Pathmanathan V. The Imperial Bank Of India

1937   Present: Poyser S.P J. and Koch J.

PATHMANATHAN v. THE IMPERIAL BANK OF INDIA.

136-D. C. Colombo, 46,921.

Privy Council-Application for leave to appeal-Computation of time- Exclusive of Supreme Court vocation-Notification of day of application unnecessary-Ordinance No. 31 of 1909, schedule I., Rule 2.

In computing the period of thirty days, within which an application for leave to appeal should be made under Rule 2 of Schedule I. of the Appeals (Privy Council) Ordinance, the days included in a vacation of the Supreme Court should not be reckoned.

The applicant is not bound to give the respondent notice of the day on which the application would be made.
Wijesekere v. Corea (33 N. L. R. 349) not followed.

THIS was an application for conditional leave to appeal to the Privy Council.

Applicant K. Pathmanathan, appears in person. 

Weerasooria, for respondent.

Cur. adv. vult.

 March 12, 1937. POYSER S.P.J.-

Two points were taken by Mr. Weerasooria on this application. The first point taken was that the notice* of this application which was given to the respondent although admittedly given within a period of fourteen days, did hot intimate the day on which such leave would be applied for. The material rule is as follows: - (2) " Application to the Court for leave to appeal shall be made by petition within thirty days from the date of the judgment to be appealed from and the applicant shall, within fourteen days from the date of such judgment, give the opposite party notice of such intended application". In support of that argument the case of Wijesekera v. Coreal[1 33N.L.R. 349] was cited. In that case the following occurs in the head note-"Where a person applies for conditional leave to appeal to the Privy Council the notice served on the respondent must contain an intimation of the day on which such leave will be applied for ".

On looking at the judgment of Drieberg J. it appears that he was doubtful if a notice at all was served. The petitioner apparently stated he had sent a telegram to the respondent and produced a receipt for a telegram which contained no mention of the person to whom it was directed. The Judge does however in the course of his judgment state " The form of notice adopted in practice include an intimation of the day on which the petitioner will move in the Supreme Court and this is absolutely necessary in order that the respondent may be present or arrange for his representation on the day stated or any other day to which the hearing is adjourned. A mere notice by a petitioner that he is appealing against the order is, in my opinion, not sufficient".

With the greatest respect I do not think the rule in question requires that the notice must contain an intimation of the day on which the application will be made and it should be added that this decision being the decision of one Judge is not binding on us.

In my opinion the applicant had substantially complied with the provisions of this rule in his notice of December 12, 1936, addressed to the respondent. Apart from the fact that the rule does not specifically state that the day shall be named upon which the application will be made, in practice it would be impracticable to name any such day. The day on which the application will be heard would be decided by the Registrar in accordance with the usual practice. Further in my experience the practice in this Court has been for the applicant to apply in the first place " ex parte" for a, notice of his application to be served on the respondent and that would appear to be the most convenient practice.

* Notice referred to.

To. The Imperial Bank of India, Colombo.

Take notice that I shall apply to the Supreme Court of the Island of Ceylon within Thirty days of the date of the judgment of the Supreme Court in the above case for leave to appeal to the Privy Council from the said judgment of the Supreme

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