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Supreme Court of Sri Lanka |
] [Hide Context] 92
RANINKUMAR
v.
UNION ASSURANCE LIMITED
SUPREME COURT
S.N. SILVA, C.J
BANDARANAYAKE, J. AND
EDUSSURIYA, J.
SC (CHC) APPEAL NO. 46/99
H.C. COLOMBO (CIVIL)
CASE NO 55/96(1)
29TH APRIL AND 6TH AND 27 JUNE 2003
Civil Procedure Code - Validity of notice of appeal filed personally by
appellant and not by his registered attorney - Section 754(4)
of the Code -
Defect not curable under section 759(2).
Section 754(4) of the Civil Procedure Code ('The CPC") requires that "the
notice of appeal shall be presented to the court
of first instance by the
party-appellant or his registered attorney within a period of 14 days " in the
instant case the appellant
himself had signed the notice of appeal and not his
registered attorney.
Held :
The lapse by the appellant's failure to present the notice of appeal by his
registered attorney goes to the basic validity of the
notice and as such is not
curable in terms of the provisions of section 759(2) of the Code which excludes
the application of that
section to any provision which prescribes the period
within which the act or thing is to be done.
Cases referred to :
1. Fernando v Fernando (1997) 3 SRI LR 1
2. Hameed v Deen (1988) 2 SRI LR 1
3. Sameen v Abeywickrama 61 NLR 553
APPEAL from the judgment of the High Court of Colombo.
93
Gamini Marapana, PC with Navin Marapana for appellant.
S.L. Gunasekera with Kushan De Alwis for respondent.
Cur. adv. vult.
July 24, 2003
EDUSSURIYA, J.
When this appeal was taken up for hearing, the learned Counsel for the
respondent invited this Court to reject the appeal in as
much as the appellant
himself has signed the notice of appeal and not his registered attorney-at-law.
Learned President's Counsel for the appellant then proceeded to make submissions
on this question and at the end of the day the
Court invited him to tender
written submissions.
Learned President's Counsel, by his oral submissions as well as written
submissions, has stated that he does not wish to attempt
to justify the
appellant's conduct in signing the "Notice of Appeal" in question when there
was a registered attorney-at-law
appearing for him, but invited this Court to
exercise the discretion vested in this Court in terms of section 759(2) of the
Civil
Procedure Code in the appellant's favour since no material prejudice will
be caused to the respondent.
Learned President's Counsel has submitted that the facts considered in the
judgment in Fernando v Fernando C) were similar to the
case now before us.
However he contends that even though the learned Judges in deciding that case
had cited with approval the statement
of S. N. Silva. J. as he then was, in the
Court of Appeal judgment, in Hameed v Deen (2), wherein S. N. Silva, J. had
stated that
"counsel for the appellant did not invite this Court to act in terms
of section 759(2) of the Civil Procedure Code. In any
event, this lapse referred
to above goes to the basic validity of the Notice and Petition and as such is
not curable in terms of
the provisions of section 759(2)", the decision of the
Privy Council in Sameen v Abeywickrama (3) had not been considered by
Court either in
94
Fernando v Fernando (Supra) or in
Hameed v Deen (supra) and that therefore both these decisions were per incuriam
and that had the
decision of the Privy Council in Sameen V AbeywicRrama
(supra) been considered Their Lordships who decided Fernando v Fernando
(supra)
and Hameed v. Deen (supra) would have arrived at a different decision.
Learned President's Counsel has submitted that Their Lordships of the Privy
Council had taken the view that in granting relief under
section 756(3) of the
Civil Procedure Code it was wrong to decide whether the non compliance
complained of would amount to a substantial
non-compliance and that relief under
section 756(3) should be granted only when there was more or less trivial non
compliance and
further that there was no limitation to the power to grant
relief.
In Sameen v Abeywickrama (supra) the Privy Council discussed the scope of
section 756(3) of the Civil Procedure Code and the question
whether relief could
be given in terms of that section to an appellant who had (1) failed to give
notice of the filing of a petition
of appeal and (2) failed to sign the bond
relating to security for costs in appeal.
At the date of the decision in Sameen v Abeywickrama (supra) an appellant who
was aggrieved with a decision of the District Court
had to file a petition of
appeal within ten (10) days of the pro- so announcement of the judgment as
prescribed in section 754(2)
of the Civil Procedure Code.
Section 755 required all petitions to be signed by some advocate or proctor.
Section 756(1) required the petitioner to forthwith
give notice to the
respondent that he will on a day specified within the period set out in the
section tender security for the
respondent's costs of appeal as directed therein
etc. The section also required notice of appeal to issue immediately on the
respondent
as set out therein on security for costs being accepted.
Section 756(3) reads as follows;
"In the case of any mistake, omission, or defect on the part of any appellant in
complying with the provisions of this section,
the Supreme Court, if it should
be of opinion that the respondent
95
has not been materially
prejudiced, may grant relief on such terms as it may deem just"
So that, clearly, relief may be granted in the case of any mistake, omission or
defect on the part of any appellant in complying
,, with the provisions of
section 756 only, and section 756(3) did not extend to any mistake, omission, or
defect in complying
with section 755 which required the petition of appeal to
be signed by some advocate or proctor or section 754(1) which required
the
petition of appeal to be presented to the court of first instance within a
period of ten days or seven days as the case may
be as set out in that section,
and therefore that Their Lordships of the Privy Council were not called upon to
decide on the applicability
of section 756(3) with regard to the failure of an
appellant to comply with the requirements relating to the presenting of a
petition
of appeal as prescribed in section 754(1) or the provisions of section
755.
It must be borne in mind that the Privy Council decision in Sameen v
Aheywickrama (supra) dealt with only the failure to sign the
bond in respect of
security for costs of the respondent and the failure to give notice of the
filing of a petition of appeal.
Under the Administration of Justice Law, No. 44 of 1973 which repealed the Civil
Procedure Code, an appellant was required to present
a notice of appeal within
the period prescribed, followed by a petition of appeal.
Thereafter, the Administration of Justice Law, No. 44 of 1973 was repealed by
the Civil procedure Code which required an appellant
to present a notice of
appeal as prescribed in section 754(3)and section 754(4).
Section 755 sets out that a notice of appeal shall be distinctly written on good
and suitable paper and shall be signed by the appellant
or his registered
attorney and shall be duly stamped. Section 755(1) sets out the particulars to
be contained in a notice of appeal.
Section 755(2) provided for the furnishing
Of security for the respondent's costs in appeal etc. Section 755(3) required a
petition
of appeal to be presented within the period prescribed therein. Section
755(4) referred to the forwarding of such an appeal to the
Court of Appeal.
Section 756 referred to the procedure to be followed in respect of an appeal
96
and an application for leave to
appeal. Section 757 refers to security for costs. Section 758(1) sets out the
particulars to be
contained in the petition of appeal followed by section 758(2)
which sets out that the appellant shall not be confined to the grounds
set forth
at the hearing of the appeal etc. Then comes section 759(1) followed by section
759(2) the purview of which this Court
has been called upon to examine.
Section 759(2) as amended by Act, No.79 of 1988 reads as follows :
"In the case of any mistake, omission or defect on the part 110 of any appellant
in complying with the provisions of the foregoing
sections, (other than a
provision specifying the period within which any act or thing is to be done) the
Court of Appeal may, if
it should be of the opinion that the respondent has not
been materially prejudiced, grant relief on such terms as it may deem just".
Therefore, no relief whatsoever can be granted where there is any mistake,
omission or defect in complying with a provision specifying
the period within
which any act or thing is to be done, even if the respondent is not materially
prejudiced.
Learned President's Counsel has in the course of his submissions referred to
several judgments which set out that technicalities
should be overlooked or
that relief should be granted in the case of non compliance of mere trivial
requirements. Those judgments
have no bearing on the question to be decided by
this Court.
Although section 755(1) sets out that the notice of appeal shall be signed by
the appellant or his registered attorney and section
755(1) does not refer to
any act which has to be done within a specified period, section 754(4)
specifies that "the notice
of appeal shall be presented to the court of first
instance for this purpose by the party appellant or his registered attorney,
within a period of fourteen days from the date when the decree or order appealed
against was pronounced exclusive of the day of
that date itself and of the day
when the notice of appeal
97
is presented and of Sundays and
public holidays, and the Court to which the notice is so presented shall receive
it and deal with
it as hereinafter provided. If such conditions are not
fulfilled, Court shall refuse to receive it".
The words "The notice of appeal shall be presented by the party appellant or his
registered attorney within a period of four
teen days " in section 754(4)
connote the handing over to the Court of first instance a duly signed notice of
appeal within
the period prescribed and not merely the physical act of handing
over of a purported notice of appeal which is not duly signed as
required by law
by the party appellant or his registered attorney. Hence, a notice of appeal
which has been signed by an appellant
and not by his registered attorney-at-law
will not be a notice of appeal contemplated by section 754(4) of the Civil
Procedure
150 Code.
It is for this very same reason I believe that S.N. Silva, J. as he then was, in
the Court of Appeal judgment in Hameed v. Deen
(supra) stated "In any event this
lapse (where the appellant had signed both the alleged Notice of Appeal and
alleged Petition
of Appeal and not his registered attorney-at-law) referred to
above goes to the basic validity of the Notice and Petition and as
such is not
curable in terms of the provisions of section 759(2)".
That decision was pronounced on 25th March 1988 and then section 759(2) was
amended by Amendment Act, No.79 of 160 1988 which was
certified on 18th December
1988 to read that section 759(2) shall not apply to a provision specifying a
time within which an act
has to be done and that amendment was the last nail in
the coffin as far as the learned President's Counsel's contention is concerned.
Therefore section 759(2) clearly does not apply to a situation where a
purported notice of appeal is not duly signed, since section
754(4) requires a
notice of appeal to be presented by the appellant or his registered attorney to
the court of first instance within
the period prescribed therein. I repeat such
a purported 170 notice is not one contemplated by section 754(4).
98
In any event, what is the relief
that can be given? To entertain the notice of appeal despite the defect and
hear the appeal? That
cannot be done as it would amount to a situation where
this Court would entertain an appeal in spite of there being no notice of
appeal
as required by section 754(4). In the alternative, direct the appellant to
tender a duly signed notice of appeal? Such a
notice of appeal would be clearly
in breach of section 754(4) as it would be filed beyond the period prescribed
therein.
Therefore it is clear, that the appellant advisedly refrained from moving Court
to accept a duly signed notice of appeal,
unlike in the case of Fernando v.
Fernando (supra).
For the above mentioned reasons, the "Notice of Appeal" is rejected nuncpro tune
and accordingly the appeal is also rejected.
No costs.
S.N. SILVA, C.J. - I agree.
BANDARANAYAKE, J. - I agree.
Appeal rejected.
] [Hide Context]
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