Wijesinghe Hamine V. Ekanayake Et Al.,

1940     Present: Howard C.J. and Soertsz J. 

WIJESINGHE HAMINE v. EKANAYAKE  et al.

 4-D. C. Matara, 11,374.

Privy Council-Application for conditional leave-Notice by post-Notice in letter addressed to another-Sufficiency of notice-Notice to all parties necessary-The Appellate Procedure (Privy Council) Order, 1921, r. 5.

Where notice of an application for conditional leave to appeal to the Privy Council was given by a letter containing the notice, sent through the post to the party to an address where the party was known to be staying, and where there was no denial of its receipt by the party,-  

Held, that the notice was sufficient to comply with the requirements of rule 5 of the Appellate Procedure (Privy Council) Order, 1921.

 Joseph v. Sockalingam Chetty (32 N. L. R. 59) followed. 

Where notice to a party was enclosed in a letter addressed to another party to whom also notice had to be given,- 

Held, that such notice was insufficient.

 Fradd v. Fernando (36 N. L. R. 132) applied. 

Held further, that notice must be given to all the parties in whose favour the judgment appealed against was given.

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

H. V. Perera, K.C. (with him N. E. Weerasooria, K.C., and C. J. Ranatunge), for the plaintiffs-respondents.-Under rule 5 of the Appellate Procedure (Privy Council) Order, 1921, service of notice has to be effected on the opposite party personally. Personal notice means the actual

handing over of a copy of the notice to the party required to be noticed- Piyadasa v. Hewavitarane 1, Gooneratne v. The Bank of Chettinad 2, Fradd v. Fernando.3

 N. K. Choksy (with him Miss Mehta and M. Ratnam), for the petitioners, defendants-appellants.-A despatch of a copy of the notice by registered post is sufficient-Joseph v. Sockalingam Chetty 4 There can be no doubt that the notice was duly served on the first plaintiff. There is no affidavit from her denying receipt of notice. As regards the second plaintiff, there was no need to serve any notice at all on him. He was joined merely as the husband of the first plaintiff, and is not a necessary party-Gaintota Nona v. Manuel 5. The words " opposite party " in rule 2 of the schedule to Appeals (Privy Council) Ordinance, Cap. 85, contemplate a party who would be prejudicially affected by the appeal. The meaning of " neces­sary party " is considered in Official Trustee of Bengal v. Benode Behari Ghose Mal6 Ibrahim v. Beebee et al. 7 Fernando v. Fernando. 8 

A definition of personal service as in section 59 of the Civil Procedure Code does not appear in Rule 5A of the Appellate Procedure (Privy Council) Order, 1921.  

H. V. Perera, K.C., in reply.-Joseph v. Sockalinga

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