NALLAN v. OSSEN

NALLAN v. OSSEN.

D. C., Colombo, 10, 074.

 

Tims, calculation of-Summary procedure under chapter LIII. of the Civil Procedure Code-Sundays and public holidays.

In the calculation of the time within, which a defendant is to obtain leave to appear and defend on a summons under chapter LIII. of the Civil Procedure Code, Sundays and public holidays are to be included; but when the last day of the period allowed falls on a Sunday or public holiday, the defendant may move on the next Court day.

THE facts of the case appear in the judgments.

Dornhorst and Pereira, for appellant. Sampayo, for respondent.

5th August, 1897. Withers, J.-

This appeal concerns an important point of practice. A liquid claim was presented to the Court under chapter LIII. of the Code, and summons went out in conformity with the claim. The material part of the summons runs thus: -" You are hereby " summoned to obtain leave from the Court within seven days " from the service here of, inclusive of the day of such service, to " appear and defend the action, and within such time to cause " an appearance to be entered for you, in default whereof the " plaintiff will be entitled at any time after the expiration of such " seven days to obtain a decree," &c. The summons was served on the 31st May last, so that the seventh day fell upon a Sunday. The next day, Monday, the defendant appeared before the Court below and obtained leave to defend; eight days' time was allowed the defendant to file answer. On the 8th June plaintiff moved the Court to vacate its order granting leave to the defendant to put in his answer, and to enter up judgment for the plaintiff on the ground that the Court's order was made per incuriam, the defendant being out of time.

The question for decision is, was the last day, Sunday, to count one of the seven days, or as that was a dies non, was Monday to take its place ?

The judge held that Monday was in time, and hence this appeal. Against this order refusing plaintiff's application was cited a judgment reported in 1 S. C. R. 131 (De Silva et al. v. Hendrick et al.). That case concerned an action under section 247 of the Civil Procedure Code, where the party aggrieved has fourteen days' time from the date of the adverse order to institute his action. In that case the fourteenth day fell on a Sunday, and the action was instituted on the following Monday.

Mr. Justice Dias and Mr. Justice Lawrie, who composed the Court of Appeal, decided that Monday was too late.

They followed the ruling of the Full Court in the case of Caste Lebbe v. Idroos Lebbe Marikar reported in 9 S. C. C. 182. It was there held that in the computation of the fourteen days under section 247 Sundays and public holidays are included.

Mr. Dornhorst, who appeared for the appellant, very properly called our attention to a case in the Civil Minutes, which came up before Mr. Justice Dias in appeal from District Court, Chilaw. There Mr. Justice Dias observed: " The rule with respect to the '' computation of time I take to be this, that in all cases in which '' by Ordinance or rules of Court any act is required to be done '' within a particular number of days without expressly excluding '' intervening Sundays and public holidays, these days should be " reckoned exclusive of the first and inclusive of the last day, '' unless the last day should happen to fall on a Sunday or public " holiday, in which case the reckoning is made exclusive of that "day also. "

This ruling at first sight appears to conflict with the ruling in De Silva v. Hendrick, but when one bears in mind the distinction between acts of a party and an act required by the law or a Judge the cases are quite reconcilable. In this case the Court required the defendant to appear and obtain leave within seven days.

The seventh day was a dies non, on which no judicial act could be done. The next Court day was therefore available to the defendant under Mr. Jus

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