Judgment

The Petitioner instituted action bearing No. 05/2013 in the High Court of Anuradhapura praying inter alia the following relief:

a) Issue notices;

b) Grant and issue a mandate in the nature of a writ of mandamus to convey the No.1 stall, in the 14 Stall Trade Centre at Anuradhapura Dharmapala Mawatha according to the value of පෙ07 and conditions in පෙ09;

c) Grant a stay order which will stay the proceedings of evicting Petitioner Respondent from the said stall until this matter is concluded;

d) Grant an Interim Order restraining the sale of the said stall to a 3^rd party until this matter is concluded.

However, the Respondent filed objections by way of written submissions and both parties agreed to file further written submissions to dispose this matter. It appears that the learned High Court Judge held in favour of the Petitioner and granted a writ of mandamus against the Respondent.

Being aggrieved by the said order dated 22.10.2015, the Respondent-Appellant had preferred an appeal in terms of Article 154P (4) of the Constitution. When this matter was taken up for hearing, a preliminary objection that the Respondent-Appellant’s appeal is filed out of time was raised on behalf of the Petitioner-Respondent. On that basis, the Petitioner-Respondent sought a dismissal of this appeal.

Since both parties agreed to dispose the said preliminary objection by way of written submissions, Court allowed parties to file written submissions only in respect of the said preliminary objection. It was the contention of Petitioner-Respondent that the Respondent-Appellant had not filed the petition of appeal within the prescribed period. It was submitted on behalf of the Petitioner-Respondent that for the purpose of the preliminary objection, the following dates of events may be noted.

i. The Judgment of the Provincial High Court was delivered on 22.10.2015

ii. Notice of appeal was filed on 05.11.2015

iii. The petition of appeal was filed on 22.12.2015 

As per Rule 11(3) of the Court of Appeal (Procedure for appeals from High Court) Rules 1988 regarding the procedure to be followed in Appeals from orders made by a High Court in the exercise of its jurisdiction under Article 154P (4) of the Constitution, a notice of appeal should be presented within a period of 14 days from the date of the Order appealed against was pronounced. How the said 14 days should be calculated is stated in the same Rule. In the case at hand, the notice of appeal has been filed within time. As per Rule 12(2), the petition of appeal should be filed in the High Court itself within 60 days from the date of the Order appealed against was pronounced.

The Order was pronounced on 22.10.2015.

Thus, petition of appeal should have been filed on 21.12.2015. However, the petition has been filed on 22.12.2015, which is 1 day out of time. Though Rule 11(3) as stated above specifies as to the manner how 14 days should be calculated, Rule 12(2) does not state as to how the 60 days should be calculated.

It appears that the Appellant has filed notice of appeal within 14 days from the date of Order in terms of Section 755 of the Civil Procedure Code. However, Appellant has failed to comply with Section 755(3) of the Civil Procedure Code by tendering the petition of appeal within 60 days from the date of Judgment.

It is seen that Section 755(3) of the Civil Procedure Code requires Appellant to tender the petition of appeal to the original Court within 60 days from the date of Judgement or Final Order. Thus, filing the notice of appeal in terms of Section 754 (4) and filing the petition of appeal in terms of Section 755(3) are mandatory provisions when preferring an appeal.

In the case of Vithana Vs. Weerasinghe & Another [1981] 1 SLR 52, the Appellant had complied with the provisions of Section 754 of the Civil Procedure Code by giving notice of appeal within the prescribed period of 14 days but had failed to file the petition of appeal within 60 days. His petition of appeal was late by one day and hi