Cooray, P.A. V. Fernando, H.J.G.

1953 Present : Swan J.

P. A. COORAY, Applicant, and H. J. G. FERNANDO, Respondent

Election Petition No. 6 of 1952, Kalutara

Election Petition-Presentation of petition-Failure to serve notice of it within prescribed time-Fatal defect-Modes of service of notice-Ceylon (Parliamentary Elections) Order in Council, 1946, Schedule 3, Rules 10, 15, 86 (2).

Where notice of the presentation of an election petition was sent by registered post to the successful candidate but the registered packets were not actually delivered to him until after the time limit of ten days prescribed by Rule 15 of Schedule 3 of the Parliamentary Elections Order in Council had elapsed-
Held, that when an election petition is presented the petitioner should serve notice of it on the respondent within the prescribed time. Failure to do so is a fatal defect. The fact that the respondent had knowledge of the presentation of the petition does not amount to notice and does not dispense with the requirement as to service of notice.

As to the mode of service, leaving copies of the notice and petition with the Registrar is not sufficient. Rule 10 of Schedule 3 is not applicable to the service of notice of presentation of the petition. Further, the modes of service mentioned in Rule 15 are not exhaustive. For instance, even where under Rule 10 an agent has been appointed or an address given the petitioner would not be precluded from effecting service on the respondent personally by delivering the notice and copy to him by his own hand or that of an agent. He could also use the medium of the post but in that event the date of delivery would be the crucial factor.

THIS was a motion filed by the successful candidate praying that no further proceedings be had on an election petition presented against him.

H. V. Perera, Q.C., with H. W. Jayewardene and M. Rafeek, for the applicant.

R. A. Kannangara, with A. S. Vanigasooriyar, for the respondent.

Cur. adv. vult.

February 18, 1953. SWAN J.-

The applicant is the successful candidate in the Kalutara Election. The respondent alleges that he was a voter. The other candidates were Upali Batuwantudawe, A. P. de Zoysa and Cholmondeley Goonewardene. The election was held on 24.5.52 and the applicant was declared duly elected ; and the result of the election was published in the Government Gazette on 28.5.52.

On 16.6.52 the respondent filed an election petition praying for a declaration that the applicant was not duly elected or returned, and that the election was void on the grounds and for the reasons set out in the petition. Security was deposited on 18.6.52 and the receipt filed with the Registrar the following day. On 20.6.52 the respondent applied to this Court to have notice of the presentation of the petition served on the applicant through the Fiscal. The motion was duly allowed, and on the same day the Registrar forwarded the notice to the Deputy Fiscal, Kalutara, for service and immediate report. On 26.6.52 the Deputy Fiscal, Kalutara, reported that his officer made attempts on 21st, 23rd and 25th June to serve the notice on the applicant but that he was not to be found. It may be mentioned here that the address of the applicant as given in the notice en-trusted to the Fiscal for service is " Galle Road, Katukurunda, Kalutara " which is the same address given by the applicant himself in the present application.

On 20.6.52 the respondent had also left with the Registrar a copy of the notice of the presentation of the petition. I refer to this because it was contended before my brother Pulle, and again before me at this inquiry, that this was sufficient service on the applicant of the notice of presentation. I shall deal with this point later.

On 20.6.52 the respondent also posted under two separate covers two copies of the petition he had filed and two copies of notice of the presentation of the petition. They were sent by regi

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