University Of Ceylon V. Fernando

957 Present : Basnayake, C.J., Pulle, J., K. D. de Silva, J.,
Sansoni, J., and L. W. de Silva, A.J.

THE UNIVERSITY OF CEYLON, Petitioner, and E. F. W. FERNANDO,
Respondent

S. C. 568-In the matter of an Application for Conditional Leave to
Appeal to the Privy Council in S. C. 559 D. C. Colombo 28,909

Privy Council-Application for conditional leave to appeal -Notice thereof to opposite: party-Personal service not necessary--Appeals (Privy Council) Ordinance (Cap. 85), Schedule, Rule 2-Appellate Procedure (Privy Council) Order, 1921, Rules 5, 5A, 6.

Rule 2 of the Schedule to the Appeals (Privy Council) Ordinance reads as follows :-

" Application to the court for leave to appeal shall be made by petition, within thirty days from the date of the judgment to be appealed from, and the applicant shall, within fourteen days from the date of such judgment, give the opposite party notice of such intended application. "

Held, that the Rule does not require personal service of the notice required to be given thereunder and that Rules 5 and 5A of the Appellate Procedure (Privy Council) Order, 1921, have no application to it. Accordingly, where the post is used as a medium of transmitting the prescribed notice, the applicant is required to do nothing more than send, in due time, a properly addressed prepaid, letter containing the name and address of the opposite party.

Fradd v. Fernando (1934) 36 N. L. R. 132, overruled.

APPLICATION for conditional leave to appeal to the Privy Council. The hearing of this application was referred to a Bench of five Judges under Section 51 (1) of the Courts Ordinance.

H. W. Jayewardene, Q.C., with John de Saram, for Applicant-Appellant.

Colvin R. de Silva, with Walter Jayawardena, K. Shinya and M, Hussein, for Respondent-Respondent.

Cur. adv. vult.

July 31, 1957. BASNAYAKE, C.J.-

This is an application by the University of Ceylon (hereinafter referred! to as the University) for leave to appeal to the Privy Council from the Judgment of this Court delivered on 28th November 1956.

Rule 2 of the Rules in the Schedule (hereinafter referred to as Scheduled Rule 2) to the Appeals (Privy Council) Ordinance requires an applicant for leave to appeal to the Privy Council-

(a) to give, within fourteen days from the date of the judgment to be-  appealed from, the opposite party notice of his intention to-apply for leave, and

(b) make an application to this Court by petition within thirty days  from the date of such judgment.

The present application has been made within the prescribed time ; but the opposite party (hereinafter referred to as the respondent) opposes it on the ground that the University has not given the prescribed notice. It is not disputed that failure to give the prescribed notice is fatal to this application. This Court has all along taken the view that the provision of Scheduled Rule 2 as to notice is imperative and that compliance therewith is a condition precedent to the reception of an application for leave to appeal.

Learned counsel on behalf of the University claims that it has in the instant case complied with the requirements of Scheduled Rule 2 by doing the following acts :-

(a) By sending by registered post on 6th December 1956 two notices directed to the respondent, one signed by the Vice-Chancellor and Registrar of the University and sealed with its Seal, and the other signed by the Proctor for the University, to each of the following places :-

(i) No. 82 Barnes Place, Colombo, the admitted residence of the respondent, and

(ii) St. Peter's College, where at the material date the respondent was a teacher.

(b) By sending by registered post on 6th December 1956 to the address

for service given in the Proxy of the Proctor who represented the respondent both at the trial and in the appeal to this Court, two notices in the same terms and signed by the same persons who signed the notices sent to th

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