APPLICATION TO PURGE DEFAULT - CPC 86- INTERPRETATION ORD. SECTION 8 - COMPUTATION OF TIME- JUSTICE DEP
Flexport (Pvt) Limited
Vs
Commercial Bank
of Ceylon Limited of No
SC Appeal No. 03/2012
SC.HC.CA.LA No. 268/11
WP/HCCA/Mt/70/04/F .
D.C. Mt. Lavinia
Case No. 1032/96/
Before :
Marsoof, PC, J
Dep,
PC. J &
Marasinghe,
J
Decided on : 15.12.2014
Priyasath Dep, PC, J
This is an appeal against the judgment dated
07-06-2011 of the Provincial High Court of Civil Appeal of Mt Lavinia in Case
No. WP/HCCA/MT/70/04/F. The High Court affirmed the order dated 17-11-2004 of
District Court of Mt Lavinia in Case No. DC1032/96/M which rejected the application made under
section 86 (2) of the Civil Procedure Code to set aside the ex parte judgment
on the basis that it was filed out of time.
The Plaintiff-Respondent-Respondent (hereinafter
called and referred to as the “Respondent”) on 6th August 1996
instituted an action against the
Defendants- Appellants-Petitioners (hereinafter called and referred to as the
“Appellants”) for the recovery of money based on two causes of action.
The Petitioners filed an answer with a claim in reconvention.
The Respondent filed a replication in answer to the claim in reconvention. Thereafter this case was fixed for trial and
subsequently proceeded to trial. The trial was postponed on numerous occasions
due to various reasons.
On 24th June, 2003 when this case came up
for further trial the Petitioners were absent and unrepresented and the case
was fixed for ex-parte trial. An ex-parte judgment and decree was entered on
the 01st July 2003 against the Petitioners as prayed for in the
Plaint. The decree was served on the Petitioners on 11-10-2003.
The Petitioners on 27th October 2003 filed
an Application under section 86(2) of the Civil Procedure Code to set aside the
ex-parte judgment. The inquiry pertaining to the application filed by the Petitioners
was taken up on 17th November 2004.When the inquiry was taken up an
objection was raised by the Respondent
that the Petitioners have failed to prefer the said Application within fourteen
days as stipulated by Section 86(2) of the Civil Procedure Code and moved for a
dismissal of the said Application.
The Additional District Judge having heard the
submissions of the learned Counsel for the Respondent and the learned Counsel
for the Petitioners upheld the objection and dismissed the Application of the Petitioners. Thereafter
the Defendants (Appellants) preferred an appeal against the order dated 17th
November 2004 of the Additional District Judge of Mount Lavinia to the Court of
Appeal which was subsequently transferred to the Provincial High Court of Civil
Appeal of Mount Lavinia.
The Provincial High Court having considered the
written submissions as well as the oral submissions of the Counsel for the
Petitioners and the Respondent, by judgment dated 07th June 2011
dismissed the Appeal of the
Petitioners.
Being aggrieved by the said judgment dated 07th
June 2011, the Petitioners preferred this
Application for Leave to Appeal against the said
Judgment to the Supreme Court. The Supreme Court granted Leave to Appeal from
the said judgment on the grounds set out in sub paragraphs (i) to (iv) of
paragraph 14 of the Petition dated 18th July2011.
The Court having heard the submissions of both parties
directed parties to tender written submissions. As directed by court parties tendered
their written submissions.
The main
question that has to be decided by this Court is whether the order dated 17th November 2004
of the Additional District Judge
of Mount Lavinia in dismissing
the application of the Petitioners to set aside the ex parte order and the order
of the Provincial High Court of Civil
Appeal dated 07th June
2011 affirming the said order of the Additional District Judge on the basis
that the Petitioners have failed
to prefer the said Application within the prescribed period as set out in Section 86(2) of the
Civil Procedure of the District
Court is correct or not.
The section 86(2) of the Civil Procedure Code read
thus:
86(2) “Where, within fourteen days of the service of
the decree entered against him for default, the defendant with notice to the
Plaintiff makes application to and thereafter satisfies court, that he has
reasonable grounds for such default, the court shall set aside the judgment and
decree and permit the defendant to proceed with his defence as from the stage
of default upon such terms as to costs or otherwise as to the court shall
appear proper”
It is not disputed that the decree was served on the
Defendants on 11th October 2003 and petition and affidavit and other
documents were filed by the Petitioners on 27.10.2003 to vacate the ex-parte order
after the lapse of 14 days. The 14th day fell on 24th
October 2003 which was declared a public holiday, on 25th Saturday the court house was
closed and Sunday was a public holiday. Petitioners
submit that Section 8 (1) of the Interpretation Ordinance is applicable and if
these 3 days were excluded the Application
is within time. It is to be observed that the learned Additional District judge
and the learned High Court Judge did not consider the applicability of section
8 (1) of the Interpretation Ordinance.
The learned President’s Counsel for Respondent Bank
vehemently argued that the Interpretation Ordinance has no application to
Section 86(2) of the Civil Procedure Code.
The learned Counsel for the Petitioners on the other hand argued that
section 8 (1) of the Interpretation Ordinance applies and both the learned
Additional District judge and the learned High Court judge erred in law by
failing to consider the applicability of the Interpretation Ordinance.
The main question we must decide
is whether section 8 (1) of
Interpretation Ordinance applies to section 86(2) of the Civil Procedure Code
or not.
The section 8(1) of the Interpretation Ordinance
reads thus:
“Where a limited time
from any date or from the
happening of any event is appointed or allowed by any written law
for the doing of any act or the
taking of any proceeding in a court or
office, and the last day of the limited
time is a day on which the
court or office is closed, then the act
or proceeding shall be considered
as done or taken in due time if it
is done or taken on the next day
thereafter on which the court or office
is open.”
The word ‘within’ in relation to the time limit occurs
in section 86 (2) (application to set aside an ex-parte order), section, 754
(4) (notice of appeal) and section 755(3) (petition of appeal) in the Civil
Procedure Code. Therefore, judgments in relation to a section mention above are
relevant to the other sections too.
Under section 755(3) the Petition of Appeal shall be
filed within 60 days from the date of the judgment. There is no exclusion of
dates. However, the Appellant has a long
period of 60 days to file the Petition of Appeal
Under Section 754(4) of the Civil Procedure Code
Notice of Appeal shall be preferred within 14 days from the date of the decree
or order. However, the date of the decree or order and the date of filing the notice
and all Public holidays are excluded. Therefore, invariably the appellant will
get more than 14 days to file the Notice of Appeal.
Under Section
86(2) of the Civil Procedure Code the Applicant is required within 14 days to
file the Application. Unlike in the
Notice of Appeal intervenient public holidays falling within 14-day period,
date of the decree or order or date of filing the application are not
excluded.
The learned President Counsel for the Respondent in support
of his argument that there should be a strict compliance with the time limit cited
the following cases namely; the Ceylon
Brewery Ltd., v. Jacks Fernando, Proprietor, Maradana Wine Stores (2001) 1
SLR 270, Wickremasinghe v De Silva
(1978-79)2SLR 65, Silva v. Ankara and others (2002) 2 SLR 65.
In Ceylon Brewery Ltd., v. Jax Fernando,
Proprietor, Maradana Wine Stores,
Fernando, J. held that
“section 86(2)
of the Civil Procedure Code confers jurisdiction on the District Court to set
aside a default decree. Hence the period 14 days provided by that section to
make an application to set aside a default decree is mandatory.
Per Fernando.
“It is settled law that provision which go to jurisdiction
must be strictly complied with”.
In the above case the Petition and affidavit was filed
on the 15th day and the 14th day was not a Public holiday
or a day the court was closed. Hence the question of applicability of Interpretation
Ordinance did not arise.
In the Judgment given by the Court of Appeal in Wickremasinghe
v De Silva (Supra) Soza J held
that:
‘The provisions of section 753(3) of the Civil
Procedure Code which requires the petition of appeal to be filed within 60 days
from the date of the judgment are mandatory. Accordingly, where a petition had
been filed after the period of 60 days had lapsed the learned District judge
was correct in rejecting such a petition.’
Soza J in the above Judgment remarked that “Parties
should not wait till the last moment and then complain when they are caught out
of time”
In the judgment of the Court of appeal in Silva v. Sankaran and others (Supra) the Appellant lodged the Petition of Appeal
under section 754 of the Civil Procedure Code on Monday, 61st day as
the 60th day fell on Sunday, a public holiday.
It was held in this case:
(1) A
strict compliance is imperative and non-compliance is fatal to the appeal.
(2) The
words ‘within 60 days’ in section 755(3) restrict the right of the appellant to
file the petition of appeal beyond the time frame of 60 days given.
(3) The
provisions of s.8(1) Interpretation Ordinance do not apply.
To emphasis the word ‘within’ the learned President Counsel
for the Respondent referred to the Black’s Law Dictionary (6th Edition,
pp1602-1603) which provided definitions to the word ‘within’ thus: “when used
relative to time, has been defined variously as meaning any time before; at or
before; at the end of; before the expiration of; not beyond; not exceeding; not
later than”. (Glenn v.Garett,
Tex.Civ.App.,84 S.W. 2d 515,516)
The learned President’s Counsel for the Respondent submits that
the time period given in
86(2) of the Civil Procedure Code is mandatory and it should be strictly complied with and section
8(1) of the Interpretation
Ordinance has no application .
The learned Counsel
for the Defendant-Appellant Appellant submits that 14th day stipulated
under section 86(2) of the Civil Procedure Code fell on 24th October 2003 which happened to be a public
holiday followed by Saturday, a day the court was closed and Sunday was a public holiday, filing
the application on Monday the 27th is within time in view of the section 8(1)
of the Interpretation Ordinance.
He relied on the following cases State
Trading Corporation V Dharmadasa
(1987) 2SLR 235, Nirmala de Mel v.
Seneviratne and others 1982 2SRI LR
569 and Chandrakumar v. Kirubakaran 1989 2Sri LR (pg38) Selenchina
v. Mohomad Marikkar (2000) 3 SRI LR (Pg. 100), and Mendis v Mendis (2004) BLR( pg.
35).
In State Trading Corporation v. Dharmadasa (Supra)
Sharvananda CJ observed that:-
“Section
8(1) of the Interpretation
Ordinance will not avail
the appellant since the last date of
presenting the notice of appeal
to court was 16th June, a Friday-
a day on which the court was not
closed. Had the last being
Saturday, the 17th, then the notice of appeal could validly have been filed on Monday the 19th when the court was opened”.
In this case it was observed that:
“Notice of
appeal was not within
the time limit of fourteen days permitted
by Section 754(4) of the Civil
Procedure Code because allowing for the fact that the date of judgment and
date of filing of notice are not
counted and the 2 Sundays (4th and 11th
June) had to be excluded, there was time
to file the notice
of appeal only until 16th June (Friday).”
In the case of Nirmla
de Mel v. Seneviratne and others (Supra)
after the granting of leave by the Court
of Appeal to the Supreme Court ,petition
of appeal was filed one day after the
due date. The Rule No. 35 of the Supreme Court Rules of 1978 was then applicable. The court applied section
8(1) of the Interpretation Ordinance and
accepted the petition of appeal. It was held that :
“ On the
Application of this Rule of interpretation
it would appear that the Petition of Appeal filed on Monday
the 16th February 1981 which
was the next working day was within
time.
In the case of Selenchina
v. Mohomad Marikkar and others (2000)CLR Vol 111(pg.
100) S.N. Silva, CJ held :
“ ….the notice of
appeal was presented on
20.10.1986. If that day is excluded, the period of 14 days excluding the date of judgment pronounced
(i.e. 30.09.1986) and intervening Sundays and
public holidays would end on
17.10.86 which was a public holiday. The next day on which the notice should
have been presented was the 18th
, being a Saturday, on which the
office of the court was closed.
The next day, the 19th was a Sunday which too had to be excluded in terms of the
section. In the circumstances the notice filed on 20.10.1986 was within the period of 14 days
as provided for in section
754(4) of the Civil Procedure
Code”.
As stated earlier under Section 86(2) of the Civil
Procedure Code, the Applicant is
required within 14 days
to file the Application. Unlike in the Notice of Appeal[section 754
(4)] intervenient public holidays
falling within 14 day limit, the date of the decree, date of filing the application are not taken into account. Therefore
applicant’s time is limited to 14 days.
If the 14th day falls
on a public holiday or the date on
which the court is closed if he is required to file on the previous day he has only
13 days. If that interpretation is given it will be disadvantageous and
cause grave prejudice to the
Applicant.
In this case
24th October 2003 fell on a Public holiday, Saturday was a day
on which the court house was
closed and Sunday a public holiday. If strict interpretation is given to section
86(2) Appellant is required to file papers on the 13th day. For the
purpose of argument if we take a hypothetical case where
the 14th day fell on Sunday the 26th October 2003, the applicant has to file
papers on the 23rd.. In that
event he has to file papers within 11 days. The section 8(1) of the Interpretation Ordinance is meant
for situations like this to prevent
inconvenience or injustice to
the litigant.
I am inclined to
follow the Supreme Court judgments
in State Trading Corporation v. Dharmadasa,
supra, Nirmala de Mel v. Seneviratne and others supra, Selenchina v. Mohomad
Marikkar, supra; which held that if the last date of filing
falls on a public holiday or on a day the court house was closed, the act of filing of
papers could be done or taken on the next date thereafter, the day the court
or office is open. I hold that section 8 (1) of the Interpretation
Ordinance Applies to section 86 (2) of
the Civil Procedure Code.
For the reasons
stated above, I set aside the judgment
of the District Court of Mount Lavinia dated 17.11.2004 and the
judgment of the Provincial High Court
dated 07.06.2011 which affirmed the
judgment of the District Court.
In view of this order, the learned District Judge is directed to inquire into the Application filed by the Defendant-Appellant to set aside the ex-parte
order and thereafter make an appropriate order.
Appeal allowed. No Costs.
Judge of the Supreme Court
Saleem Marsoof, P.C., J.
I agree.
Judge of the Supreme Court
Rohini Marasinghe,
J.
I agree.
Judge of the Supreme Court
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