1956 Present: H. N. G. Fernando, S., and T. S. Fernando, J

A. P. FERNANDO, Appellant, and C. T. ANTHONY,
Respondent

 S. C. 74- D. C. Gampaha, 4,165/L

Appeal-Abatement--Application for typewritten copies-Failure to furnish the necessary fees along with it-Fatal irregularity-Civil Appellate Rules, 193 8, Rules 2 (1) and 4-Payment into Court Order, 1939, Clause 1 (5).

The provision of Rule 2 (1) of the Civil Appellate Rules, 193$, that an application for typewritten copies "shall be accompanied by the fees prescribed in the schedule hereto " is an imperative, and not merely a directory, provision of law. Failure to comply with it is fatal to the reception of the appeal.

Under Clause 1 (5) of the Payment into Court Order, 1939, the date of the receipt given by an authorised Treasury officer is deemed to be the date of a payment into Court of any money required by any written law to be paid in connection with any action or proceeding.

APPEAL from a judgment of the District Court, Gampaha.

A. H. C. de Silva, Q. C., with N. U. Weerasekera, for the defendant-appellant.

Walter Jayawardene, with M. Samuqanathan, for the plaintiff. respondent.

Cur. adv. vult.

November 20, 1956. T. S. FERNANDO, J.-

A preliminary objection to the hearing of this appeal has been raised on the ground that the appeal has abated in terms of rule 4 of the Civil Appellate Rules, 1938, on the appellant failing to make application for typewritten copies of the record in accordance with the requirements of rule 2 (1) of the same Rules.

Rule 2 -(1) requires that an application for typewritten copies "shall be accompanied by the fees prescribed in the schedule hereto ". The application was made on 27th January 1956 at the time the petition of appeal was itself filed in court, but the fees prescribed were paid to the Treasury officer specially stationed at Gampaha only on 2nd March 1956. There was therefore a failure to comply with the requirements of rule 2 (1), and the question that now arises is whether this- provision of law embodied in the rule is an imperative or mandatory provision or one which is merely directory.

In dealing with the construction of enabling Acts of Parliament, it is stated in Craies on Statute Law, 5th ed., at page 242, that

"It being, then, well settled that the neglect of the requirements of an Act which prescribes how something is to be done will invalidate the thing being done, if the enactment is absolute, but not if it is merely directory, we have now to consider whether there is any general rule as to when an enactment is to be considered absolute and when merely directory

After adverting to a dictum of Grove J. to which I shall now refer, it is further stated that, except as to time, there is no general rule as to when enabling Acts are absolute and when directory. In the case of Barker v. Palmer [L. R (1881) 8 Q. B. D. 10], Grove J., in interpreting a certain rule of the County Court Rules, 1875, which re9uired a plaintiff to deliver the summons to the bailiff within a stated number of days, said that "in construing Acts of Parliament provisions which appear on the face of them obligatory; cannot, without strong reasons given, be held directory. The rule is that provisions with respect to time are always obligatory, unless a power of extending the time is given- to the Court ". It is - of interest in this connection to observe that, whereas in the Civil Appellate Rules of 1913 there was express provision (in rule 5)- enabling - the Court, where it app eared to the - Court to he reasonable, to allow an extension of time for an application to be made for typewritten copies, in the present Civil Appellate Rules which superseded the 1913 Rules the provision relating to extension - of time has been omitted. There is therefore a further

indication of the intention of the framers of the Rules as to the consequences of the failure to make the application in