026-SLLR-SLLR-1992-V-1-SILINONA-v.-DAYALAL-SILVA-AND-OTHERS.pdf
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Silinona v. Dayalal Silva and Others
195
SILINONAv.
DAYALAL SILVA AND OTHERSCOURT OF APPEALS. N. SILVA, J.
C.A. NO. 17/84; M.C. KALUTARA NO. 4542829 JUNE, 1990
Primary Courts Procedure Act – Dispute regarding a right of way – Scope ofsections 66(3) and 66(8)(b) – Application for postponement to file affidavit – Noorder on the application but case fixed to be called on a later date -Interpretation of time limits in statutes – Mandatory and directory provisions -Scope of maxim “act of court cannot prejudice a party" (actus curiae neminemgravabit).
In proceedings which had commenced under Section 66(1) of the Primary CourtsProcedure Act, No. 44 of 1979, the petitioner’s attorney-at-law moved for furthertime to file the petitioner’s affidavit. The court made no order on this applicationbut made order that the case be called next on another date, on which date thepetitioner tendered her affidavit. Attorney-at-Law for the respondent objected tothis affidavit being accepted on the ground that the petitioner was in default interms of Section 66(3) read with Section 66(8)(b). The learned Magistrate upheldthis objection but the petitioner’s affidavit had been filed of record. In revision itwas argued by counsel for the petitioner that, since no order was made by thelearned Magistrate when the petitioner had moved for further time to file heraffidavit, her application should be considered as having been allowed. It wastherefore argued that there was no default on the part of the petitioner ascontemplated by Section 66(3) read with Section 66(8)(b) of the Primary CourtsProcedure Act.
Held:
The time limit of 3 weeks within which a party is required to file his affidavitunder Section 66(3) is mandatory because statutory time limits within which aparty is required to act are mandatory as distinguished from acts required to bedone by a court, where the provision of time limits should be considered as beingdirectory. Consequently the petitioner was in default in terms of Section 66(8)(b).
In circumstances where a court makes no order on an application made by aparty for a postponement to perform a mandatory statutory act, the maxim that anact of a court cannot prejudice a party (actus curiae neminem gravabit) cannothave application.
Although a party may be in default in terms of Section 66(3) the documentsand affidavits filed of record must be considered before making an order.
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Case referred to:
Ramalingam v. Thiagarajah Sri Kantha’s Law Reports, Vol. 1 32APPLICATION in revision of the order of the Magistrate of Kalutara.
J.P. de Almeida Gunaratne for petitioner.
D. Fernando, PC with S. Peiris for respondents.
Curadvvult.
19th June, 1990.
S.N. SILVA, J.
The petitioner has filed this application in revision against the orderdated 30.11.83 made by the learned Magistrate of Kalutara. Thatorder was made in a proceeding instituted under Section 66(i) of thePrimary Courts Procedure Act No. 44 of 1979. The proceeding wasinstituted by the Officer-in-Charge of Aluthgama Police by filing theinformation dated 24.8.83. That information states that there is adispute between the petitioner and the 1st and 2nd respondents withregard to a right of way.
It appears that the information was filed in court on 10.8.83 and onthat date the petitioner and the 2nd respondent were present in court.On that date, the court directed that notice be fixed on the land andalso directed that affidavits* be filed on 24.8.83. (the fact that the courtmade an order that affidavits be filed on 24.8.83 is borne out by theorder made by court on 30.11.83).
On 24.8.83 the petitioner was not present, but she wasrepresented by an Attorney-at-Law. The 1st and 2nd respondents tothis application were present and their affidavits were tendered toCourt. The Attorney-at-Law for the petitioner moved for further time tofile an affidavit. It appears from the proceedings that no order wasmade by court on this application. The case was to be called next on7,9.83.
On 7.9.83 the petitioner was present and her affidavit wastendered. The Attorney-at-Law for the 1st and 2nd respondentsobjected to this affidavit being accepted and moved that the
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petitioner be considered as being in default. The court by its orderdated 30.11.83 upheld the objection of the 1st and 2nd respondents.The order states that the petitioner is deemed to be in default interms of Section 66(8)(b) of the Primary Courts Procedure Act No. 44of 1979.
Mr. Gunaratne appearing for the petitioner submitted that the courtwas in error when it made the said order. Counsel submitted that thepetitioner made an application on 24.8.83 for further time to file heraffidavit. Since no order was made by court on this application it issubmitted that the application should be considered as having beenallowed. On this basis Counsel submits that there was no default onthe part of the petitioner since affidavit was filed on 7.9.83 being thenext date.
Learned President’s Counsel appearing for the 1st and 2ndrespondents submitted that in terms of Section 66(3) petitioners areobliged to file their affidavit on or before the date fixed by the court,which should be not later than 3 weeks. It was submitted that if thereis default in this respect, the provisions of section 66(8)(b) shouldapply. Counsel further submitted that the petitioner has filed theaffidavit well outside the period of 3 weeks provided for underSection 66(3).
I have carefully considered the submissions of Counsel. Thepetitioner had been granted time till 24.8.83 to file her affidavit. Noorder has been made on 24.8.83 allowing the application of thepetitioner, for further time. In these circumstances, it cannot beinferred that the court permitted the petitioner further time.
I am of the view that there is some merit in the submission that thepetitioner should have been permitted to file the affidavit on any datewithin 3 weeks. Even if this submission is accepted, I note that theaffidavit had in fact been filed outside the period of 3 weeks that isprovided for by Section 66(3).
Counsel for the petitioner relied on the judgment of Sharvananda,C.J. in the case of Ramalingam v. Thiagarajah(,). The particularpassage at page 39 relied upon by the counsel shows that a
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distinction should be drawn between the time periods that arespecified for acts to be done by the parties on the one hand and actsto be done by the court on the other. It is clear from the judgment ofSharvananda, C.J. that where an act has to be done by the court, theprovision of time limits should be considered as being directory. Inthis case, we are concerned with an act that has to be done by aparty.
In the circumstances, the requirement that a party should file theaffidavit on the date specified by court for that purpose, within 3weeks, should be considered as mandatory. Therefore, thejudgment of the Supreme Court does not support the argument of thecounsel.
The other matter relied upon by Counsel is that the act of the courtcannot prejudice the petitioner. This submission is based on the’premise that on 24.8.83 the court allowed the application of thepetitioner. The proceedings clearly show that no order was made onthis application. In these circumstances, I am of the view that there isno act on the part of the court that has prejudiced the petitioner. Thepetitioner failed to file her affidavit within the period of 3 weeksprovided for in Section 66(3). Therefore the default clearly lies on her.
For the reasons stated above, I see no error of law in the orderdated 30.11.83 made by the learned Magistrate.
Counsel for the petitioner submits that although the petitioner isconsidered as having been in default, section 66(8)(b) directs thecourt to consider such material as is before it in respect of the claimsof the petitioner. Counsel submits that an affidavit and a counteraffidavit had been filed by the petitioner before the order dated30.11.83 was made. In these circumstances, it is submitted thatthese 2 documents be considered by the court in making its finalorder. The learned President’s Counsel does not dispute thisinterpretation of section 66(8) of the Act.
In these circumstances, I refuse the application in revision anddirect the court to inquire into the information and to make an orderaccording to law considering the documents and affidavits that have
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now been filed by the parties to the dispute including the petitioner.The petitioner shall not be entitled to participate at this inquiry asprovided for in Section 66(8)(b). The Court may call for furthermaterial as may be considered necessary in the interests of justice.
Application is refused. No costs.
Application refused.