009-NLR-NLR-V-22-VICTORIA-v.-THE-ATTORNEY-GENERAL.pdf
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[Full Bench.]
Present: Bertram C.J., De Sampayo J., and Schneider A.J.
VICTORIA v. THE ATTORNEY-GENERAL.
100—D. G. Kurmegala, 1,807.
Stamp duty—Ordinance No. 22 of 1909—Ordinance No. 32 of 1919—Must every copy of order nisi 6e. stamped ?—Translation of ordernisi—Summons—Duplicate in Sinhalese and Tamil,
Every copy of an order nisi for service on respondents must bestamped, and must be in the English language.
The summons served upon defendants should be in the Englishlanguage, and should not be merely a translation.
npHE appellant applied for letters of administration to the estateof one Ehanayaka Mudiyanselage Ausadahamy of Uhuniya.
Under section 531 of the Civil Procedure Code the appellantapplied to have copies of the order nisi served on the respondentsthrough the Court on affixing class stamps to the original copy ofthe order nisi, and not to the copies or their translations intendedfor service or for publication.
The learned District Judge (M. S. Shresta, Esq.) made thefollowing order:—
The point for decision is whether every copy of an order nisi shouldbe stamped, and whether a translation of it should also be stamped.
The Stamp Ordinance, No. 22 of 1909, provided that the followingshould be stamped : “ Copy of decree nisi, order nisi, or interlocutoryorder without reference to number, copy of decree absolute, or anyother decree.” Section 3 (1) of the amending Ordinance, No. 32 of1919, substitutes for these words the following: “ Every decree nis%
' order nisi, interlocutory order and' decree absolute, and all otherdecrees, and each and every copy thereof.** Though the wording isnot quite happy, I think there can be no doubt that it was intended. that every copy of an order y fii and every translation of it should bestamped. A translation is not the same thing as a copy, but it isobvious that it was not mentioned in the amending seetion referred to,because section 31, which requires the service of the order nisi, doesnot expressly mention that a translation of the order nisi, should beserved on respondents whose language is not English. And, evidently,translations of the order nisi served on such respondents by analogy tosummonses, translations of which are to be served under section 55 ofthe Civil Procedure Code on defendants whose language is not English.And it is to be noted that section 49 of the Code requires that with thoplaint should be submitted as many copies as there are defendants,each, in the case of Sinhalese, Tamil, or Moor defendants, translated into
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1920.
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1920,the language o! the defendant for whom it is destined. A translation is,
—-therefore, according to this section a ‘ copy translated into the language
Victoria v. of the defendant.
So far as I can see, a translation of an order nisi is served on a Sinha-lese, Tamil, or Moor in view of the provisions contained in sections 49 and55 of the Code. If sections 49 and 55 do not apply to an order nisi,a copy in English of the order nisi has to be served on each respondent.If these sections do apply, to an order nisi, a translation servod on arespondent must.be considered a copy for the reasons already given.
So far as copies of the order nisi obtained for advertising it undersection 532 of the Code are concerned, they need not, in my opinion, bestamped in view of the decision of the Supreme Court in The Attorney •General v. Pedru,1 that the duty of advertising an order nisi is cast onthe Court. *
My order therefore is' that all copies of the order nisi, includingtranslations, should be stamped, excepting such copies of translationsas are furnished for the purpose of advertising the order nisi.
Croos-Dabrera, for appellant.—Section 356 of the Code says thatthe procedure hereinbefore provided for the service of summonsshould be followed in the case of service of orders of Court. Section379 says that all orders in applications by way of summary proce-dure should be served “ subject to the rules hereinbefore prescribedfor service of summons.” An order nisi in a* testamentary case isan order in an application by way of summary procedure. Undersection 55 of the Code it is necessary that a translation should beserved if the defendant does not understand English. This is thepractice in all the Courts of the Island, and there is judicial decisionin support of it. (Marhi v. Dalukathu.2) There is no provision*for the service of both a copy and translation. Section 59 saysthat service shall be made by delivering a duplicate, which meanseither a copy or translation. The majority of the people of thiscountry do not understand English, and to hold that it is notnecessary to serve a translation would work great hardship. Underthe Criminal Procedure Code (section 44), what is required is eitherto serve a copy or a translation of summons or other process. Sincethe passing of the Civil Procedure Code, duplicate has been alwaysunderstood to mean either a copy or translation.
The amendment introduced by Ordinance No. 32 of 1919 says thatevery copy of an order nisi must be stamped. Copy does not meantranslation. An Ordinance imposing a burden, like the StampOrdinance, must be strictly construed, and as favourably as possibleto the subject. Re Estate of Margaret Wemham ;3 Donough on theIndian Stamp Act.
Garvin, S.-G. (with him Dias, C.G.), for Crown, respondent.—The procedure regarding service of summons is to be found in section59 and the subsequent sections. Section 59 requires only a duplicate
i (1912) 15 N. L. R. 388.2 {1891) 9 & O, C. 119,
3 {1898) 4 N. 1. R. 236.
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to be served* Duplicate cannot mean translation. There is nothing 1920.in section 65 which requires a translation to be served. The wordsv
“ each translated to the language of the defendant ” refer only to The Attorneycopies of plaint or concise statements. The presence of. the words General“ attached thereto ” shows that the summons is not to be translated.
In Marhi v. Dalukathu1 the question does not seem to have beenfully considered. In the case of Perera v. James* it would appear
-that'a translation was insisted on in addition to the copy. Thematter must be considered de novo. The practice of serving atranslation is not warranted by the provisions oi section 55. Englishis the language of the Court, and an important document such as aprocess of Court should be served in the language of the Court.
There is no guarantee that the translation served is always thecorrect one. The person served can always get it translated.[Schneider A.J.—The phrase “ copy or concise statement ” is aclerical error for “ copies or concise statements,” which is. to befound at the beginning of the section.] This explains the presenceof the word “ each.” Even in section 49 the phrase u copy orconcisestatement ” is in the plural. The reference is to copies or concisestatements of plaint. It is translations of these which have to beattached to the summons.
Croos~Dabrera, in reply.—There has been a cmrsus curiae withregard to this practice, which has been confirmed by judicialauthority and Courts should be slow in- disturbing it. It is notalways possible for a person who dpes not understand English to getan order of Court translated into his own language. It is the dutyof the Court to see that the translations issued are correct. Thereis a special officer appointed for this purpose.
September 16, 1920. Bertram C.J.—
This is a case which arises out of an amendment of the Stamp
Ordinance, which was effected by section 6 of Ordinance Ho. 32 df
An earlier Ordinance of the same year, No. 10 of 1919, hadsubstituted a new schedule B for the old schedule B of the Stamp
Ordinance, No. 22 of 1909. In that revised schedule there was aduly on copies of decrees nisi or orders nisi. The words were “ copyof decree nisi, order nisi, or interlocutory order without reference tonumber.” By section 6 of Ordinance No. 32 of 1919 the followingwords were substituted: “ every decree nisi, order nisi, inter*locutory order, and decree absolute, and all other decrees and earchand every copy thereof.”
Under the old practice it appears that only the original copyfirst issued by the Court was stamped. The other copies weremade by the party responsible for service, and it was thought>notnecessary to stamp them. The emphatic words “ each and every
x{t89l)9S.Q.C.119.
*(1908) 4* G. R. 122.
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copy thereof ” have made the matter clear, and it is not nowseriously argued that all these copies do not require stamping.It appears, however, from the evidence taken in this Court thataccording to the existing practice the documents presented for the
TheAttomey- PurPose °f the service of orders nisi in testamentary cases areGeneral sometimes copies of the English original, and sometimes, when therespondent is understood to he a Sinhalese -speaking person or aTamil-speaking person, they are Sinhalese or Tamil~translations.
Mr. Oroos-Dabrera, who appears for the appellant, contends thatthis is in fact the correct procedure; that these'translations arecopies Within the meaning of the Civil Procedure Code, but are notcopies within the meaning of the Stamp Ordinance, and that,consequently, service of an order nisi upon an English-speakingrespondent involves the payment of a stamp duty, but service of thesame order upon a Sinhalese- or Tamil-speaking respondent does not..His contention thus involves a double anomaly. The same wordmeans different things in two connected Ordinances, and the processof the Court in the very same proceeding involves a stamp in onecase, but not in another.
The Solicitor-General, on the other hand, maintains that thispractice is erroneous ; that the document served must in all casesbe a copy of the original order; that that copy, like the originalorder itself, must be in the English language ; and that the processthus in all cases involves the payment of a stamp duty.' I think theSolicitor-General is right. The material sections of the Code aresections 531, 530, 377, 379, 356, IS), and 59. Section 531 says thatthe order nisi shall be served upon the respondent and such otherpersons as the Court shall think fit to direct. Section 530 indicatesthat a testamentary action is to be considered as an action undersummary procedure. Section 377 refers to orders nisi under suchprocedure. Section 379 declares that, in the case of orders nisi, theservice is to be service of a copy, and that this copy is to be servedin the same manner and subject to the rules hereinbefore prescribedfor the service of a summons in a regular action. The Solicitor-General maintains that the rules referred to are those found insection 59 and the following sections, a part of the Code which isin fact headed with the word “ service.” He maintains that, inorder to ascertain how the copy of the order nisi is to be served,we need not look ahy further, and in particular, that we need notpay attention to section 55, upon which Mr. Croos-Dabrera mainlyrelies-.
There is a great deal to be said for this contention. But I am,nevertheless, disposed to think that section 55 is one of the sectionswhich section 379 was intended to bring into operation for thepurpose of an order nisi. There are certain provisions in that,section which I think, require to be looked at. At any rate, I willconsider -the question from the point of view that section 55 is, in
1920.
Bertram
G.J.
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fact, embodied for that purpose. Lqt us assume then that, inorder to ascertain the manner in which a copy of the order nisi is tobe served, we must examine the provisions relating to summonsesin that section. Mr. Croos-Dabrera maintains that in the caseof a Sinhalese-speaking or Tamil-speaking defendant the summonsmust be in the language of the person for whom it is destined.The Solicitor-General wholly traverses that contention. If welook at the initial words of the section, it appears that the Courtis to order summons to issue in a form prescribed by the schedule.That form is in English. There is nothing in those initial words todeclare that the summons has ixf be translated.-. If that was theintention of the section, the words “ translated into the languageof the defendant ” or similar words ought to have appeared afterthe word “ summons ” and before “ in form No. 15.” But no suchwords appear. It is suggested, however, that we shall find thenecessary words to give effect to kb. Croos-Dabrera’s contentionin a subsequent sentence. That sentence saysthe summons,together with such copy or concise statement, each translated intothe language of the defendant, attached thereto, shall be deliveredunder a precept from the Court to the Fiscal.” The importantwords in this sentence are “ each translated into the language of thedefendant,” and the question is, To what do these words relate ?Are they connected with the word “ summons,” or are they not ?It is important to note that these words are in the form of paren-thesis, marked off at either end by commas, and they are enclosedin a clause which is complete in itself. The words “ attachedthereto ” can only be read with the words “ such copy or concisestatement.” Grammatically speaking, therefore, it is not possibleto connect the words “ each translated into the language of thedefendant ” with the word “ summons.” The word “ each ” nodoubt presents some difficulty. It appears that it would be morecorrect if instead of “ each ” we had the word “ either, ” and thisapparent looseness of construction has suggested the words“ attached thereto ” might be considered as displaced, and thatthey might be read as though they followed immediately upon thewords “ concise statement.”
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BnsxBAU
C.J.
Victoria v.The Attorney-Oeneral
This is rather a violent suggestion. My brother Schneider,on the other hand, has pointed to what is obviously the correctexplanation of the difficulty in these words. These words “ eachtranslated into the language of the defendant” are obviously modelledupon similar words in section 49. They there refer to a word in theplural—the word “ copies ”—“ copies, each translated into thelanguage 6f the defendant,” and in section 55 that same expressionalso appears in the plural in the initial sentence “ the copies orconcise statements required by section 49.” Later in the section,however, probably by a clerical error, the words are in the singular—“ copy or concise statement.” The accompanying phrase “ each
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1920,
Bbbxbam
O.J.
Victoria v.
The Attorney-
General
translated into the language of the defendant/* which was originallyapplicable to an expression in the plural, has nevertheless remained.This expression is thus an incongruity. I think it is quite clearthat this, suggestion is the right one, and that the sentence needpresent no further difficulty. The phrase must therefore be con-strued, subject to that explanation, in its grammatical sense. Itcan have no connection with the word “ summons.”
It appears, therefore, that the intention of section 55 was thatthe summons served upon the defendant should always be a,repro-duction of the original summons, issued by the Court, and that likethat summons it should be in the English language. It is a formaldocument easily translatable, and as the Solicitor-General says,the balance of convenience is probably in favour of the defendantbeing served with a document in the precise terms for which theCourt is responsible, and not with a translation of thosa terms madeput by no responsible person. Under section 59 the summons ishe served by tendering a duplicate. The summons itself is' issuedin the English language, and I think it is clearly intended that theduplicate should be in the English language as well. It is quitetrue that under section 44 of the Criminal Procedure Code, wherethe summons is spoken of as being in duplicate, it is contemplatedthat one of the duplicates may be in another language. Thatarises on the express terms of that section. I do not think thatthe word “ duplicate ” in section 59 should be construed in anyother than in its natural sense.
These seem to be the principles applicable to the question. Butthe matter has come before this Court on previous pccasions in aseries' of cases which are conflicting. The first is Marhti v.Dalukathu.1There the Court expressed the opinion that the summons deliveredto the Eiscal in the case of a Tamil-speaking defendant should notbe in the English language, but in the language of that defendant.Eor the reasons I have explained, it appears to me that that opinion,which was delivered apparently not upon a very full considerationof the matter, ought not to be followed. – The next case is Perera v 'tJansz? The opinion expressed in that case was inconsistent withthat expressed in the case just cited. It was here held that section55 required that a translation of the summons in the defendant’slanguage should be served as well as the summons itself. Thisview of the matter cannot, in my opinion, be a correct one. Inmy opinion, we ought to decline to follow both of these mutuallyconflicting decisions. There is a third case which ought to bementioned, Leno Hamy v. Nonno? That case relates, not to the“ summons,” but to the “ copy of the plaint or concise statement ”which in section 55 must accompany the summons. The "Courtthere expressed the opinion that section 65 required that the
* (1891) 9 & C. a 119.K (1908) 4 A. 0. R. 122..
. » (1913) 17 N. L. R. 378.
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accompanying documents should comprise, not on]y a copy of theplaint or concise statement in the original, hut also a translationof the plaint or concise statement. It is not necessary for us forthe purposes of this case to express any opinion upon that viewof the matter. But I think it is a view jririoh may subsequentlyrequire further consideration.
The question arose in this case owing to the fact that, as therewas some delay in the payment of stamp duty, the Secretary hadto calculate the stamp duty. The matter was brought before theDistrict Judge, and the District Judge expressed the opinion byhis order that both the English copies and the translations whichit was proposed to serve should bear a like stamp. That orderappears to have been made upon a misconception. The ordershould be, that in all cases copies for service should be in thelanguage of the original order, and that they should all alike bearthe stamp prescribed by law. The appeal, therefore, in my opinion,should he dismissed, but the order should he varied. There will beno order as to costs, as the Crown does not press for them.
Db Sampayo J.—I entirely agree.
Sghkbidbr A.J.—I agree.
Appeal dismissed.
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1920.
Bebtbau
C.J;
Victoria v.
The Attorney-,
General