Municipal Council Colombo V. Letchiman Chettiar

1943 Present : Soertsz S.P.J. and Hearne J.

MUNICIPAL COUNCIL, COLOMBO, Appellant,
 and LETCHIMAN CHETTIAR, Respondent.

APPLICATION FOR CONDITIONAL LEAVE TO APPEAL TO PRIVY
COUNCIL IN 69 D. C. (INT.) , COLOMBO, 3,092.

Privy Council-Conditional leave to appeal-Notice of application-Computation of period-Exclusion of vacation-Supreme Court-Vacations Ordinance, s. 8.

Where, on an application for leave to appeal to the Privy Council, the applicant gives notice of his intended application to the opposite party without the intervention of the Supreme Court, he is not entitled to have the days of a vacation excluded in the reckoning of the appointed period.

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

H. V. Perera, K.C, (with him N. Kumarasingham), for the respondent.- Notice of the intended application was not given to the respondent within the time-limit of 14 days fixed by rule 2 of the schedule of the Privy Council Appeals Ordinance (Cap. 85). It was in fact served on us 21 days after the date of the judgment of the Supreme Court. The Supreme Court vacation cannot be excluded for the purpose of computing the time-limit. Section 8 of the Supreme Court Vacations Ordinance (Cap. 10) permits exclusion only in the case of an act to be done or proceeding to be taken in the Supreme Court. In the present instance notice was served on us by the applicant himself without the assistance of Court. Three ways of giving notice are contemplated by order 5 (Vol. I Subsidiary Legislation, p. 468), and inasmuch as the applicant chose to serve notice himself and not through Court, he cannot invoke the aid of the Vacations Ordinance, and computation of time will have to conform to section 8 of the Interpretation Ordinance (Cap. 2). See also Tarrant et al v. Marikar1[ (1934) 2 C. L. W. 373]. As regards the judgment in Palaniappa Chetty v. Mercantile Bank of India et al. 2[ (1942) 43 N. L. R. 352] the statement that the vacation must be excluded in calculating the 14 days' notice is obiter.

There is no right of appeal to the Privy Council in the present case. This is not a civil suit or action such as is contemplated in section 3 of the Privy Council Appeals Ordinance. This is a case under the Land Acquisition Ordinance under which the District Court exercises a special jurisdiction. See Soertsz v. Colombo Municipal Council[ (1930) 32 N. L. R. 62]; R. M. A. R. A. R. R. M. v. The Commissioner of Income Tax[ (1935) 37 N. L. R. 447]; Settlement Officer v. Vander Poorten et al.[(1942) 43 N. L. R. 436.]; Kanagasunderam v. Podi Hamine[(1940) 42 N. L. R. 97.]; Muttukrishna v. Hulugalle[ (1942) 13 N. L. R. 421.].

E. B. Wikremanayake (with him N. M. de Silva) for -the applicant.- The statement in Palaniappa Chetty v. Mercantile Bank of India et al. (supra) that in calculating whether the respondent is given 14 days' notice

the days which fall within the period of a Supreme Court vacation must be excluded is not obiter. That ruling was given despite the fact that the judgment in Hayley and Kenny v. Zainudeen [(1923) 25 N. L. R. 312.]was cited in the course of the argument in that case.

The meaning of the term " action" in section 3 of the Privy Council Appeals Ordinance must be decided by reference to section 6 of the Civil Procedure Code. The present case may be deemed to be an action. It cannot be said that under the Land Acquisition Ordinance there is appointed any special tribunal. That Ordinance recognises the existence of the District Court as a tribunal and makes use of its existence. The jurisdiction exercised by the District Court under the Land Acquisition Ordinance is derived from section 62 of the Courts Ordinance.

H. V. Perera, K.C., in reply.-The distinction between notice through Court and notice outside Court was not considered in Palaniappa Chetty v. Mercantile Bank of India (supra). The decision in Ha

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