THE QUEEN v. W. SURABIEL PERERA et al

011-NLR-NLR-V-61-THE-QUEEN-v.-W.-SURABIEL-PERERA-et-al.pdf


GrTTJ'TASEKA.RA, J.—The Queen v. Surabiel Perera
46-
1957Present: Gunasekara, J.*.
TEES QUEEN v. W.JfcA*Ri HIT, PEBiEBiA et ctl.
Southern Circuit—2nd Criminal Sessions
S. C. 5—M. G. Balapitiya, 17,716Application for Amendment of Indictment
Indictment—Amendment in respect of clerical errors—Permissibility—Can amend-ment be made before trial begins ?—Courts Ordinance {Cap. 6), ss. 4, 28, 43—Criminal Procedure Code, as. 165 P, 172{1), 186.
The accused persons were duly committed for trial before the SouthernCircuit on a charge of murder. The prosecution sought to amend the indictmentby the substitution therein of the words “ Southern Circuit” for “ WesternCircuit”, “ Balapitiya ” for “ Ratn&pura ”, “ Galle ” for “Colombo”, and“Balapitiya ” for “ Balangoda ”. The object of the amendment was to correcta clerical error and the consequential errors.
Meld, that the amendment of an indictment is permissible in respect ofclerical errors if no prejudice is caused to the accused by such amendment.
Meld further, that section 172 (1) of the Criminal Procedure Code does notprevent such amendment before the trial begins.
A PPLICATION for amendment of an indictment.
I. F. B. Wikramanayake, Crown Counsel, in stfpport.
T. W. Bajaratnam, for accused-respondents.
Cur. adv. vult.
October 14, 1957. Gunasekara, J.—
An application made on behalf of the prosecution for amendment ofthe indictment in this case was allowed by me at the close of the argu-ment, and this judgment set3 out the reasons for my order.
The two accused persons have been duly committed for trial beforethis court on a charge of murder. The charge upon which they have beencommitted for trial describes the place of the alleged offence as being-situated, in the judicial division of Balapitiya, and the committingmagistrate is the Magistrate of Balapitiya. That division is, in termsof section 4 of the Courts Ordinance (Cap. 6), comprised within the Sou-thern Circuit, for which the current sessions of this court are being heldbefore me, and the names of the two accused are included in the calendarsubmitted by the Piscal for the Southern Province, under section 28 ofthe Ordinance, as persons committed in this case by the Magistrate ofBalapitiya.
The indictment that has been forwarded to this court, and of whichcopies have been served on the accused, describes itself as follows :
“ Magistrate's Court of Balapitiya Case No. 17.716
GTJ2TASEKARA, J.—The Queen ih Surabiel Perera
47
indictment
In the Supreme Court of the Island
CRIMINAL JURISDICTION
f At a Session of the said Sup-reme Court in its CriminalJ Jurisdiction for the Western| Circuit, to be holden at Colomboin the year One Thousand Nine^hundred and Fifty Seven.”
It proceeds to describe the offence charged as being one committed“ in the division of Balangoda ” and to include in the list of productions
Statements made by accused before Magistrate, Balangoda”. Theamendments sought to be made were the substitution of “ Southern ”for “ Western ”, iC Balapitiya ” for “ Ratnapura ”, “ Galle ” for‘‘ Colombo ”, and " Balapitiya ” for “ Balangoda ”.
The word i£ Balapitiya " in the only place where it appeared in thedocument (in “ Magistrate’s Court of Balapitiya Case No. 17,716 ”) hadbeen typewritten over an erasure. It is obvious that by a clericalerror the word “ Balangoda ” was originally typewritten wherever theword “ Balapitiya ” should have appeared and that the mistake wasdetected and corrected only in one place and not in the other two. Theother mistakes appear to have been the result of this error.
It was contended by Mr. Rajaratnam that either the document inquestion was not an indictment or it was an indictment charging anoffence the trial of which had been transferred by the Attorney-Generalfrom the Southern to the Western Circuit in the exercise of the discretionvested in him by section 43 of the Courts Ordinance : and that thereforethere was no indictment at all or none that could be amended at a sessionheld for the Southern Circuit.
A view that the document is not an indictment cannot helpthe accused ; for they have been duly committed for trial, and if theAttorney-General has not forwarded an indictment to this court it isstill open to him to do so. In my opinion, however, the document isan indictment: it so describes itself and it complies with the requirementsof section 186 of the Criminal Procedure Code as to the form, contentsand signature of an indictment.
The power vested in the Attorney-General by section 43 of the CourtsOrdinance to transfer a trial from one court or place to another can,in terms of that section, be exercised by him only by the issue of a fiat, ’in writing, which must be filed of record with the proceedings in everycase so transferred”. No fiat of transfer relating to this case has beenreceived by the court, and I have been assured by the learned crowncounsel that no such instrument has been executed by the Attorney-General. A fiat is an order, and an indictment is not a fiat, and cannotbe construed as one even if it happens to be signed (as this indictment isnot) by the Attorney-General. The presence in the indictment of words
of Ceylon
Western Circuit :District of RatnapuraSession, 1957
48
GTJNASEKARA, J.—The Queen «. Swdbiel Per era
implying that it is a proceeding in the Supreme Court at a criminalsession to be held at Colombo for the Western Circuit cannot give to thedocument the character of a fiat.
Mr. Rajaratnam sought to find in. section 165 3? ef the CriminalProcedure Code support for his contention that the Attorney-General hadtransferred the trial to Colombo. Sub-section (1) of that section providesthat if the Attorney-General is of opinion that the ease is one -whichshould he tried upon indictment before the Supreme Court or a DistrictCourt, an indictment shall be drawn up and when signed in accordancewith the provisions of section 186 (1) shall be forwarded to the court oftrial selected by the Attorney-General to be filed in that court; andthat the fact that the indictment has been so signed, forwarded, and filedshall he equivalent to a statement that ail conditions required by law toconstitute the offence charged and to give such court jurisdiction have beenfulfilled in the particular case. The argument is that “ the court of trialselected by the Attorney-General ”, as evidenced by the caption of theindictment, is the Supreme Court sitting at Colombo, and by operationof the provisions of seetion 165 F (1) there is in effect a statement madeon behalf of the Attorney-General that all conditions required by lawto give the court jurisdiction to try the case in Colombo have beenfulfilled; and, therefore, that there is a statement made on his behalfthat he has transferred the trial to Colombo.
*
It does not seem to be necessary to examine the validity ofthis argument; for if there is here the equivalent of such a statementit is also apparent that it is the equivalent of a statement that isincorrect. The trial could not have been transferred by the Attorney-General except by a fiat in writing, and there is no such fiat.
A further ground on which the application was opposed was that anindictment cannot he amended before the trial begins. Section 172 (1)of the Criminal Procedure Code provides that “ Any court may alter anyindictment or charge at any time before judgment is pronounced or, in thecase of trials before the Supreme Court or a District Court with assessors,before the verdict of the jury is returned or the opinions of the assessorsare expressed ”. It was contended that the reference to ” trials beforethe Supreme Court or a District Court with assessors ” implies that anindictment can be amended only after the trial has begun. I am unableto accept this contention. The section only prescribes the point of timebefore which an indictment or a charge can be altered.
The object of the amendment asked for by the prosecution was tocorrect the clerical error to which I have referred and the consequentialerrors. That “ Balangoda ” was a clerical error for Balapitiya ”would have been clear to the accused and their advisers as soon as theyread the indictment, and the amendment sought to be made was there-fore one that could cause no prejudice to the accused. The applicationwas therefore allowed.
Application allowed.
Thenuwara v. Thenuwara
49
1959Preseat: Basaayaka, C.J., and Palle, J.
THEN U WAR A, Appellant, and THENUWARA and others, RespondentsS. C. 126—D. C. Colambo, 16,607(T.
Appeal—Several respondents—Security for costs of appeal—Notices of tender ofsecurity—Point of time at which each of them should be lodged—Failure toobserve it—Application for relief—Procedure—Circumstances when relief will begranted—Tender of money as security for costs of appeal—Hypothecation bybond before date of acceptance of security—Regularity—Journal entries—Duty ofJudge to be neat and accurate—Civil Procedure Code, sections 92, 754 (2),756 (7) and (3), 757, 765 (1).
On 4th September 1957 judgment was entered in the District Court. OnSaturday, the 14th September 1957, a petition of appeal and the notices oftender of security were lodged in the office of the District Court and “ accepted ”by the Judge. There were ten respondents to the appeal, including thepetitioner-respondent. The notices of tender of security, save the one meantfor the petitioner-respondent, were defective because they stated that theappellant would tender security on 19th September 1957 by deposit of Rs. 250for the costs of the petitioner-respondent only ; no notices of tender of securityinforming the other respondents that security for their costs of appeal would betendered on. 19th September were lodged in the office of the District Court on14th September.
On Monday, the 16th September 1957, the appellant filed a motion andmoved for the issue on each of the respondents of a fresh notice of tenderingsecurity in Rs. 250 for the costs of the petitioner-respondent and separatesecurity in the sum of Rs. 250 for the costs of the other respondents.
that the second set of notices of tender of security handed on 16thSeptember 1957 were not tendered “ forthwith ” within the meaning of section756 (1) of the Civil Procedure Code inasmuch as they were not given on thesame day as the petition of appeal, viz., 14th September 1957. Accordingly,the appeal should be rejected. In such a case, relief under sub-section 3 ofsection 756 of the Civil Procedure Code cannot be granted.
Where a sum of money is tendered as security for costs of appeal, hypotheca-tion of that sum by bond may take place before the Court makes its orderaccepting the security.
Objection to the failure to give security in the manner prescribed by section756 of the Civil Procedure Code should be raised in the Court of trial. If suchobjection is taken for the first time in the Supreme Court, the respondent willnot be awarded his costs.
Per Bassayajee, C. J.—(i) A petition of appeal is received by the Court forthe purposes of section 756 of the Civil Procedure Code when it is handed to theappropriate officer of the Court at its office and not within a reasonable timeafter the Court decides whether or not it should refuse to receive it in terms ofsection 75a (2) of the Code, (ii) The effect of the word “ forthwith ” in section756 (1) of the Civil Procedure Code is that notice of tendering security, unlesswaived, must be tendered or filed on the day on which the petition of appealis handed to the appropriate officer of the Court, (iii) Sub-section 3 of section756 of the Civil Procedure Code was not designed to give relief in cases in whichthe acts, omissions, or defects for which relief is sought are deliberate or aredue to negligence or could have been avoided with the exercise of such care asProctors are expected to exercise in the performance of their duties. Theapplicant for relief must satisfy the Court that the mistake, omission, or defect,was due to causes not within his control and that it was not due to his or hisProctor’s negligence or want of care and also that the i^nnnHnni has* not been
3—LXI
2J. S'. B. 4717—1,9957(10/59)
50
BASKAYAKK, C.J.—Thenuwara v. Thenuwara
materially prejudiced, (iv) Where application, for relief is made tmder section756 (3) of the Civil Procedure Code, it is essential for the proper determinationof the issues involved that a written petition supported by an affidavit oraffidavits shall be made by the party seeking relief, (v) It is the duty ofJudges of first instance to maintain a neat, legible and accurate journal in eachaction in compliance with the provisions of section 92 of the Civil ProcedureCode.
.^lPPEAXj from a judgment of the District Court, Colombo.
S. V. Perera, Q.G., with E. F. N. Gratiaen, Q.C., and K. N. Ghohay, for1st Respondent-Appellant.
Colvin R. de Silva, with C. G. Weeramantry, Carl JayasingTra, H. Rodrigoand Stanley Perera, for Petitioner-Respondent.
F. J. Martyn, with D.T.P. RajapaJcse, for 5th Respondent-Respondent.
Cur, adv, vult.
June 25, 1959. Basnayake, C.J.—
This is an appeal from the judgment of the District Judge of Colomboallowing an application, under section 537 of the Civil Procedure Code(hereinafter referred to as the Code), for the recall of prohate of the will ofArthur Silva Thenuwara granted to the appellant, his widow. Of theten persons who were named as respondents to that application the firstis the appellant. The applicant (hereinafter referred to as the petitioner-respondent) and the 3rd and 4th respondents are brothers of the testatorwhile the 2nd, 5th and 6th respondents are his sisters. The 7th to 10threspondents, all of whom are majors, are the children of a deceased sisterof the testator. The respondents will be referred to in this judgment inthe order in which their names appear in the petition of appeal. Hiepetitioner-respondent alone was represented by a proctor at the hearingof the application. Besides the petitioner-respondent only the 5threspondent appeared at the hearing of the objections to this appeal.
When the appeal came on for hearing learned counsel for the petitioner-respondent took objection to its being heard on the ground that theappellant had failed to comply with certain imperative requirements ofsection 756 of the Code. Although the notice of tender of security bar!been given in his case in accordance with the section the petitioner-respondent was nevertheless entitled to object on the ground that therehad been a non-observance of section 756. He submitted that theappellants failure to comply with those requirements was fatal to thereception of the appeal by this court.
Shortly the 'material – facts are as follows:—On 4th September1957 judgment was delivered in favour of the petitioner-respondentallowing his application for the recall of probate. At 10.35 in the morningof Saturday 14th September 1857 the appellant's proctor lodged in the*
BASHATAXE, C.J.—Thenuwara v. Thenuwa.ro
51
office of the. District Court a petition of appeal, an application for type-written copies of the record under the Civil Appellate Buies 1938, andother documents referred to in the following motion in writing bearingthe caption of the proceedings :—
“ I move to tender the Petition of Appeal of the 1st Respondent-Appellant abovenamed against the judgment and order of this Courtdated the 4th day of September 1957, together with stamps to thevalue of Bs. 85 and Bs. 85 for the Secretary’s certificate in appeal andthe judgment of the Supreme Court.
I also move for a paving-in-voucher for Bs. 50 being fees for a type-written copy of the brief.
I further move for a notice under section 756 of the Civil ProcedureCode for service on the Petitioner-Bespondent and on each of the2nd—10th Respondents-Respondents and on Mr. R. L. de Silva, Proctorfor the Petitioner-Bespondent, that I shall on behalf of the 1stBespondent-Appellant abovenamed on the 19th day of September 1967at 10.45 o’clock in the forenoon or soon thereafter tender security bydeposit of Bs. 250 for the Petitioner-Bespondent’s costs in appeal andhypothecate the same and will on the said date deposit in Court a sumsufficient to cover the expenses of serving notice of appeal on thePetitioner-Bespondent and on each of the 2nd—10th Respondents-Respondents and on Mr. R. L. de Silva, Proctor for the Petitioner-Respondent.
I also tender notices for service on the Petitioner-Bespondent andon each of the 2nd—10th Respondents-Respondents and on Mr. B. L.de Silva, Proctor for the Petitioner-Respondent.
Colombo, 14th day of September 1957.”
The notice of tender of security referred to in the motion reads asfollows :—
“ Take notice that the Petition of Appeal presented by me in theabovenamed action on the 14th day of September 1957, against thejudgment and decree of the District Court of Colombo dated 4th dayof September 1957 in the said action, having been received by the saidCourt, counsel on my behalf will on the 19th day of September 1957at 10.45 o’clock of the forenoon or so soon thereafter, move to tendersecurity by deposit of a sum of Rupees Two hundred and Fifty(Rs. 250) for the Petitioner Bespondent’s costs in appeal and byhypothecation of the same and will on the said day deposit in Court asum of money sufficient to cover the expenses of serving notice ofappeal on you.”
The minute in the journal of the action made on that day reads—
“ (139) Mr. F. J. P. Perera, Pro., for 1st Bespondent files petition ofappeal against the judgment of this Court dated 4/9/57 together withstamps to the value of Bs. 85 for Secy’s Certificate in appeal andRs. 85 for S. C. Judgment.
BASNAYABZE, C.j.—Thenuwara v. Tkemuwafct
m
He also moves for a 'p.i.v. for Rs. 50 being fees for typewrittencopies.
He farther moves for a notice nnder section 756 of the C. P. C. forservice on the Petnr-Respdt and on each of the 2—10 Respdts and onMr. R. L. de Silva, Pro. for Petnr-Respdt that he will on 19/9/57 at10.45 in the forenoon or soon thereafter tender security by deposit ofUs. 250 for the Petnr-Respdt’s costs in appeal and hypothecate thesame and will on the said date deposit in Court a sum sufficient to coverthe expenses of serving notice of appeal on the Petnr-Respdt and oneach of the 2—10 Respdts and on Mr. R. L. de Silva, Pro. for Petnr-Respdt.
He also tenders notice of security for service on the Petnr-Respdtand on each of the 2—10 Respdts and on Mr. R. L. de Silva, Pro. forPetnr-Respdt : Stamps Rs. 85 affixed to blank forms of certificate inappeal and cancelled.
Accept.
Issue P. I. V. for Rs. 50.
Issue notice of tendering security for 19/9/*
On the Same day the following further minutes were made in thejpumal:—
“ (140) P. I. V. for Rs. 50 issued to P. J. P. Perera.”
“ (141) Proctor for 1st Respdt-Appelt tenders application for type-written copies together with K. R. 0/14 No. 067035 of 14.9.57 forRs. 50.”
“ (142) Notice of security issued Petnr-Respdt 2—6, 8—10 and Pro.for Petnr-Respdt to W. P. and on 7th Respdt to Gampaha.”
It is not clear whether these minutes are signed by the District Judgeor someone else. If they are not signed by the District Judge it isirregular and contrary to the requirements of section 92.
On 16th September 1957 the following farther motion in writingbearing the caption of the application was filed by the appellant’sproetor:—
“ The Petition of Appeal of the 1st Respondent-Appellant againstthe judgment and order of this Court having been filed, I move for anotice under Section 756 of the Civil Procedure Code on the Petitioner-Respondent and on each of the 2nd to 10th Respondents-Respandentsand on Mr. R. L. de Silva, Proctor for the Petitioner-Respondent, thatI shall on behalf of the 1st Respondent-Appellant abovenamed on the19th day of September 1957 at 10.45 o’clock in the forenoon or soonthereafter tender security by deposit of Rs. 250 for the Petitioiier-Respondent’s costs in Appeal and a farther sum of Rs. 250 for the2nd to 10th Respondents-Respondents costs in Appeal and hypothecate
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BASSTAYAKB, C.J.—Thenuwara v. Thenuwara
53
sufficient to cover the expenses of servince (sic) notice of appeal on thePetitioner-Respondent and on each of the 2nd to 10th Respondepts-Respondents and on Mr. R. L. de Silva, Proctor for the Petitioner-Respondent.
** I also tender notices for services on the Petitioner-Respondentand on each of the 2nd to 10th Respondents Respondents and onMr. R. L. de Silva, Proctor for the Petitioner-Respondents.”
The notice of tender of security lodged with the above motion reads—
" To : 1. The Petitioner-Respondent, 2, 3, 4, 5, 6, 8, 9 and 10Respondents aboven&med.
2. Mr. R. L. de Silva
Proctor for Petitioner-RespondentNo. 39 Ferry Street, Hultsdorf, Colombo.
c Take notice that the petition of appeal presented by me in theabovenamed action on the 16th day of September 1957 against thejudgment and decree of the District Court of Colombo dated 4th dayof September 1957 in the said action, having been received by the saidcourt, Counsel on my behalf will on the 19th day of September 195Tat 10.45 o’clock of the forenoon or so soon thereafter, move to tendersecurity by deposit of a sum of Rupees Two hundred and Fifty(Rs. 250) for the Petitioner-Respondent’s costs in appeal and Rupee®Two hundred and Fifty (Rs. 250) for the 2nd to 10th Respondents-Respondents costs in appeal and by hypothecation of the same byBond and will on the said day deposit in Court a sum of moneysufficient to cover the expenses of serving notice of appeal on you
The following minute has been made in the journal in respect of thismotion:—
“ (143) 16.9.57—Pro. for 1st Respdt-Appellant moves for a noticeunder section 756 on the Petnr-Respdt and on each of the 2—10Respdts-Respdts and on Mr. R. L. de Silva, Pro. for Petnr-Respdtthat he shall on behalf of the 1st Respdt-Appellant on the 19/9/57 at10.45 in the forenoon or soon thereafter tender security by deposit ofRs. 250 for the Petnr-Respdt’s costs in appeal and a further sum ofRs. 250 for the 2—10 Respdts-Respdts costs in appeal and hypothecatesame by Bond and will on the said date deposit in court a sum sufficientto cover the expenses of serving notice of appeal on the Petnr-Respdtand on each of the 2—10 Respdts-Respdts and on Mr. R. L. de Silva,Pro. for Petnr-Respdt. He also tenders notice for service on Petnr-Respdt and on each of the 2—10 Respdts and on Mr. R. L. de Silva,.Pro. for Petnr-Respdt.”
The above minute is followed by another which reads: “ Issue Notices-retble 19.9.57.”
By 19th September 1957 the notices lodged on 14th September hadbeen served on the petitioner-respondent and the 2nd, 3rd, 4th, 5th, 8th,9th and 10th respondents, but not on the 6th and 7th respondents.
2*——J, 2T. B, 4717 (10/59)
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BASIN'AY AKE, C.J.—Thenuwara v. Thenuwara
The precepts for service in. respect of those two respondents wereendorsed “ Extended and reissued for service returnable 23rd September1957”. In the case of the 6th respondent a further extension was grantedand substituted service by affixing the notice to the gate and outer doorwas ordered. Although he did so, the learned District Judge had nopower to extend the date on which the appellant stated, in his notice,that he would give security. That is evident from the section and it hasalso been so held by this court (Rahuman v. Mohamed1; SulamaLevai v.Iburai Naina 2). Except in the case of the 7th respondent each of thenotices appears to have been addressed to the Petitioner-respondent and2nd to 6th and 8th to 10th respondents-respondents and Mr. R>. L. deSilva, proctor for the petitioner-respondent.
On 25th September 1957 the District Judge made order acceptingsecurity and ordered the issue of notice of appeal returnable on 17thOctober 1957. By that date notice of appeal had been served on thepetitioner, his proctor, and 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th and 10threspondents and order was made —“ Eorward record to S. C.”
Of the objections taken by the petitioner-respondent the mostimportant is that the notice of tendering security has not been given to the■other respondents in the manner prescribed by section 756. This is aconvenient point at which that section may be examined. It reads—
“ When a petition of appeal has been received by the court of firstinstance under section 754, the petitioner shall forthwith give notice tothe respondent that he will on a day to be specified in such notice, andwithin a period of twenty days, or where such court is a Court ofBequests, fourteen days, from the date when the decree or orderappealed against was pronounced, computed as in the same section isdirected for the periods of ten days and seven days therein respectivelymentioned, tender security as hereinafter directed for the respondent’scosts of appeal, and will deposit a sufficient sum of money to cover theexpenses of serving notice of the appeal on the respondent. And onsuch day the respondent shall be heard to show cause if any againstsuch security being accepted. And in the event of such security beingaccepted and also the deposit made within such period, then thecourt shall immediately issue notice of the appeal together with a copyof the petition of appeal, to be furnished to the court for that purposeby the appellant, to the Fiscal for service on the respondent who isnamed by the appellant in his petition of appeal, or on his proctor ifhe was represented by a proctor in the court of first instance, andshall forward to the Supreme Court the petition of appeal togetherwith all the papers and proceedings of the case relevant to the decreeor order appealed against; retaining, however, an office copy of thedecree or order appealed against, for the purposes of execution ifnecessary. And such proceedings shall be accompanied by a certi-ficate (form No. 128, First Schedule) from the secretary or clerk ofthe court, stating the dates of the institution and decision of the case,in whose favour it was decided, the respective days on which petitionof appeal was filed and security given, and whether either the plaintiffsued or the defendant defended in forma pauperis. …”
(1910) 2 Cur. L. R. 183.
1 (1949) 40 C. L. W. 41.
BASNAYAKE, C. J.—Thenuwara v. Thenuwmra
56
For the purpose of deciding the objection, it is necessary to ascertainthe meaning and content of the -words—
{a) “ when a petition of appeal has been received by the court offirst instance under section 754 ” ,
and
(6) “ the petitioner shall forthwith give notice to the respondent.”
In deciding the question whether the words ** received by the court ”in (a) above mean received by the Judge himself or the appropriateofficer of the court office, it is necessary to ascertain the meaning of theword “court ” in this context. The expression though defined insection 5 is not used throughout the Code in the sense of a Judgeempowered by law to act judicially. The meaning of the expression varieswith the context. In certain contexts it means the Judge exercisingjudicial functions, in others it means idle Judge exercising ministerialfunctions, in still others it means the appropriate ministerial officer ofthe court and not the Judge himself. There are also contexts in whichthe expression is used to mean the court-house, the hall in which theJudge sits when exercising his judicial functions, or the institutionknown as the District Court or Court of Requests of a particular districtor division.
Those functions of the court which involve the making of a decision orthe giving of an order, permission, or leave, or a direction must be per-formed by the Judge himself. These functions I shall for conveniencecall judicial functions. Examples of such functions are found throughoutthe Code and the sections are too numerous to mention here. It issufficient to say that those functions are conferred by words such as“the court may direct”, “the court sees reason to require”, “thecourt is satisfied ”, “the court shall order ”, “ allowed by the court ”,“ imposed by the court ”, “ confirmed by the court ”, and “ the courtthinks fit ”, Whether such function may be performed when the Judgeis not sitting in open court would depend on its nature and on the pro-vision of the Code which prescribes the function. Neither the Codenor the Courts Ordinance expressly authorises the performance of anyof the functions of the court by the Judge when he is not sitting in opencourt. But there are decisions of this court which hold that functionsvested by the Code in “ the court ” need not in every case be performedin open court. (MoMdin v. NaUe Tamby1; KulantaivelpiUai v.Marikar2). But where, as in sections 39, 184, 186 and 373, expressprovision is made by the Code that certain functions should be performedin open court, those functions cannot be validly performed elsewhere.There are other functions vested in the court which do not involve themaking of a decision or the giving of an order, permission, or leave, or adirection. They axe not judicial functions and may for convenience hecalled ministerial functions. The ministerial functions of the court fallinto two categories. Those which the Judge himself must perform,though not in every case, in open court and those which he need not per-form himself. In the latter category are functions which involve manual
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BASNAYAKE, C. 3—Thenwwara v. Thervuwara
acts and which by their nature are not such as need be performed by theJudge himself. They aTe mainly functions connected with receiving andfiling in the proper place documents tendered by parties, or receiving docu-ments forwarded to the court by other courts, the Fiscal and theElaehcheries, and the m airing of entries in registers or returns. As in thecase of the judicial functions, the ministerial functions are found through-out the Code and the sections are too numerous to be specified. Withoutattempting to give an exhaustive list of the various contexts in which theministerial functions of the “ court ” are prescribed it would be sufficientto say that such functions are conferred by words such as “ applicationto court ”, “ file or filed in court ”, “ apply to court ”, “ deposit ordeposited in court”, “ deliver to the court ”, “ pay into court”, “ paidinto court ”, “ paid out of court ”, “ presenting to the court”, “ uponsuch notice being received by the court ”, “ sending to such court ”,“ Fiscal shall certify … to the court”, “notified to the court”, “noticeshall be given to the court ”, “ shall return … to the court ”. Wherethe receiving and filing of documents or the receiving of money orstamps is required by the Code the functions of the “ court” in receivingand filing them may in my opinion properly he performed by theappropriate member of the court staff; but it is the Judge alone that haspower to make any order thereon.
The case of Queen v. Judge of Bloomsbury County Court1 shows thatthe position is not different under the English statutes governing courtprocedure. In that case Denman J. stated “ There are many cases inthe superior courts where an application to the court does not mean aformal application to the Judge or Judges in open court, but to theJudge’s clerk or to a master.”
A discussion of the words of section 756 referred to at (a) abovenecessarily involves a consideration of section 754 as it is expresslymentioned therein. That section requires that the petition of appealshould he “ presented to the court ” of first instance. I would construethe words “ presented to the court ” therein as meaning lodge with theproper officer of the court—not hand over to the Judge in open court.The long-standing practice in the courts is in accord with this construction.
It is common ground that it is not the practice to hand over a petitionof appeal to a Judge sitting in open court. The practice is to hand overa petition of appeal at the office of the court to the officer whose duty itis to receive such petition. Once that is done the petition is submittedto the Judge by the proper officer with the record of the case and aminute for the Judge’s signature.
I now come to the word “ receive ” in the same section. It occurstwice therein—first in the context “ the court to which the petition is sopresented shall receive it ”, and next in the context “ If those conditionsare not fulfilled it shall refuse to receive it”. In the first context inwhich the word “ receive ” occurs it is obligatory on the court to receivethe petition. The receiving contemplated there is the manual act ofaccepting the document. It involves no judicial process. When the
1 {1886) 17 Q. B. D. 788.
BASNAYAKE, C.J.—Thenuwara v. Thenuwara
57
document is landed over at the office of the court by the petitioner orhis proctor in obedience to the requirement that the petition should bepresented to the court within a prescribed period the appropriate officerin the office of the court must receive it and submit it to the Judge. Inthis context “ court ” does not necessarily mean the Judge himself: itincludes the appropriate officer of the court office. The Judge mayhimself receive the petition of appeal if it is handed to him by theappellant or his proctor ; but if it is handed to the appropriate officer ofthe court instead of to the Judge it is nevertheless received by the court.In the second context ** it ” means the Judge himself and no otherbecause the act of refusing to receive the petition is a judicial functionwhich the Judge alone can perform. The Judge has a function toperform, viz., to refuse to receive it if the conditions in the section arenot fulfilled. That function is not the manual act of accepting thepetition from the appellant or his proctor, but, once the petition hasbeen handed in, the mental act of deciding whether the conditions pre-scribed by section 754 have been fulfilled. If they have not beenfulfilled the Judge must refuse to receive it. There is no time limit forthe performance of that function. He can perform it within a reasonabletime after the petition of appeal has been lodged at the office of thecourt. The function may be discharged by making an order rejectingthe petition for the reason that the prescribed conditions have not beenfulfilled. The document itself should not he returned to the partythat lodged it. The effect of the order refusing to receive the petitionis that the appellant may not proceed under section 756.
The present practice seems to be, judging by minute (139) quoted.above, for the Judge to make an order that the petition be accepted; hutthere is no requirement of the Code that such an order should he made.Ho legal consequences attach to such an order. Although learnedcounsel both for the appellant and for the respondent argued the case onthe footing that “ receive ” in the first context meant received by theJudge, I find myself unable to accept that view, even though there issupport for it in the observations of Bertram C. J. in the case of Fernandov. Nikulan Appu 1. With the greatest respect for so eminent and dis-tinguished a Chief Justice of this court I find myself unable to subscribeto those observations which I think are obiter and are no part of the ratiodecidendi of that case. I quote them below—
“ The receipt is the act of the Court, and before receiving the petitionthe Court must verify the fact that the petition is in time. It is notfor the Court to communicate the receipt to the petitioner. It is forthe petitioner to ascertain whether his petition has been received ornot. In this case it is not clear at what precise time the Judge‘ received ’ the petition. He may well have done so at the end of theday on the conclusion of the Court.”
The view of Bertram C.J. does not take into account the words ofsection 754 (2) which make it obligatory on the court to receive thepetition when it is presented regardless of whether the prescribed con-ditions have been fulfilled or not and also make it obligatory to refuse to
* {1920) 22 N. L. B. 1.
58BAS3STAYAKB, C.J.—Thenu.wara v. Thenwumra
receive it if the prescribed conditions are not fulfilled. If “ receive **where it occurs first is construed as receive after verifying -whether theprescribed conditions have been fulfilled, then the court will not becomplying with the requirement embodied in the words “ shall receiveWithout receiving the document into its bands the court cannot per-form the function ofi^ refusing to receive it ”, because it must examinethe document to arrive at its decision. The view of Bertram C.J. also-imposes on the appellant the burden of maintaining a watch in order toascertain when the petition of appeal receives the attention of the Judgein order that he may “ forthwith ” thereupon tender security. It mayalso result in shutting out a petition of appeal tendered on the last dayif, by any chance, the Judge fails at the end of each day's work in courtto stay over to attend to petitions lodged in the course of the day. Theconstruction I seek to place on section 754 (2) enables the court to dis-charge both the obligations of “ receiving ” and of “ refusing to receivethe petition of appeal while no undue burden is imposed upon theappellant or bis proctor.
Now I come to the second question propounded by me—What is themeaning of the word “ forthwith ” in section 756 ? Its ordinary meaning-is “ immediately ”, “ at once ”, “ without delay or interval ”. Insection 756 the notice of tender of security has to be given forthwithupon the petition being received by the court. The words ** under-section 754 ” in section 756 indicate that the word “ received ” in thelatter section bears the same meaning as it bears in the place where it-first occurs in the former. The petition of appeal is therefore received*by the court for the purposes of section 756 when it is handed to theappropriate officer of the court at its office. Learned counsel for the-appellant plaeed great reliance on the meaning given to the expression." forthwith ” in Fernando v. Nikulan Ajypu (supra). Bertram C.J.observes therein—
“ It appears that hitherto the word e forthwith * has not been in.practice strictly construed. I am prepared to take this circmnstance–into account in considering whether in this particular case the delayhas been explained. In all the circumstances I am not prepared todeclare that the delay of one day prevents us from holding that the.notice was given 1 forthwith * within the meaning of the section.
” I think, however, that, as a general rule, it is the intention of thesection that the notice should be filed on the same day as the receipt isverified or can reasonably he verified. It is important that thisprinciple should be observed, all the more so as delays may interposethemselves between the filing of the notice in Court and its actual,delivery by the KseaFs officer.”
Even according to the view of Bertram C.J. a notice not filed on thesame day as that on which the receipt by the Judge is verified or canreasonably be verified is not given “ forthwith ”. I have alreadyexplained above why I am unable to share the view that in order to givethe notice of tender of security it is necessary that the Judge should-make an order “ receiving ” the petition of appeal.
RASNATAKE, C.J.—Thenuwara v. Thenuwara
59
Apart from thi« difference of opinion. I am in respectful'agreement withthe view that “ forthwith ” should be construed in the context as meaningthe same day on "which the petition of appeal is presented to the courtand received by it. I use the words “ received by it ” in the sense whichI have explained above. That is also the meaning given to the expression“ forthwith ” by a Bench of five Judges of this court in the case ofde Silva v. Seenathumma 1. That Bench was specially constituted by theChief Justice in 1940 in view of the “ misapprehension and uncertainly ”as to the meaning of section 756. In that case Soertsz J. who deliveredthe judgment of the court adopted the view of Bertram C.J. in Fernandov. Nikidan Appu (supra) that what was intended by the words “ givenotice forthwith ” in the section was not that the notice should be servedforthwith but that it should be “ tendered or filed ” forthwith. But theJudges do not appear to have accepted the view, expressed for the purposeof that particular case, that notice of security given a day after the dayon which the petition is presented is given “ forthwith ”. They appearto have preferred the general rule expressed by Bertram C.J. “ thatnotice should be filed the same day ” as that on which the petition isreceived, for, Soertsz J. in summing up the conclusions of the court says,“ notice of security, unless waived, must be tendered or filed on the dayon which the petition of appeal is received by the court.” In neitherFernando's case (supra) nor de Silva’s case (supra) did the questions thathave been raised in the instant case arise for decision. This is the firsttime that, so far as reported decisions go, this court has been called uponto determine the meaning of the expressions “ court ” and “ receive ” insections 754 (2) and 756.
Now I shall revert to the facts of the instant case. The petition ofappeal and the notices of tender of security were lodged in the office ofthe District Court on the same day and at the same time ; but the.notices, save the one meant for the petitioner-respondent, were defectivein that they informed the other respondents that security would hetendered for the costs of the petitioner-respondent on 19th September1957. No notice of tender of security informing the other respondentsthat security for their costs of appeal would he tendered on 19thSeptember was lodged in the office of the District Court on 14thSeptember.
The notices lodged in the office of the District Court on 16th Septemberwere in accordance with form 126 of the First Schedule to the Code andinformed each of the respondents that security would be given for thecosts of that respondent, but they contained the erroneous statementthat a petition of appeal was presented on 16th September whereas theprevious notices contained the correct statement that a petition ofappeal was presented on 14th September. Learned counsel for theappellant sought to justify the second notice lodged on 16th Septemberas being the correct notice given forthwith, in the sense of within a.,reasonable time, after the proctor had ascertained the fact that the*Judge had received the petition of appeal.
{1940) 41 N. L. JR. 241.
B-ASN’A'5'AKE, C.J.—Thenwwara v. Thenuwara
It is therefore necessary to decide the following questions that arise **for consideration :—
(a) What was the day on which the petition of appeal was receivedby the court in the instant case ?
(&) Were the notices of security tendered on the same day 1
The petition of appeal bears on its face the seal of the District Court ofColombo with the date “ 14th September 1957 ” in the centre of it. Thewords “ Received at 10.35 a.m. today ” are written over it and initialledby the writer. The minute in the journal of the same date quoted aboveshows that the petition of appeal was handed in at the office of theDistrict Court on 14th September 1957 and submitted on the same dayto a Judge of the court who made the orders referred to therein byinitialling the minute.
It is common ground that the District Court of Colombo does notordinarily sit on a Saturday and that 14th September being a Saturdayno District Judge was sitting in open court on that day. It is alsocommon ground that, on every Saturday, one of the District Judges ispresent in his chambers and attends to such work of the court as may beperformed in chambers. The minutes (140), (141) and (142) indicatethat after minute (139) in the journal was initialled by the Judge inchambers steps were taken to give effect to his orders by issuing apaying-in-voucher for R-s. 50 and also issuing the notices of security tothe Fiscal for service on the respondents. The preeepts to the Fiscal toserve the notices of security on the respondents hear the date 14thSeptember 1957. The minutes (139), (140), (141) and (142) establishthat the petition of appeal was handed in at the office of the DistrictCourt and that the officer whose duty it was to do so submitted it to theJudge in chambers on 14th September 1957 and that he made the orderscontained in minute (139), and that the steps referred to in minute (140),(141) and (142) of the journal were taken thereafter on the same day.
In my view the petition of appeal was received by the “ court ” onI4th September 1957 when it was lodged in the office of the court. Thenotices of security tendered on the same day informed only the petitioner-respondent that security for his costs of appeal would be tendered onthe date specified therein. Certain notices meant for the other res-pondents were in fact delivered ; but they were to the effect that theappellant would tender security for the petitioner-respondents costs ofappeal.
In the case of Sivagurunathan v. Doresamy1 this court held that wherea statute requires that notice should he given to a party to a suit andindicates the form in which that notice should he given, that noticeshould comply with the requirements of the statute and should be in theprescribed form. A notice under section 756 must he addressed to theparty to whom notice has to be given and delivered to that party andinform him that on the date specified therein security for his costs inappeal will be tendered. Section 756 requires that notice of security 1
1 (1552) ii C. h. W. 38.
BAS2TAYAKE, C.J.—Thenuward v. Thenuwara
61
should be given to each* of the respondents named in the petition ofappeal. (Katonis Appu v. Charles and another l/ Sivagurunathan v.Doresamy (supra) ).
The appellant has therefore not given notice of security to respondentsother than the petitioner-respondent as required by section 756. Thesecond set of notices of tender of security handed on 16th Septemberthough properly addressed to the respective respondents were nottendered “ forthwith ” as they were not given on the same day as thepetition of appeal. Now what is the consequence of that failure ?This court has authoritatively decided in de Silva's case (supra) that non-compliance with the section is fatal to the appeal and that it cannot beentertained by this court.
The question that arises next is whether relief under sub-section (3) ofsection 756 can be granted. That sub-section reads—
“ In the case of any mistake, omission, or defect on the part of anyappellant in complying with the provisions of this section, the SupremeCourt, if it should be of opinion that the respondent has not beenmaterially prejudiced, may grant relief on such terms as it may deemjust.”
Before considering the meaning of the words used in the above pro-vision I sba.11 discuss its ambit. At the time of the introduction in 1921,by amending Ordinance No. 42 of 1921, of the provision now appearingas sub-section (3), which was so numbered at the revision of the legislativeenactments in 1938, there was and there still is a provision of the Code(s. 765) which empowers this court to admit and entertain a petition ofappeal from the decree of any original court, although “ the provisionsof sections 754 and 756 have not been observed.” In introducing theprovision for relief in subsection (3) the legislature clearly did not intendto make provision for the very matters for which provision alreadyexisted in section 765 (1). Therefore in determining the scope of sub-section (3) there must be excluded from it those matters which fallwithin the ambit of section 765 (1). As that provision enables theSupreme Court to admit and entertain a petition, in a case where theprovisions of section 754 or 756 or both have not been observed, theremust be excluded from the scope of subsection (3) all cases of non-observance of or non-compliance with the provisions of section 756.Apart from the above considerations the very words “ any mistake,omission, or defect on the part of any appellant in complying with theprovisions of this section ” seem to exclude from its ambit cases of non-compliance of the provisions of the section.
The view that cases of non-compliance with the provisions of section756 do not fall within the ambit of subsection (3) is of long standing.In the case of Silva v. Goonesekere 2, Tisher C. J. observed—
“ I do not think that this additional paragraph can be held to applyto cases where there has been a substantial non-compliance with theprovisions of the section. In my opinion it applies to more or less
1 / 7O20 tOT TTT 1GQ
yxi/wj ■*. v/• -*-» • rr •
2 (1930) 31 N. L. B. 184.
02
BASNAYAKE, C.J.—Thenuwara v. Thenuwara
trivial omissions wh.ere.it may be said that although the strict letterof the law has not been complied with the party seeking relief-has been,reasonably prompt and exact in taking the necessary steps.”
In the same case Drieberg J. who took the same view quoted the statementof objects and reasons of Ordinance No. 42 of 1921 which are as follows :—■
“ It has been found lately that a number of appeals have had to bedismissed owing to failure of strict compliance with the provisions ofsection 756 of the Civil Procedure Code. This non-compliance has incertain cases been in respect of matters not of material importance;and it is thought well to give the Supreme Court power to waive suchfailures to comply in cases where the respondent is not materiallyaffected by such waiver.”
In Zahira Umma v. Abeyainghe et al.1 a Bench of three Judgesaffirmed the view previously expressed that the provision for relief didnot extend to cases of non-compliance with the requirements of section756. Abrahams C.J. who delivered the judgment of the court states—
" I think, however, that if we gave relief in this case we should becompletely ignoring that provision of section 756 which says thatnotice of security must he given and the fact that no material prej udicehas resulted, and I see no reason why in the circumstances we shouldinquire as to whether it has resulted, cannot he regarded as an excusefor non-compliance with an essential term of section 756. Thepetitioner says that she did everything she could, but she has notgiven any excuse for not doing what she should.
" It seems to me that there are two forms of a breach of section 756in respect of which this Court ought not to give relief. One is when,whether a material prejudice has been caused or not, non-compliancewith one of the terms of section 756 has been made without an excuse,and the other is when though non-compliance with an essential termmay he trivial, a material prejudice has been occasioned.”
This decision has since been followed in Siyadoris Appu v. Abeyenayake2and in Suppramaniam, Ghettiar v. Senanayake and others3, where deKretser J. refused to grant relief in a case in which no notice of tenderingof security and no security had been given to two of the respondentsnamed in the petition of appeal. He refused to do so on the groundthat the provision applies only to formal defects and not to a non-compliance with the requirements of section 756. This was the viewtaken by Abrahams C.J. earlier in Katonis Appu v. Charles and another{supra) wherein he stated—
“ In this connection, I would refer to Saleem v. Yoosoof et al. (17Ceylon Law Recorder 117) and, as this has been complete non-compliance with the provisions of the law, I do not see how it can heexcused.”
(1937) 39 N. L. R. 84.
(1938) 13 C. L. W. 22 ; 18 Law Recorder 120.
(1939) 16 G. L. W. 41.
~R A STKTAVa khI, C.J.—Thenwvara v. Thenutoara
63-
finally it was confirmed by the authoritative decision of a Bench offive Judges in de Silva v. Seenalhumma (swpra) where it was held thatrelief under subsection (3) cannot be given in a case in which no notice oftender of security has been given as required by the section. In thatcase Soertsz J. who delivered the judgment of the court elaborated theview expressed earlier by Abrahams C.J. in Zahira TJmma v. Abeysinghe(supra) where it was held that relief under subsection (3 ) cannot be givenin a case in which no notice of tender of security has been given as requiredby the section, thus—
“ The first part of that statement is intended to lay down thatwhere there has been a total failure to comply with one of the terms ofsection 756, relief will not be given even if it should be apparent thatno material prejudice has been occasioned to the respondent by such afailure, for peremptory requirements of the law must be given fulleffect. ”
Having determined its ambit by exclusion of cases of non-complianceI shall now proceed to examine the meaning of the subsection. It ispermissible to consult the dictionary when ascertaining the meaning of aword in a statute. Now according to the dictionary (S. O. E. D.) theexpressions “ mistake ”, “ omission ”, and “ defect ” have the followingmeanings :—
“ Mistake ” means a misconception of the meaning of something, anerror or fault in thought or action.
<c Omission ” is the act of omitting or fact of being omitted, and“ omit ” means to leave out, not to insert or include.
“ Defect ” means the fact of falling short, lack or absence of somethingnecessary to completeness, a fault, flaw or imperfection.
“ Mistake ” is also discussed in Sweet’s Law Dictionary thus:“ Although c mistake ’ and ‘ ignorance ’ are strictly speaking not identical,the one being positive and the other negative, they are commonly used asconvertible terms in law, their effects being identical. “ Mistake ” maythen be defined as a misapprehension as to the existence of a thing,arising either from ignorance in the strict sense, that is, absence ofknowledge on the subject, or from mistake in the strict sense, that is, afalse belief on the point.”
It would appear from the history of the legislation as set out in thedecisions I have examined above and the setting in which the subsectionoccurs that it was not designed to give relief in cases in Which the acts,omissions, or defects for which relief is sought are deliberate or are due tonegligence or could have been avoided with the exercise of such care asproctors are expected to exercise in the performance of their duties.
The subsection vests in this court a discretionary power to be exercisedin cases which fall within its ambit. The existence of a mistake,omission or defect of the kind contemplated in it will by itself not be aground for the grant of relief. It is not to be given for the mere asking.It would not be advisable to attempt to compile an exhaustive list ofcases that fall within the ambit of subsection (3). In our reports there
BASNAYAKTE, C. J.—Themtwara v. Themiwara
64
■are instances in which, relief has been given. The considerations thatshould govern the grant of relief would depend on the circumstances ofeach case. The burden on an applicant for relief under the subsectionis not less than that imposed on an applicant for leave under section 765.-An applicant for relief must, as in the case of an application undersection 765, satisfy the court that the mistake, omission, or defect, wasdue to causes not within his control and that it was not due to his or hisproctor’s negligence or want of care and also that the respondent has not"been materially prejudiced (JRahuman v. Mohamed1; Noris Appuhamy v.TJdaris Appu 2 3). The adoption of any other standard would place apremium on laxity and encourage appellants and their proctors notto devote sufficient attention or attach sufficient importance to theprocedure governing appeals.
Now reverting to the instant ease it would appear that the appellant’sdifficulties in this case are entirely due to her proctor’s negligence in notexamining with care the notices of tender of security lodged with thepetition of appeal on 14th September. This court has in a number ofcases held that the negligence or mistake of the proctor of a party is nota ground on which relief can be claimed.
In the case of Rankira v. Silindu et al. 3 which was an application forleave to appeal notwithstanding lapse of time Middleton J. observed—
“ In this case I am asked to admit a petition of appeal notwith-standing lapse of time, and it is clear that the petition is out of timesolely and entirely by the laches of the proctor engaged by theapplicant, and I take it when a proctor is retained in an action hebecomes the recognized and accredited full agent of the party in theaction, and any act of his in the proceedings must he looked upon asan act of the party himself. He is also fortified by the peculiartechnical knowledge that his office is clothed with, and if he makes anerror, it is to all intents and purposes the error of his client which thatclient must be responsible for.”
The same principle has been laid down in Silva v. Gooneselcera 4 and in anunreported case in S. C. Min. Aug. 23, 1907—D. G. Galle 8398, both ofwhich are referred to by Middleton J. In the case of Julius v. Hodgson 5this court refused to grant relief in a case where an appeal petition wasnot presented in time owing to the default of the proctor of the partyseeking to appeal. This case was followed in Mendis v. Mendis andothers 8 where relief was refused against the mistake of the proctor of theparty in computing the appealable period. In the case of Nagendran v.Algina Peiris 7 relief under subsection (3) was refused as the default wasdue to the proctor’s incompetence or negligence.
The conclusion I have reached on the main objection makes itunnecessary for me to deal with the other points. But I wish to refer toone of those points as a question of practice is involved. Objection wastaken to the execution of the bond hypothecating the money in deposit
1 (1949) 40 G. L. W. 41.*{1907) 1 A. G. B. 100.
(1957) 58 N. L. B. 441.*(1908) 11 N. L. B. 25.
3 (1907) 10 N. L. B. 376.8(1916) 2 C. W. B. 155.
7 (1953) 49 G. L. W- 26.
BASNAYAKE, C.J".—Thenuwara v. Thenuwara
55
before the date on which the security was*, accepted. The appellantoffered security by the deposit of Rs. 250 and hypothecation of that sumby bond. Before the court can accept the security the perfected bondmust be submitted to it. Section 757 also indicates it. My view findssupport in the cases of Kandappan v. Elliot1 and Mendis v. Jinadassa 2wherein De Saznpayo J. says—
“ When the rest of the section is read with the expression ' accepted ’,it appears clear that ‘ acceptance ’ really implies * completion ’ of thesecurity within the time limit, namely, twenty days. It cannot becompleted unless the bond provided for infection 756 is executed/’
The objection based on the ground that the hypothecary bond wasexecuted before the acceptance of the security by the court is thereforenot sound.
Learned counsel for the appellant submitted that it was highly un-desirable that parties should raise objections of this nature in this courtover a year after the. petition of appeal was presented. He submittedthat objection to the failure to give security in the manner required bysection 756 should be raised in the court of trial, which is empowered todecide the matter and hold that the appeal has abated in a case wherethe petitioner has failed to give security and to make the deposit asprovided in the section. I am inclined to agree with learned counselthat any objection that can be taken before the trial Judge should betaken before him, before the petition of appeal is forwarded to thiscourt, and that respondents should not wait till the hearing of the appealto do so. Where an objection is successfully taken in the lower courtthe record with typewritten copies of the briefs will not be forwarded tothis court, nor will it be necessary for the appellant to go to the expenseof retaining counsel to argue the appeal. We shall therefore in futurenot only not allow costs to a respondent who has failed to take anobjection which he may properly have taken before the trial Judge andwhich he successfully takes here in appeal, but also order him to pay theappellant the costs he Would have been saved if the objection had beentaken timeously. I am fortified in the view I have expressed above bythe judgment of Bertram C.J. in Kangamy v. Ramasamy Rajah 3—
“ I think it is desirable if it is in the power of the party to raise thepoint in the District Court, that he should do so there, and that, if heprefers to wait until the case comes to the Supreme Court before takingthe point, he should then run the risk of losing his costs.”
There is one other matter to which I should like to refer and that is theform in which applications for relief under section 756 (3) should be made.There is no uniform practice. In some cases, as in the instant case, theappellant’s counsel makes the application orally, in the course of hisargument of an objection taken to the hearing of the appeal, and invitesthe court to grant relief in the event of the respondent’s objection beingupheld. This court is at a disadvantage in dealing -with such an oralapplication. The decision of an application under section 756 (3) involves
1 (1892) 1S. C. B. 37; 2G.L.B.17.* (1922) 2d N. L. R. 188.
3 (1918) 21 N. L. B. 106.
•66
BASNAYAKE, C.J.—Thenuwara v. Thenuwara
the decision, of questions of fact. The material necessary fox the de-cision of such questions should he placed before the court in an affidavitor affidavits which should he attached to the petition. If the respondentdoes not admit the appellant’s version of the facts he should be affordedan opportunity of filing a counter affidavit or affidavits. This courtcannot decide such a question of fact as whether “ the respondent has notbeen materially prejudiced ” without the necessary material before it.It is therefore in the interests of all parties, and essential for the properdetermination of the issues involved in an application for relief undersubsection (3), that a written petition supported by an affidavit oraffidavits shall be made by a party seeking relief. The burden is on theparty seeking relief to establish that his case falls within the ambit ofsubsection (3) and to place before the court all the facts on which herelies for the grant of relief. That this is the proper procedure to befollowed in obtaining relief is also indicated in the cases of Zahira XJmmav. Abeysinghe {supra) and Rahuman v. Mohamed {supra). In the instantcase the appellant tendered an affidavit from her proctor which we didnot entertain, as it was for the purpose of showing that the action hetook was correct and according to law, and not for the purpose of theapplication for relief.
Learned counsel for the appellant strenuously maintained that therehad been no mistake, omission, or defect, on her part, and at the sametime asked for relief. It seems to me that the basis of an applicationunder subsection (3) is the existence of an admitted mistake, omission ordefect. The applicant should in seeking relief admit the fact that amistake had been made or that there had been an omission or that adefect exists and state what it is and ask for relief against such mistake,omission or defect.
Whether a mistake or omission has been made by the appellant is amatter within his knowledge. If he does not admit by way of affidavitthat he has made a mistake or that an omission has occurred then therewould be no material before the court that his act or omission is notdeliberate. The court does not lend its aid even under subsection (3) tothose who deliberately flout the requirements of the law. The sameprinciple would govern the grant of relief against a defect.
The appeal is rejected. We make no order for costs as the mainobjection is one that the respondent was free to take in the court below.
Before I part with this judgment I must not omit to refer to theunsatisfactory manner in which the journal of this action has beenmaintained. Going by the records that have come up before me inappeal I cannot escape the conclusion that Judges of first instance do notseem to realise that it is their duty to maintain a neat, legible andaccurate journal in each action. They should supervise and control therecording of minutes in the journal and not leave it entirely to theirclerks. Section 92 of the Civil Procedure Code declares that the journalshall be the principal record of the action, and that section requires thatthe Judge shall sign and date each minute. The signatures to theminutes in this case are illegible and the minutes are not dated. Judgesshould not disregard express provisions of the Code. On the contrary
PULLE, J.—Thenuwara v. Thenuwara
67
■fchey should take pains to observe them. They should "write theirsignatures legibly so that it will appear that the minutes have beensigned by the Judges themselves.
In the instant case especially in regard to the entries material to thisappeal, the minutes have been so carelessly, illegibly, and untidily writtenwith erasures, cancellations and corrections that the journal does nocredit to the premier District Court of this country. The irregularitiesare so many that learned counsel for the petitioner-respondent suggestedthat some person interested in the appellant had been at work. I amunable to say that the suggestion is entirely unfounded especially as theportion of the all important minute (139) where the date should haveappeared under the Judge’s signature is not there.
I hope that Judges of first instance will take to heart these remarks ofmine and give the journal of an action or proceeding the attention thatit deserves as the principal record of the action.
PtrrxE, J.—
Before the hearing of the appeal in this case the petitioner-respondentgave to the Proctor for the 1st respondent, who is the appellant, a writtennotice dated 22ndNovember, 1958, in which were formulated the groundson which it was proposed to take objection to the validity of the appeal.The petition of appeal bearing the date 14th September, 1957, was placedin the record on the same day and submitted to an additional DistrictJudge in Chambers and the order made thereon, also on the same date,is that it be " accepted The argument proceeded on the basis thatthe “ receiving ” of a petition of appeal for the purpose of section 754 (2)is a judicial act and that in the present case that act was performed whenthe Judge signed the journal entry No. 139. Section 756 (1) of the CivilProcedure Code provides, inter alia,
“ When a petition of appeal has been received by the court of thefirst instance under section 754, the petitioner shall forthwith give noticeto the respondent that he will on a day to be specified in such notice, andwithin a period of twenty days . . . from the date when the decree ororder appealed against was pronounced . . . tender security as hereinafterdirected for the respondent’s costs of appeal, and will deposit a sufficientsum of money to cover the expenses of serving notice of appeal on therespondent.”
Along with the petition of appeal the Proctor for the appellant ten-dered for service, through the Fiscal, on the petitioner-respondent andhis Proctor and on the other respondents to the appeal notices informingthem of the tender of security. On the same day on which the petitionof appeal was accepted by the Judge, namely, the 14th September, 1957,these notices were placed in the hands of the Fiscal who took the usualsteps to have them served. Except the notices intended for thepetitioner-respondent and his Proctor the rest were admittedly bad,because the notice intended for the others stated that the appellantwould tender security not for their costs of appeal but for the costs ofthe petitioner-respondent.
68
PU-LUS, J.—Thenuwara v. Thenwwara
On Monday, the 16th September, 1957, the appellant filed a motionand moved for fresh notices tendering security in Rs. 250 for the costs ofthe petitioner-respondent and separate security in the sum of Rs. 250 forthe costs of the other respondents. The submission on behalf of thepetitioner-respondent and the 5th respondent is that the appellant didnot comply •with the imperative provision in section 756 (1) in that hefailed “ forthwith ” to give the specified notices when the petition ofappeal had been received by the Judge on the 14th September and that,therefore, the appeal should be rejected. This submission was basedlargely on the decision given by a bench of five Judges in De Silva v.Seenathumma et al.1. The ruling of this bench was that “ notice ofsecurity, unless waived, must be given forthwith, that is to say, must betendered or filed on the day on which the petition of appeal is received bythe Court.”
The second submission that the appeal should be rejected is based onthat part of section 756 which provides for giving notice of appeal afterthe security tendered by the appellant has been accepted. It reads asfollows :
“ And in the event of such security being accepted . . . then the courtshall immediately issue notice of appeal together with a copy of thepetition of appeal, to be furnished to the court for that purpose by theappellant, to the Fiscal for service on the respondent who is named bythe appellant in his petition of appeal, or on his Proctor if he was repre-sented by a proctor in the court of the first instance, and shall forwardto the Supreme Court the petition of appeal together with all the papersand proceedings of the case relevant to the decree or the order appealedagainst.”
It is alleged that the appellant tendered for service along with thenotices of appeal two copies less of the petition of appeal than wereneeded for service on the petitioner-respondent and his Proctor and onthe other respondents, with the result that all the respondents could nothave been served with copies of the petition of appeal.
Thirdly, there was a group of objections associated with the actualtender and acceptance of security for the costs in appeal of all the partiesopposed to the appellant. The notices handed to court on the 14th and16th September for service specified 19th September as the day on whichthe appellant would tender security for costs. It was not done on thatday because all the notices—there were two sets of them—could not beserved before that day. It may here be mentioned that the 2nd to 10threspondents to the petition filed by the petitioner-respondent contestingthe will did not at any time in the court below enter an appearance and,therefore, difficulties with which one is familiar were bound to arise inattempting to serve processes on parties at addresses not given by theappellant hut by the petitioner-respondent- It so happened in this casethat two of the respondents were not found at the places to which thenotices were directed, so that when the notices were ultimately servedthe date for tendering security, namely, 19th September—which could•not be altered—had already passed. In regard to the tendering of
1 {194:0) 41 N. L. It. 241.
PULLE, J.—Thenuwara v. Thenuwara
security it was contended that as the bond hypothecating the two sumsof Rs. 250 had been executed on the 23rd September and the court“ accepted ” the security on the 25th September there had been a failureto “ tender ” security prior to its acceptance by court. Assuming thatthe notices of tender of security had been given “ forthwith ” in terms ofsection 756 it could not be argued, having regard to the events whichoccurred after the notices were handed in for service, that the appeal hadnecessarily to be rejected. Provision is made in sub-section 3 of section756 that
" In the case of any mistake, omission, jot defect on the part of anyappellant in complying with the provisions of this section, the SupremeCourt, if it should be of opinion that the respondent has not beenmaterially prejudiced, may grant relief on such terms as it may deem fit. *’
It was not necessary for the appellant to invoke the relief provided bythis sub-section because in my opinion the bond which had been dulyexecuted on 23rd September could become valid security in the sensethat the obligor would become liable at the time the court accepted itand incorporated it in the record. I do not see any merit in the argumentthat there was a failure to comply with section 756 (1) solely on theground that the execution of the bond had taken place before the courtmade its order accepting the security already embodied in a bond whichhad been executed. The requirement is that on the due date theappellant has to tender security and not make an offer to tender it orotherwise express a willingness to execnte later an instrument securingthe costs in appeal of the opposite parties.
There remain for consideration the first two objections which, ifupheld, would according to the decision in De Silva v. Seenathumma et al. 1be fatal to the appeal. Of these objections the second raises questions ofa factual character and I shall deal with it at once.
The petitioner-respondent who in the District Court petitioned againstthe appellant taking any benefits under the will named ten respondentsof whom the first named is the appellant. The latter was apparentlyadvised to give notice of appeal to both the petitioner-respondent andhis Proctor, so that eleven notices of appeal, with a copy of the petitionof appeal attached to each, had to be furnished to court. Eleven noticesof appeal were sent for service under the authority of three Preceptsaddressed to the Fiscal. There was one Precept relating to service onthe 5th respondent who was then residing in Nuwara Eliya District.The third Precept at page 708 of the record related to the service ofnotices on the petitioner-respondent and his Proctor and on the 2nd,3rd, 4th, 6th, 8th, 9th and 10th respondents. This Precept refers tonine notices of appeal but only to seven copies of the petition of appealfrom which it is sought to be inferred that nine notices of appeal withonly seven copies of the petition of appeal had been furnished to courtand that, therefore, there was a breach of section 756 (1). I am notprepared to reject the appeal on this ground for the following reasons :
{a) It is unlikely that, if the Fiscal was asked to serve nine noticeswith seven copies of the petition of appeal, he would havei fi9dn ir w t.94-t St's.
70
•PTfiyiTBi, J.—ThenuwaraThenuwara
refrained from calling the attention, of the court to the fact thattwo copies were short. There appears to he no query by theFiscal.
(6) There is not even an affidavit from any one of the nine persons,notices on whom were covered by the third Precept, statingthat when the notice of appeal was served there was notattached to it a copy of the petition of appeal.
Over a year elapsed between the service of notices and the formula-tion of objections and it is now too late to enter on an investiga-tion to ascertain whether two of the respondents were servedwith notices unaccompanied by copies of the petition of appeal.
(<£) An error in stating the number of copies of the petition of appealwhich accompanied the third Precept cannot reasonably beruled out.
I come now to the most important of the objections, namely, the first.As stated earlier the notices regarding tender of security which werefiled on 14th September, save the two notices relating to the tender ofsecurity for the costs of the petitioner-respondent, were admittedly bad.It was submitted to us on behalf of the petitioner-respondent that theappellant’s right to have his appeal heard was conditioned on his con-forming strictly to the requirement in section 756 (1) that upon thepetition of appeal having been received by court the petitioner shallCi forthwith ” give notice to the respondents of the tender of securitywithin twenty days reckoned from the date of the order appealed from.It is said that the appellant did “ forthwith ” give notice but that noticewas bad and no question could arise of giving another notice “ forthwith ”on 16th September. A large part of the argument involved the examina-tion of both the original and the typed copy of the journal entries whichindicated that on the 14th September itself the appellant’s Proctor hadobtained a paying in voucher (referred to in the entries as P. I. V.) todeposit Ps. 40 to cover the expenses of serving notices of appeal on therespondents. This sum was deposited at the Kachcheri and the receipttendered to court on the same day. From this circumstance it wassought to be argued that the appellant’s Proctor must have known on14th September that the District Judge had made order receiving thepetition of appeal. It was also argued that the Proctor sought to con-ceal the mistake he had made in drawing up irregular notices of tender ofsecurity filed on the 14th September by representing in the notices filedon the 16th September for service that the petition of appeal was pre-sented to court on the latter date. Our attention was also drawn tocertain alterations in the journal entries relating to the P. I. "V. which,according to learned counsel for the petitioner-respondent, reinforced hiscontention that the Proctor for. the appellant knew on the 14th itself ofthe order made by court. It is.not possible, judging by the alterationsin the journal entries, for me to say with any degree of confidence thatthe circumstances point unmistakably to the Proctor’s knowledge on the14th itself of the order made on that day. I am, therefore, content todeal with the case on facts which are beyond dispute. It cannot becontested that when the appellant’s Proctor tendered at the office of the
PULL.E, J.—Thenuwara v. Thenuwara
71
District Court the set of papers minuted in the journal against entryNo. 139 he foresaw the possibility of the Judge on that day itselfreceiving the petition of appeal and making the ancillary order toissue the notices tendering security. The notices were left with the courtwith no other object than that of complying with section 756 (1) of givingthem " forthwith ” upon the Court accepting the petition of appeal.
It was submitted to us on the authority of Fernando et al. v. NikulanAppu et al.1 that the tendering of fresh notices of security on the 16thSeptember was a compliance with the requirement to do “ forthwith ”the act of giving notice. The argument, was that the set of noticeshanded in on the 14th September did not have any legal validity andcould be ignored and that, in the absence of evidence that the appellant’sProctor had verified on the 14th itself that the Judge had made order“ accepting ” the petition of appeal, he had given the necessary notices“ forthwith ”. In Fernanda’s case the petition of appeal was tenderedon 5th February, 1920, and the notice was filed on 7th February, 1920.Bertram, C.J., said,
“ It is not for the court to communicate the receipt to the petitioner.It is for the petitioner to ascertain whether his petition has beenreceived or not. In this case it is not clear at what precise time theJudge received the petition. He may well have done so at the end ofthe day on the conclusion of the Court. On this supposition thepetitioner could have ascertained the fact of the receipt the next dayand could on the same day have filed his notice …”
He went on to add,
" I think, however, that, as a general rule, it is the intention of thesection that the notice should be filed on the same day as the receipt isverified or can reasonably be verified. It is important that thisprinciple should be observed, all the more so as delays may interposethemselves between the filing of the notice in Court and its actualdelivery by the Fiscal’s officer;”
In the present case what the appellant thought were correct noticeswere filed along with the petition of appeal but we were asked to ignorethem on the ground of their invalidity and look to the notice filed on16th September as being the first and proper act of giving noticetc forthwith ”. It is at this point that I am unable to find an adequateanswer to the contention of learned counsel for the petitioner-respondent.The practice is long standing that the Proctor for an appellant hands tothe Secretary or other official of the court the petition of appeal and thenecessary notices for service through the Fiscal. If the appeal is intime the Judge signs the minute in the journal which also contains wordsto the effect, “ Accept petition of appeal, issue paying in voucher andnotices tendering security”. Had the notices of the 14th September notbeen defective it could not possibly be argued that there was a failure tocomply with section 756 (1) because they had been tendered before theact of £C receiving ” by the court. It may here be repeated that two of 1
1 (1920) 22 N. L. R. 7,
T2
PXJLLB, J.—Thenv-wara v. TTienuwara
the notices, namely, the one intended to he served on the petitioner-respondent and the other on his Froetor, were quite in order. Counselfor the petitioner-respondent put his argument in this form that therecannot he acts done “ forthwith ” twice, once on the 14th onceagain on the 16th. The contention is that the appellant had “ forthwith”tendered notices of security on the 14th but it turned out that all buttwo were hot the notices required to he given by the section. Assumingthat in De Silva v. Seenathumma et al.1 the Bench of five Judges approvedthe ruling in Fernando v. Nikulan Appu 3, the latter case is distinguish-able on the facts. I have, therefore, with considerable reluctance cometo the conclusion that the first objection must he upheld.
Before I conclude I wish to make some observations. Within threeweeks of the date of the judgment under appeal the appellant had givenadequate security for the costs of appeal of the petitioner-respondent andthe other respondents. It could hardly he urged that by reason of theappellant tendering on the 16th and not on the 14th a set of correctnotices the respondents have been materially prejudiced. Havingregard to the wide terms in which sub-section 3 of section 756 is expressedI would be inclined to grant relief to the appellant but I am precludedfrom doing so by the decision in De Silva’s case which has laid down thatthe failure to tender notice of security contemporaneously with thereceipt of the petition of appeal by the Judge is fatal to the appeal andnot curable by sub-section 3. De Silva’s case was decided in 1940 andit has since been consistently followed, even though a decision on all thepoints enumerated at p. 249 of 41 1ST. L. R. was not necessary for thedisposal of the preliminary objection raised in that case.
I agree to the order proposed by my liord, the Chief Justice.
Appeal rejected.
1 (1940) 41 N. L. B- 241.
* (1920) 22 If. L. B. 1.