Sopaya Peiris V. Wilson De Silva

1957 Present : Basnayake, C.J., and L. W. de Silva, A.J.

SOPAYA PEIRIS and another, Appellants, and
WILSON DE SILVA, Respondent

S. C. 137-D. C. Kalutara, 18,807

Appeal-Application for typewritten copies of record-Requirement that it should be accompanied by the prescribed fees-Impossibility of performance-Abatement of appeal-Procedure for complying with Civil Appellate Rulett 1938, Rules 2 (1) and 4.

Although Rule 2 (1) of the Civil Appellate Rules 1938 requires, when an appeal is preferred, that the application for typewritten copies of the record should be accompanied by the fees prescribed in the Schedule, the administrative machinery of the Courts renders it impossible for the appellant to comply with it. In the circumstances the maxim Lex non cogit ad impossi-bilia would be applicable and the appeal will not be deemed to have abated under Rule 4.

Obiter : In the present state of the financial regulations, the procedure which an appellant should follow in complying with the Civil Appellate Rules should be as follows :-

(a) Where the Court is situated in a place in which there is a Kachcheri or Treasury Office, the prescribed fees should be deposited in the Kachcheri or Treasury Office and the receipt tendered along with the application under Rule 2 (1) for typewritten copies.

(b) Where the Court is situated in a place in which there is no Kachcheri or Treasury Office the applicant should, along with the application for typewritten copies, tender a money order or postal order for the amount of the prescribed fees in favour of the Government Agent of the revenue district in which the Court is situated. The proper officer of the Court should then transmit the money order or postal order to the nearest Kachcheri and obtain a receipt.

APPEAL from a judgment of the District Court, Kalutara.

H. V. Perera, Q.C., with Neville Wijeratne, for Respondent-Appellants.

Sir Lalita Rajapakse, Q.C., with V. C. Gunatilaka, for Substituted-Plaintiff Petitioner, Respondent.

Cur. adv. vult.

September 30, 1957. BASNAYAKE, C.J.-

A preliminary objection to the hearing of this appeal was taken by learned counsel for the respondent on the ground that the appeal has abated by operation of Rule 4 of the Civil Appellate Rules 1938, as the application of the appellants for typewritten copies of the record was not accompanied by the prescribed fees as required by Rule 2 (1) 6f those rules.

The relevant facts shortly are as follows : The appellants preferred their petition of appeal on 20th September 1955 and on the same day tendered an application for typewritten copies of the record and moved for an order to deposit the necessary fees. On that application the District Judge made order " Issue P. I. V. for Rs. 12 ".

On 26.9.55 the Proctors for the appellants filed Kachcheri Receipt for Rs. 12, the amount of the prescribed fees for the typewritten copies.

Learned counsel for the respondent submits that the procedure adopted by the appellants does not satisfy the requirement of Rule 2 (1) that the application for typewritten copies shall be accompanied by the fees prescribed in the Schedule. He submits that the fees should be tendered along with the application to the Judge or Commissioner of Requests and that thereafter the prescribed fees should be paid in cash to the Secretary or Chief Clerk, as the case may be, and a receipt obtained for the' payment in the prescribed form as required by Rule 2 (3).

In view of the fact that the same objection was taken in a number of other appeals we caused the Registrar of this Court to ascertain by circular letter from the different courts the practice in each of them in regard to applications for typewritten copies of the record. The replies show-

(a) that in no court does the applicant tender the prescribed fees along with his application to the District Judge or Commissioner of Requests,

(b) that in no court situa

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