Palaniappa Chettiar Et Al. V. Mercantile Bank

1942 Present: Howard C.J. and Hearne J.

PALANIAPPA CHETTIAR et al. v. MERCANTILE BANK.

113-D. C. (Inty.) Colombo, 49,541.

Appeal-Application for typewritten copies-Failure to comply with Rules Application made to Secretary of District Court-Regularity-Matters not fundamental-Appeal does not abate-Civil Appellate Rules 2 (1) and 4 (1938).

Where an application for typewritten copies made by an appellant failed to comply with rule 2 (1) of the Civil Appellate Rules. 1933, inasmuch as (1) it was addressed to the Secretary of the District Court and not to the District Judge, (2) it did not state therein whether copies of the whole or portions only and, if so, what portions of the record were necessary for the decision of the appeal, (3) it did not state the value of the subject-matter and nature of the action or proceedings in which the appeal was preferred.

Held, with regard to the first ground, that an application made to th2 Secretary may be deemed an application to the District Judge.

Where the application was made the subject of a Journal entry it must be regarded as having been accepted by the District Judge, although the entry did not bear the initials of the Judge.

Held, further, that failure to comply with matters specified in grounds 2 and 3, which are not fundamental does not amount to a substantial default, which would abate the appeal.

THIS was an application to revise an order of the District Judge of Colombo.

The plaintiffs filed a petition of appeal on September 8, 1941, against an order of the District Judge made the same day allowing the defendants to execute a decree of the Supreme Court dated May 10, 1938.

On November 28, 1941, on a motion made by the defendants the District Court declared that the appeal of the plaintiffs had abated owing to their failure to comply with the requirements of the Civil Appellate Rules in the application for typewritten copies.

H. V. Perera, K.C. (with him S. Nadesan and Walter Jayawardene), for the petitioners in the application and the appellants in the appeal The question is one of the interpretation or rule 4 (a) of the Civil Appellate Rules, 1938 (Vol. 3 of 1940 Supplementary Legislation, p. 6). The appeal cannot be said to have abated. The application for typewritten copies, under rule 2, was originally accepted by the District Judge. The respondents later took the objection that the application should have stated whether the whole or a portion only of the record was required for the decision of the appeal and that the value of the subject-matter of the action should have been stated. One has to distinguish the main, substantial act from the incidental requirements. The act of making the application and the act of stating certain things in that application are to be distinguished. The time within which and the form in which the application should be made are, no doubt, important and essential for the making of the application. The statement in such application

whether copies of the whole or portions only of the record are necessary is only an incidental matter and can be subsequently remedied. See the meaning of "default" in the judgment of Darling J. in O'Connor and Ould v. Ralston [(1920)3 K. B. 451 at 456]'. That dictum has been followed in Murugappah Chettiar et al v. Ramanathan Chettiar[(1937) 39 N. L. R. 231.]' and Subramaniampillai v. Wickremasekere et al.[ (1941) 42 N. L. R.)573]

Another objection was taken in the District Court, that the application for typewritten copies was addressed to the Secretary of the District Court and not to the District Judge. For the purpose of - the Civil Appellate Rules, the District Judge acts only as a ministerial officer and can, therefore, appoint an agent.

The Civil Appellate Rules were made to regulate the mode of prosecuting appeals. They cannot in any way take away the fundamental right of appeal provided by the s

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