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WANIGASEKERS et al. v. LOUISZ et al.
NLR44V37
1942 Present: Howard C.J. and Soertsz J.
WANIGASEKERE et al v. LOUISZ et al
369 and 110-D. C. Matara, 11,892.
Public holiday-Dies non-Service of notice of security-Public Holidays Ordinance
(Cap. 135) s. 4-Civil Procedure Code, s. 365-Appointment of next
friend-Irregularity is no ground for dismissal of action.
Service of notice of security on the respondent to en appeal may be made on a
public holiday.
Where an application for the appointment of a next friend to a minor plaintiff
was made ex-parte and was not accompanied by a copy of the plaint and where the
defendants made no objection to the acceptance, of the plaint on the ground of
any irregularity in the appointment of the next friend,-
Held, that the irregularity was no ground for the dismissal of the action.
Held, further, that application by the minor in the course of the action to
proceed with it in his own name under section 487 of the Civil Procedure Code
must be taken to have cured the irregularity in the appointment of the next
friend.
APPEAL from, a judgment of the District Judge of Matara.
L. A. Rajapakse, for the respondents, took preliminary objection.- The appeal is
not properly constituted. The service of notice of tender of security on the 3rd defendant, respondent was not made " forthwith '" as required by section 756
(1) of the Civil Procedure Code. It was served on May 12, 1941, but that day was
a public holiday, and any process served on that day would be void and invalid.
The question is whether dies non are limited to the days mentioned in section
365 of the Civil Procedure Code or whether they include all public holidays
referred to in section 4 of the Holidays Ordinance (Cap. 135). It has been held
in Georgina v. Ensohamy 1[ (1903) 7 N. L. R. 129.] that every public holiday is a dies non and that
execution of civil process on such a day would not be valid. Vide also
Appacutty v. Aysa Vmma1[(1890) 9
S. C. C. 121] and section 8 (4) of the Interpretation Ordinance (Cap.
2). The allusion to the meaning of dies non in Kulantaivelpillai v. Marikar[
(1918) 20 N L. R 471.] was
merely obiter.
We took this objection before the District Judge, but it was not upheld. Hence
the present interlocutory appeal.
The preliminary objection was overruled.
H. V. Perera, K.C. (with him, N. E. Weerasooria, K.C., and F. C. W. Van Geyzel),
for the plaintiffs, appellants in No. 369 and the plaintiffs, respondents in No.
110.-The plaintiffs, who are three brothers, sued the defendants for declaration
of title to a certain land, each to a 1/3 share-The District Judge, although he
holds in our favour in regard to legal title and prescription, has dismissed the
whole action on the sole ground that the third plaintiff, who was a minor at the
date of the institution of the action, was not properly before Court. He did so
on the authority of Fernando v. Fernando[ (1892) 2 C. L. Rep. 82.], where it was held that an application
for the appointment of a next friend must be accompanied by the plaint of the
action intended to be brought. There is no statutory rule that a person seeking
appointment as next friend of a minor should accompany his application with the
plaint to be filed in the action. Even if there was an irregularity the action
should not have been summarily dismissed- Sinnapillai et al. v. Sinnatangam[(1916)
2 C. W. R. 73.]
Chitaley and Rao's Commentary on the Indian Civil Procedure Code (2nd ed.), pp.
2288, 2297. Further the election by the minor, when he attained majority pending
the action, to proceed with the case cures all irregularity.
L. A. Rajapakse, for the defendants, respondents in No. 369 and the defendants,
appellants in No. 110.-Fernando v. Fernando (supra) was followed in Mohamado
Umma v. Mohideen[(1892) 1 S . C. R. 302.]. Not only was no plaint submitted along with the petition for
appointment as next friend, but also the imperative provisions of section 48
