1943 Present: de Kretser J.

COSTA, Petitioner, and JAYAWARDENE, Respondent.

IN THE MATTER OF THE BY-ELECTION FOR THE KELANIYA
ELECTORAL DISTRICT.

Election petition-Security by deposit of cash-Security to be made in name of petitioner-Deposit of money with the Deputy Financial Secretary- Election (State Council) Petition Rules, 1931, Rule 12 (1).

Under Rule 12 (1) deposit of money by way of security for payment of costs must be made in the name of the petitioner even when it is made by some other person. It must be stated that the security was intended to cover the payment of all costs, charges and expenses as may become payable by the petitioner in the election petition.

Deposit of money with the Deputy Financial Secretary and a receipt from him would be sufficient.

THIS was an election petition in which the respondent filed objections to the security alleged to have been deposited on behalf of the petitioner.

H. V. Perera, K.C. (with him M. T. de S. Amerasekere, K.C., N. K. Choksy, C. S. Barr Kumarakulasingham, V. F. Guneratne, and H. W. Jayewardene), for respondent.

A. R. H. Canekeratne, K.C. (with him P. Navaratnarajah), for petitioner.

Cur. adv. vult.

June 18, 1943. DE KRETSER J.-

The respondent filed objections to the security alleged to have been deposited on behalf of the petitioners. Of the five objections taken, I intimated during the hearing that I was disposed to entertain only one of them, but Counsel pressed me on the other points too and earnestly desired that I should express an opinion on those as well.

Rule 12 (1) requires that at the time of the presentation of the petition or within three days thereof " Security for the payment of all costs, charges and expenses that may become payable by the petitioner shall be given on behalf of the petitioner ".

Rule 12 (3) provides that if the security is not given by the petitioner the Judge might direct the dismissal of the petition.

The respondent contended that security should be given by the petitioner himself or at least in his name, while the petitioner's position was that because security was to be given " on behalf of the petitioner " therefore the security should be given not by the petitioner but by some other person on his behalf.

Counsel referred me to the case of Pease v. Norwood 1[L. R., 4 C. P. 235, at p. 249.] where the opinion was expressed that security must be given by persons other than the petitioners themselves. That was a case dealing with a recognisance and the remarks made in the case applied only to that form of security. Rule 12 (3) of our rules found no place in the English law, and some meaning must be given to the provision, which implies that security must be given by the petitioner. Besides, the English decision went not merely on the words " on behalf of " but on other provisions in the Act In Ceylon in the case of Silva v. Karaliadde[33 N. L. R.85 ], Drieberg J. held that where security was given by recognisance the bond must be signed by the petitioner as well as by the sureties. This view was endorsed by a Divisional Bench in the case of Mendis v. Jayasuriya[33 N. L. R. 121]. " On behalf of the petitioner " does not necessarily mean that security should be given by some other person, for " on behalf of" the petitioner means nothing more than on his part or on his side. A petitioner making a deposit himself would be quite correct in saying-" I make this deposit as security on my behalf ". Where the sentence is differently turned the language would alter but the meaning would be the same. I cannot see any reason for the security not being deposited by the petitioner himself. It is the petitioner who, if unsuccessful, will be condemned to pay costs, and unless the security is identified as having been made available for such costs the deposit cannot be drawn upon. In my opinion, therefore, the deposit must be made in the name of the petitioner even