Kulantaivelpillai V. Marikar

1918 Present: Bertram C.J. and De Sampayo J.

KULANTAIVELPILLAI
v. MARIKAR

90-D. G. (Inty.) Puttalam, 3,023.

    Dies non-Sunday-Judge accepting plaint on a Sunday in his house " Court "-Ordinance No. 4 of 1886.

The question whether a Judge is acting judicially is not to be determined by the building or place where he sits, but by the capacity in which he purports to act.

A Judge may accept a plaint in a civil ,case in chambers at his residence. This act is not rendered invalid by being performed on a Sunday.

BERTRAM C.J.-" The effect of the declaration of a day as a public holiday and dies non by Ordinance No. 4 of 188S is twofold. In the o first place, it excuses judicial officers and their subordinate ministerial officers from the necessity of attending Court, or of performing any judicial or ministerial acts, on that day; in the. second place, it protects any member of the public from being forced to attend Court, or to attend any judicial proceeding held elsewhere than in Court, on that day. It does not affect any judicial act or proceeding which may be validly done or taken in the absence of a party, and which, consequently, does not involve his personal attendance. Further, it does not preclude a judicial officer, or any of his ministerial subordinates, from waiving his privileges if he so decides, and from doing any act or taking part in any judicial proceeding on a day declared to be a holiday. There is nothing either in the Ordinance or in the principles laid down by Voet which declares null and void any judicial act which a judicial officer voluntarily elects to do, and which does not involve the compulsory attendance before him of any party affected."

THE facts appear from the judgment.

A. -St. V. Jayawardene (with him Bawa, K. C.), for appellant. Drieberg, for the respondent.

Cur. adv. vult.

October 31, 1918. BERTRAM C.J.-

In this case two objections are raised to the validity of the proceedings which are said to invalidate all orders made in the case subsequent to the matters complained of. The first objection is that the District Judge accepted the plaint and issued summons in the action upon a Sunday. The second objection is that he took these proceedings, not in Court, but in his own residence.

The facts are that the District Judge being in Puttalam on a certain Sunday, the plaint was tendered to him for acceptance in chambers at his own residence. Application was also made to him, firstly, to issue summons; and secondly, to grant an interim injunction. We need not consider the question of the granting of the interim injunction, because we are not now dealing with any

proceedings based upon that injunction. Nor do I think it is necessary to say very much about the question of the issue of summons. It is not clear that the District Judge did order the issue" of summons on this Sunday, but even if he did, it is purely a . ministerial act. But it is hardly contested that ministerial acts might be performed in connection with judicial proceedings upon a Sunday.

.The important question to be considered is, whether it was competent for the District Judge to accept a plaint on a Sunday. The acceptance of a plaint may for this purpose be considered a judicial act, inasmuch as it involves the consideration of various provisions of the Civil Procedure Code by the District Judge, and the giving of a decision may be the subject of subsequent judicial review. It is urged by the appellant that under no circumstances can a District Judge accept a plaint on a Sunday, or at least that he can only do so if strong actual necessity is affirmatively proved. The question is purely a question of interpretation of statutes, and there are only two statutory provisions which may be considered to affect the matter. The first is section 365 of the Civil Procedure Code, and the second is section 4 of the Holidays Ordinance of 1886. It is quite

Click Here to Read the rest of this document