1956 Present: Weerasooriya, J., and Sansoni, J.

KANDASWAMY et al., Petitioners, and KANDAVANAM et al.,
Respondents

S. C. 586-Application for Conditional Leave, to appeal to the Privy
Council in S.C. 293, D.C. Point Pedro 3,955.

Privy Council-Application for conditional leave to appeal-Notice to opposite party-o Power of Proctor to give such notice without client's authority-The Appeals (Privy Council) Ordinance (Cap. 85), Schedule, Rule 2,

Where a Proctor, whose proxy did not empower him to act for his client for the purpose of takings steps to appeal to the Privy Council, purported, without any other authority from his client, to give notice to the opposite party in terms of Rule 2 of the Schedule to the Appeals (Privy Council) Ordinance-

Held, that the notice was invalid. Nor could such notice be made valid by any subsequent grant of authority after the expiry of the period of fourteen days prescribed under the Rule.

APPLICATION for conditional leave to appeal to the Privy Council.

S. J. V. Chelvanayakam, Q.C., with A. Nagendra, for the plaintiffs-petitioners.

C. Thiagalingam, Q.C., with V. Arulambalam and C. Chellappah, for the 1st and 2nd defendants-respondents.

Cur. adv. vult.

May 30, 1956. WEERASOORIYA, J.-

This is a joint application by the plaintiffs and the 3rd and 4th defendants for conditional leave to appeal to Her Majesty in Council against the judgment of this Court which is reported in 57 New Law Reports, page 241. The facts of the case are fully set out in that judgment.

The respondents to the present application are the 1st and 2nd defendants, and several objections were taken on their behalf by Mr. Thiagalingam against the granting of the application.

One of these objections was that no notice of their intended application for leave to appeal was given by the applicants in terms of Rule 2 of the rules in the Schedule to The Appeals (Privy Council) Ordinance

(Cap. 85). On the 5th November, 1955, which is within the period of fourteen days allowed for such notice under Rule 2, a registered letter was posted to the 1st and 2nd defendants (who are husband and wife) giving them notice of the intended application. This letter is signed by Proctor Subramaniam as proctor for the plaintiffs and by Proctors Kandiah and Mylvaganam as proctors for the 3rd and 4th defendants. While proxies in favour of these proctors had been granted by the plaintiffs and the 3rd and 4th defendants respectively for the purpose of the action, it was conceded by Mr. Chelvanayakam who appeared for them at the hearing of this application that the authority granted by those proxies did not empower the proctors to act for them for the purpose of the requisite notice under Rule 2. In the original application and supporting affidavit filed by the applicants it was not stated that the proctors, in purporting to give on their behalf the notice in the registered letter referred to, acted on any authority other than the authority derived from the proxies already granted in their favour.

After the 1st and 2nd defendants had filed a statement of objections, which included the particular objection under consideration, a joint counter-affidavit dated the 5th February, 1956, was filed by the applicants in which it is stated that they had " duly authorised " their proctors to send the notice dated the 5th November, 1955. This vague statement leaves it open to conjecture whether the applicants relied on such authority as was conferred in the proxies previously granted by them to the proctors who signed that notice, or whether an express authority to. send the notice had been given by them to the proctors. No affidavit has been filed by the proctors themselves as to the nature of the authority under which they purported to act in giving that notice. In the circumstances I hold that the applicants have not made out to the satisfaction of this Court that at the time when