Balasubramanian Pillai V. Valliapa Chettiar

1938 Present: Hearne J. and Wijeyewardene A. J.

BALASUBRAMANIAN PILLAI v. VALLIAPA CHETTIAR.

APPLICATION FOR CONDITIONAL LEAVE TO

APPEAL TO THE PRIVY COUNCIL.

286-D. C. Colombo, 4,520.

Privy Council-Application for conditional leave-Notice of intended application When it should be given-Appeal ( Privy Council ) Ordinance, rule 2, schedule. 1.

Where an application for conditional leave is made under rule 2, schedule I of Appeal (Privy Council) Ordinance, No. 31 of 1909, it is not imperative that the respondent should receive notice of the intended application before it is filed.

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

H. V. Perera, K. C. (with him S. Subramaniam), for the petitioner.

E. F. N. Gratiaen (with him J. A. T. Perera), for the respondent.

Cur. adv. vult.

August 31, 1938. HEARNE J. -

This is an application for conditional leave to appeal to the Privy Council.

Judgment was entered by this Court on May 27, 1938, in S. C. 286 (F) D. C. Colombo, 4,520; the judgment was a final judgment and the matter in dispute on appeal is over Rs. 5,000 in value.

Two communications which, it is claimed, gave the opposite party notice of the applicant's intention to apply to this Court for conditional leave were sent to the respondent.

The first notice (A) was sent by registered express delivery post on May 30, 1938, and was delivered to the respondent on the same day. It is, in my opinion, doubtful that this notice can be construed as a notice of intention to apply to this Court for conditional leave, but I do not decide the question as, in the view I take of the second notice, it is unnecessary.

The second notice (D) which admittedly was a notice of intention to apply to this Court for conditional leave was posted on June 8, 1938, and addressed to the respondent at his address at 295, Galle road, Colpetty. The respondent left Colombo on June 9, at 4 A. M., and received D on June 10, on his return. The notice was presumably delivered by post at his house on June 9. On the evening of June 8 the applicant filed his application for conditional leave.

The notice D was admittedly posted and received by the respondent within 14 days from the date of the judgment appealed from, but it is argued that as the respondent did not receive the notice before the applicant filed his application, the provisions of Rule 2 of Schedule I. of the relevant Ordinance have not been complied with (Vol. 4, p. 422).

The Rule is as follows : - ?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 Wijeyesekere v. Corea 1, Drieberg J. said, ?The form of notice adopted in practice includes 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?.

Poyser S. P. J. and Koch J. dissented from this view in Pathmanathan v. Imperial Bank of India 2 ?Apart from the fact? Poyser J. said ?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?.

It would appear from this passage in Poyser J's judgment which I respectfully

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