1943 Present: Keuneman and Jayetileke JJ.

HUSSAIN,

Appellant, and ABDEEN, Respondent.

APPLICATION FOR CONDITIONAL LEAVE TO APPEAL TO THE
PRIVY COUNCIL
.
126-D. C. Colombo, 12,034.

Privy Council-Application for conditional leave-Notice to respondent- Computation of time-Supreme Court Vacation Ordinance, s. 8.

In the computation of time within which notice of application for conditional leave to appeal to the Privy Council should be given to the respondent, Sundays and public holidays should not be excluded.

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

N. Nadarajah, K.C. (with with V. A. Kandiah), for defendant, appellant.

C. Thiagalingam for plaintiff, respondent.

Cur. adv. vult.

September 16, 1943. KEUNEMAN J.-

Objection is taken by the respondent to the grant of conditional leave on the ground that the appellant has failed to give the respondent notice of this application within fourteen days from the date of the judgment. The judgment of the Supreme Court was delivered on July 29, 1943, and notice was served on the respondent on August 27, 1943. From this period the Court vacation has to be excluded, (see Pathmanathan v. The Imperial Bank of India[39 N L. R. 103.] followed by Palaniappa Chetty v. Mercantile Bank 'of India[ 43 N. L. R. 352.]). But even after excluding the vacation, more than 14 days elapsed between the judgment and the service of the notice of application. The notice was in fact served through the Supreme Court.

Mr. Nadarajah contends that he has complied with the necessary formalities on two grounds. First, he points out that the period includes one public holiday, July 31, and three Sundays, namely, August 1, 8, and 22. He claims that those days also should be excluded. If this is correct, the service of the notice of application was in time.

Mr. Nadarajah contend that these days must be regarded as " days included in a vacation ", within the meaning of section 8 of the Supreme Court Vacations Ordinance (Chapter 10). I cannot accept this contention.. No doubt the word " public holiday " has been denned under section 2, but this appears to be only for the purpose of explaining the use of the word in section 4 (1), and section 9, and in .each of those sections a sharp distinction is drawn between " vacation " and " public holiday ". There is no reference to Sundays in this Ordinance.

Section 8 lays down that where " any limited time not exceeding one month is appointed or allowed for the doing of any act or the taking of any proceeding in the Supreme Court, no days included in a vacation shall be reckoned in the computation of such time unless the Court otherwise directs ".

The Holidays Ordinance (Chapter 135) enacts in section 4 that the several days mentioned in the second schedule shall in addition to Sundays, be dies non, and shall be kept, (except as provided in the Ordinance) as holidays in Ceylon. There is no section in this Ordinance such as section 8 of the Supreme Court Vacation Ordinance dealing with the computation of the time within which an act has to be done or a proceeding taken.

We are accordingly thrown back upon the Interpretation Ordinance (Chapter 2;, section 8. In the computation of time, within which an act is to be done or a proceeding taken, it is only if the limited period does not exceed 6 days, that intervening Sundays and public holidays are to be excluded. Otherwise if the last day of the limited period falls on a Sunday or public holiday, the act will be regarded as properly done or the proceeding properly taken on the next day thereafter.

In the present case section 8 of the Interpretation Ordinance, has no application, and Mr. Nadarajah's argument on this point fails.

The next point urged by Mr. Nadarajah is based upon section 5 of the Order of the Supreme Court made under chapter 85, which is as follows : -

" A party who is required to serve ,any notice may him