Attorney General V. Karunaratne Et Al

1935   Present : Poyser and Koch JJ. and Soertsz A.J.

ATTORNEY-GENERAL v. KARUNARATNE et al.

326-D. C. Galle, 32,345.

Appeal-Petition of Appeal-Failure to supply stamps for decree of Supreme Court-Fatal irregularity-Stamp Ordinance, No. 22 of 1909, schedule B, part 2.

Failure to deliver, together with the petition of appeal, stamps for the decree of the Supreme Court and the certificate in appeal is a fatal irregularity.

CASE referred to a Bench of three Judges by Garvin S.P.J. and Maartensz J. The question for determination was whether an appeal should be rejected on the ground that the stamps for the decree of the Supreme Court and the certificate in appeal were not delivered to the Secretary of the District Court together with the petition of appeal.

H. V. Perera (with him A. L. Jayasuriya), for defendants, appellants.- The case of Bandara v. Baban Appu [1 Matara. cases. 203.] was first listed before a Bench of two Judges on November 8, 1892, and it stood out of the list on that day. It was relisted on November 16, 1892, when three Judges sat by accident. In 1892 there was no provision for a reference to a Full Court. Sections 41 and 52 of the Courts Ordinance were the only provisions then existing.

It is necessary that there should be a reference to a Full Court. It will not be presumed that the Judges sat on such a reference. There is nothing to show that a Full Court was specially convened to hear Bandara v. Baban Appu (supra). There are not three judgments in that case. (Vide differing views on this point in 21 N. L. R. 93 and 21 N. L. R. 170).

| SOERTSZ J. referred to section 774 of the Civil Procedure Code.]

A " judgment" there refers to reasons, as distinguished from order or decree. After the Code, every Judge has to deliver a judgment. If three Judges merely happen to be present, it would not be regarded as a judgment of the Full Court, unless there was a reference to the Full Court. But where there has been a reference, a judgment of one Judge might be regarded as the judgment of all.

All the Judges must not only be present, but must participate in the proceedings (Jane Nona v. Leo [225 N. L. R. 245.] ).

See In re Wappu Marikkar[3 14 N. L. R. 225.], where Wood Renton J. referred to a case and distinguished it from a Full Bench case, because one of the Judges did not seem to have taken any part in it.

The Courts Ordinance gives a right of appeal. It is a serious matter for an appeal to be dismissed without hearing. The petition of appeal is a document that must be stamped, but the certificate in appeal is a document that is executed by the Secretary of the Court.

" Together with " in the Stamp Ordinance does not mean " at the same time as", but it means " in addition to". We have to consider the purpose of the Stamp Ordinance. It is a revenue enactment, and not one

made for the benefit of the party respondent to the appeal. Where the stamp has been provided in time, a party should not be deprived of the right of appeal.

The word " shall" in the Stamp Ordinance is only directory, not imperative. It has often been interpreted as directory. One must therefore have regard to the purpose of the enactment. If stamp is not delivered at the same time as the petition of appeal, then party takes the risk of the stamp not being available at the time it is required.

Counsel cited Bosanquet v. Woodford [1 5 Q. B. 310, or 114 Eng. Rep. 1266.]

The Court should take a practical view of the case.

J. E. M. Obeyesekere, Acting D. S.-G. (with him Basnayaka, C.C.), for plaintiff, respondent.-At the date Bandara v. Baban Appu (supra) was decided, the Supreme Court consisted of the Chief Justice and two Puisne Judges. The Supreme Court Minutes show that when this case was decided all three Judges were present. It is therefore in fact a decision of the Full Court. It must be presumed that all three Judges, who were present, took part

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