of the Order. Rule 25 impliesthat it is for the appellant to show due diligence in taking all necessarysteps for the purpose of procuring the despatch of the record to Englandunder pain of having his appeal dismissed for non-prosecutioii.- Itcannot be doubted, I think, that the steps required to be taken underRule 10 are necessary steps, and it was so conceded by Sir. Pritt. Thevery fact that special provision is made in the Order for an extension oftime being specially obtained for doing an act notwithstanding that the •time specified has expired is, to my mind, a furthor indica tion that Rule;
10 is a mandatory provision.r –
{1051) 52 JST. L. n. 496.
412 Moranluduwe Sri Kaneswara Dhammananda 1'iayaka Thera v.'Baddegama
. -JPiyaratana Kay aka Thera.
I hold, therefore, that no good cause under Rule IS of the Order havingbeen shoma, the extension of time applied for by the plaintiff cannot begranted, and it is refused. But Mr. Pritt contended that even if thatapplication is refused it docs not necessarily'follow that the applicationof the defendants must bo granted. In his submission a declarationunder Rule 25 in the Schedule to The Appeals (Privy Council) Ordinancecan bo made only for non-pi osecution of the appeal, and a single omissionresulting in a short delay ■ cannot have the effect of rendering theplaintiff guilty of non-prosecution of his appeal. I am unable to agree.Where in consequence of our refusal to extend the tune allowed underRule 10 of the Order, the further prosecution of the appeal by the plaintiffis necessarily brought to a standstill I do not see that we can do otherwisethan grant a declaration under Rule 25 that the appeal stands dismissedfor non-prosecution (without express Order of Her Majesty in Council)and I declare accordingly.
The defendants will be entitled to the costs of their application underRule 25 which aro fixed at Rs. 525. They will also be entitled to thecosts (as taxed by the Registrar) already incurred by them in connectionwith the plaintiff’s appeal to Her Majesty in Council. I make no orderas regards costs in the application of the plaintiff under Rule 18.
Sansont, J.—I agree..
Application No. 459 dismissed.Application No. 460 allowed.