1960 Present : K. D. de Silva, J., and T. S. Fernando, J.

A. S. ABDUL CADER, Petitioner, and I. L. M. SHERIFF,
Respondent

S. C. 543-Application for Conditional leave to appeal to the Privy
Council in S. C. 539 of 1957/D. C. Gampaha 797/4947

Privy Council-Application for conditional leave to appeal-Notice to opposite party- Meaning of " opposite party "-Invalidity of notice given by a Proctor without due authority-Proof of notice sent by ordinary post-Appeals (Privy Council) Ordinance (Cap. 85), Schedule, Rule 2.

By Rule 2 of the Rules in the Schedule to the Appeals (Privy Council) Ordinance :-

" 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 where the petitioner is a defendant in a partition action, any co-defendant who will be prejudicially affected by the success of the proposed appeal is an " opposite party " within the meaning of Rule 2 and must therefore be given notice of the intended application for leave to appeal.

Sobitha Unnanse v. Piyaratna Unnanse (60 N. L. R. 189), doubted.

Held further, (i) that a notice of intended application given by a Proctor when the proxy does not empower him to act for his client for the purpose of taking steps to appeal to the Privy Council and where there is no other authority from his client is an invalid notice.

(ii) that where a notice of intended application is sent by ordinary post the best proof of such despatch is by the production of a receipt from the Post Office.

APPLICATION for conditional leave to appeal to the Privy Council.

M. T. M. Sivardeen, for the 19th defendant-appellant, petitioner.

E. B. Wikramanayake, Q.C., with M. Markhani, for the plaintiff-respondent and the 2nd, 3rd (3a), 11th and 12th defendants-respondents.

Cur. adv. vult.

October 21, 1960. T. S. FERNANDO, J.-

This application by the 19th defendant for conditional leave to appeal to Her Majesty in Council is opposed by the plaintiff and the 2nd, 3(a)rd, 11th and 12th defendants on the grounds specified below :-

(1) On behalf of the plaintiff it is urged that notice of the intended application required by Rule 2 of the Rules in the Schedule to the Appeals (Privy Council) Ordinance (Cap. 85) to be given within fourteen days of the judgment appealed from has been given by a proctor who had not at the time of doing so any authority from the 19th defendant to give such notice ;

and (2) on behalf of the 2nd, 3(a)rd, 11th and 12th defendants it is urged that there has been a total failure to give them notice of the intended application.

In support of the first objection, the plaintiff has tendered the notice served on him by registered post together with the envelope in which this notice was enclosed. These show that the notice has been given by proctor J. F. Jayatilake who describes himself therein as proctor for the 19th defendant-appellant. An examination of the only proxy granted by the 19th defendant to Mr. Jayatilake does not show that any authority was granted thereby to the latter to act for the former in respect of or in connection with an appeal to Her Majesty in Council from an order of the Supreme Court. Mr. Sivardeen does not contend that the proxy in question grants the required authority, but relies on an averment of his client in an affidavit presented to this Court nearly a year after the

date of the judgment sought to be appealed against that proctor Jayatilake had his client's oral authority to send the notice of intended application. It is significant that this averment is not supported by an affidavit of proctor Jayatilake himself stating that he had such oral authority. In the case of Kandaswamy v. Kandavanam [1 (1956) 58 N. L. R. 413. ], it has been held that a not