MODE OF AFFORDING THE OPPORTUNITY TO INVOKE RIGHT OF APPEAL
Mode of delivering Judgement and consequences of not notifying the date of Judgment.😓
Supreme Court- Duty of
the court to inform the date of judgement in open court- In the absence of
such information provided to the parties
in open court the obligation to notify
the parties of the date of judgement in advance by other means is discussed in
thud judgement.
Inability on the part
of a party but prefer an appeal within the stipulated period of time due to
having no such notice of Judgement.
David v. Choksy - SLR -
302, Vol 1 of 1996 [1993] LKSC 20; (1996) 1 Sri LR 302 (17 September 1993)
DAVID v. CHOKSY (SUPREME
COURT)
G.P.S DE SILVA, C.J. RAMANATHAN,
J. AND WADUGODAPITIYA, J.
S.C. APPEAL NO. 114/95 ‑ C.A. 297/94.
D.
C. COLOMBO 99951/M.
28 JUNE AND 18
JULY, 1996.
Civil Procedure ‑ Application for leave to appeal notwithstanding
lapse of time under section 765 of the Civil Procedure Code‑Notice of date of delivery of judgment ‑ Duty of Court ‑
Section 184 (1) of Civil
Procedure Code‑ Prevented by
causes beyond control from complying with sections 754 and 756 of Civil
Procedure Code.
The duty imposed by
section 184(1) of the Civil Procedure Code to pronounce judgment in
open court either at once or on some future day, of which notice is given to
the parties or their attorneys‑at‑law is a mandatory duty. The duty of pronouncing
judgment according to law was on the court itself. There is no duty cast on the
party to ascertain for himself the next date of judgment if such date has not
been fixed in open court. The duty cast on the court to ensure that notice of
the date of delivery of judgment is in fact given to the parties or their
attorneys‑at law is all
the greater when there is an inordinate delay of 2 years and 8 months. The case
had not been called for a period of about 2 years. In circumstances such as
these it would not be easy for even the attorney‑at‑law to ascertain the actual date of delivery of
judgment. There was the further significant fact that there was a crucial
difference between the certified copy of the journal entry No. 22 of 15.06.93
issued to the defendant on 28.4.94 and the certified copy of the same journal
entry issued to the plaintiff in March 1996. In the certified copy issued to
the plaintiff there are the following additional words appearing in the margin
on the left-hand side, "Notice issued on the parties 18.6". These
words do not appear in the certified copy issued to the defendant. The copy of
the notice was however in the record.
There was no proof that
the date of delivery of the judgment was notified either to the defendant or
his attorney‑at‑law. The presumption arising from section 114 of the
Evidence Ordinance is a rebuttable presumption.
It could rightly be
said that the defendant was prevented from causes beyond his control from complying
with the provisions of sections 754 and 756 of the Code.
APPEAL from
judgment of the Court of Appeal.
Kanag‑Iswaran P.C. with M.A. Sumanthiran for Defendant‑Appellant.
Chula De Silva
P.C. with M. Maharoof and T. Ratnayake for Plaintiff‑Respondent.
Cur. adv. vult.
August 26, 1996.
G. P. S. DE SILVA, C.J.
The Defendant made an
application under section 765 of the Civil Procedure Code to admit
and entertain the petition of appeal from the decree notwithstanding lapse of
time. The application was refused by the Court of Appeal on the ground that he
failed to satisfy the Court that he "was prevented by causes not within
his control" from complying with the provisions of section 754 and 756 of
the Code. Hence the appeal to this court by the Defendant. Leave to appeal was
granted only on the following question :‑
"Has the Appellant satisfied the court that the delay in appealing was due
to causes not within his control within the meaning of section 765 of the
Code."
Journal entry (J. E.)
No. 20 of 19.10.90 shows that the parties tendered documents and written
submissions and that delivery of judgment was fixed for 15.01.91. J.E. No. 21
of 8.03.91 states, "By a mistake the case was not called on 15.01.91 for
delivery of judgment. Judgment is not ready. Call on 29.05.91 for judgment.
J.E. No. 22 of 15.06.93 states that the case will be called on 30.07.93 to
deliver judgment and "to notice parties for that date. 'At this point it
is necessary to note a crucial difference between the certified copy of the
journal entry No.22 of 15.06.93 issued to the Defendant on 28.4.94 and the
certified copy of the same journal entry issued to the Plaintiff in March 1996.
In the certified copy issued to the Plaintiff these are the following
additional words appearing in the margin on the left-hand side "Notice
issued on the parties 18.6." The absence of these words in the certified
copy issued to the Defendant is of the utmost significance for the purposes of
the present appeal. The importance of this discrepancy will be referred to
later in this judgment.
To continue with the
journal entries, J.E. No. 23 of 30.07.93 states "Issue notices on the
Attorneys‑at‑Law for the plaintiff and defendant for
10.8.93." J.E. No.24 dated 10.08.93 states "Plaintiff present,
Defendant absent, notice Defendant for 17.9.93. Notice to Defendant issued
through Fiscal, Colombo. The judgment to be placed in the safe." The next
J.E. No. 25 dated 17.09.93 states that judgment has been pronounced.
The material part of
section 184 (1) of the Civil Procedure Code provides : "The
Court,...... shall, pronounce judgment in open court, either at once or on some
future day, of which notice shall be given to the parties or their proctors at
the termination of the trial". There is no doubt that the provisions of section
184 of the Civil Procedure Code are mandatory. As stated by Atukorale, J.,
in Gunawardena v. Ferdinandis (1982 SLR VOL 1 Page 256[1]) "They
are so designed as to ensure that the parties to an action receive due notice
of the date of pronouncing judgment so that they may avail themselves of the
opportunity of exercising the rights which the law confers on them on the
judgment being pronounced."
The question that
arises for decision on this appeal is whether there is any evidence to show
that notice of the delivery of the judgment on 17.09.93 was given to the
defendant or his attorney‑at‑law. Mr. Chula de Silva for the Plaintiff submitted
that there is ample evidence to establish that the court has complied with
section 184 (1) of the Civil
Procedure Code. Mr. de Silva relied strongly on the marginal note made in J.E.
No. 22 of 15.06.93 which states, "notice issued to the parties".
Counsel also placed much reliance on the copy of the notice sent by the
Registrar of the District Court to the defendant dated 18.06.93. The copy of this
notice remains in the record. Mr. de Silva also pointed out that the record
does not show that the notice issued on the defendant has been returned
undelivered. In support of his contention, Counsel referred us to the
presumption under section 114 of the Evidence Ordinance, namely that the court
may presume that judicial and official acts have been regularly performed.
Finally, Mr. de Silva stressed that there is no affidavit from the attorney‑at‑law
for the Defendant stating that he was not served with notice.
On the other hand, Mr.
Kanag‑Isvaran urged that
there is no proof that notice of the date of delivery of judgment was dispatched
to or received by the defendant or his attorney‑at‑law. The defendant in his affidavit has denied the
receipt of a notice informing him of the date of delivery of the judgment. The
absence of an affidavit from the attorney‑at‑law of the Defendant is no doubt a point in favour
of the plaintiff.
In considering the
rival contentions advanced on behalf of the parties, there is one salient and
striking feature in this case, namely a delay of no less than 2 years and 8
months in delivering the judgment. Whatever may be the reason for this
deplorable delay, it has an important bearing on the issue before us. As
observed by Atukorale, J., in Gunawardena v. Ferdinandis
(supra) "The duty of pronouncing judgment according to law was on the
court itself......There is in my view no duty cast on a party to ascertain for
himself the next date of judgment if such date has not been fixed in open
court." The duty cast on the court to ensure that notice of the date of
delivery of judgment is in fact given to the parties or their attorneys‑at‑law
is all the greater when there is an inordinate delay of 2 years and 8 months.
In circumstances such as these, it would not be easy for even the attorney‑at
law to ascertain the actual date of delivery of judgment. It would appear that
the case has not been called for a period of about 2 years. There is the
further significant fact that there is a discrepancy in the certified copies of
J.E. No.22 dated 15.06.93 issued to the defendant and the plaintiff (and
referred to above). In these circumstances I find myself unable to take the
view that notice has in fact been dispatched to the defendant despite the fact
that a copy of notice remains in the record. J.E. No. 23 of 30.7.93, where the
court made order to issue notice on the attorney‑at‑law for the Plaintiff and defendant rather suggests that the court
itself was not satisfied that notice has gone out on the defendant. The next
date on which the case was called was 10.08.93 and on this date the Plaintiff
was present but not the Defendant. On a scrutiny of the material on record it
seems to me that there is no proof that the date of delivery of the judgment
was notified either to the Defendant or his attorney‑at‑law.
The presumption arising under section 114 of the Evidence Ordinance is of
course a rebuttable presumption.
The position then is
that the court failed in its duty to give notice to the Defendant or his
attorney‑at‑law of the date of delivery of judgment as required
by section 184(1) of the Civil
Procedure Code. In this view of the matter it could rightly be said that the
Defendant was "prevented from causes not within his control "from complying
with the provisions of section 754 and 756 of the Code. Thus the Court of
Appeal was in error in taking the view that the Defendant has failed to satisfy
the court in regard to the condition set out in the first proviso to section
765 of the Code.
For these reasons, the
appeal is allowed, the judgment of the Court of Appeal is set aside and the
Court of Appeal is directed to "admit and entertain" the petition of
the appeal of the defendant and to take steps according to law.
In all the
circumstances I make no order as to costs of appeal.
RAMANATHAN, J. ‑ I agree.
WADUGODAPITIYA,
J. ‑ I agree.
Appeal allowed.
[1]
COURT
OF APPEAL – Gunawardena vs. Ferdinandis -C.A. S.C. 159/78 ‑ D.C. Mount Lavinia No 13/Spl. Section 184 Civil Procedure Code -
Judgment pronounced twice ‑
Court's inherent powers to correct its own mistakes.
A judgment was due
to be pronounced by the Judge. After a series of postponements, the Judge fixed
it for 2.1.78. On 2.1.78 it was again postponed for 1.2.78 but this
postponement was done in chambers and not in open Court, as it was during the
Court vacation. However, judgment was pronounced on 8.2.78 but on this day
neither the Appellant nor his Attorney was present as they did not have notice.
When the Judge learned of this mistake, he noticed appellant's lawyer to be
present on 10.3.78 and on this day he pronounced judgment in open court in the
presence of the lawyers of both sides. The question was raised whether the
judge could correct his own errors.
Held: that the Judge had correctly invoked court's inherent powers to correct its own mistake by pronouncing the same judgment afresh.
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