CPC 86(2) - INTERPRETATION 8(2) - COMPUTATION OF 14 DAYS TO FILE APPLICATION TO PURGE DEFAULT- 14TH DAY FALLS ON PUBLIC HOLIDAY- INTERPRETATION ORD SEC 8(2) IS APPLICABLE
SC.HC.CA.LA No. 268/11
In terms of section 86 (2) of the CPC the reckoning of the period of 14 days should be done regarding The provisions of section 8 (1) of the interpretation Ordinance. Accordingly, if the last date on which the application has been made falls on a day on which the court is closed then the application would be taken as duly filed if the person affected by the ex parte decree files the same on the next day thereafter on which the court or office is open.
In Ceylon Brewery Ltd., v. Jax Fernando, Proprietor, Maradana Wine Stores (2001) 1 SLR 270, Wickremasinghe v De Silva (1978-79)2SLR 65, Silva v. Sankaran and others (2002) 2 SLR 65.
In Ceylon Brewery Ltd., v. Jax Fernando, Proprietor, Maradana Wine Stores (2001) 1 SLR 270, Wickremasinghe v De Silva (1978-79)2SLR 65, Silva v. Sankaran 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.J. sated that it is settled law that provision which go to jurisdiction must be strictly complied with. In the case of Ceylon Brewery Ltd., the Petition and affidavit were 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 Silva Vs Sankaran 2002 SLR 2 page 209 the period of 60 days to file the petition of appeal was strictly enforced without having recourse to section 8(1) of the Interpretation Ordinance.
In Wickremasinghe v De Silva (1978-79)2SLR 65 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 were stricly applied. 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.
In State Trading Corporation v. Dharmadasa ((1987) 2 SLR 235, ) 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”.
“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 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”.
Per Justice Dep P.C
"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. MohomadMarikkar, 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".
“ ....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”.
Per Justice Dep P.C
"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. MohomadMarikkar, 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".
Priyasath Dep, PCJ
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 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 have
to 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
particular 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 intervening 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. Jax Fernando, Proprietor,
Maradana Wine Stores (2001) 1 SLR 270, Wickremasinghe
v De Silva (1978-79)2SLR 65, Silva v.
Sankaran 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.J.
“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.
In order 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 anytime 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
VDharmadasa (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 13 th 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. MohomadMarikkar, 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
1. Flexport (Pvt) Limited of No. 127, Jambugasmulla Road, Nugegoda
2. Puwak Dandawe Narayana Nandadasa of No. 127, Jambugasmulla Road, Nugegoda
3. Mallika Devasurendra of No. 127, Jambugasmulla Road, Nugegoda
Defendants-Appellants-Petitioner
Vs.SC.HC.CA.LA No. 268/11
WP/HCCA/Mt/70/04/F Commercial Bank of Ceylon Limited of No.
D.C. Mt. Lavinia Case No. 1032/96/M 21, Bristol Street, Colombo 01 and having a
branch office and/or a place of business called and known as the “Wellawatte Branch” at No. 343, Galle Road, Mount Lavinia.
Plaintiff-Respondent-Respondent
Marsoof, PC, JDep, PC. J &
Marasinghe, J
H. Withanachchi with S.N. Vijithsingh for the Defendant-Appellant-Appellants.
S.A. Parathalingam, PC with V. Senadhira instructed by M/s Samararatna Associates for the Plaintiff-Respondent-Respondent.
Argued on : 26.09.2014
Decided on : 15.12.2014
1
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