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SUPREME COURT OF CEYLON
Basnayake, CJ, Gunasekara, J, T. S. Fernando, J
NANAYAKKARA and another – Appellant
Versus
PAIVA – Respondent
S. C. 48/60-D. G. Colombo, 22734/S
For the Appellants/Petitioners: Nimal Senanayake, Desmond Fernando, S. Wickremasinghe
For the Respondents: T. Arulananthan
Time limits for legal procedures must exclude Sundays and public holidays when computing the period for defendants to respond to summons under the Civil Procedure Code.
Headnote:(A) Civil Procedure Code - Sections 703, 704, 706 - Interpretation Ordinance - Sections 2, 8(3), 11 - Computation of time in legal procedures - In liquid claims, when served a summons requiring defendants to appear in seven days, the days for computation must exclude Sundays and public holidays, as per Interpretation Ordinance provisions. (Para 9)
(B) Appeal - Time limits for legal actions - Courts must interpret summons in accordance with established rules for time computation, excluding the day of service for clarity regarding appearance times. (Paras 11, 13, 15)
Facts of the case:
This case discusses whether the defendants’ application for leave to appear and defend was made within the designated timeframe set out in the Civil Procedure Code, particularly regarding the computational rules of time in the issuance of legal summons.
Findings of Court:
The court agreed with the appellants, finding that the defendants applied within time, thus allowing their appeal and remanding for further proceedings.
Issues: The main issue focused on the interpretation of time limits set in the summons, specifically whether inclusivity or exclusivity of the service day was to be applied.
Ratio Decidendi: The court concluded that the interpretation of time should follow the established legal standards which support excluding non-business days from such computations.
Result: Appeal allowed.
Where, in an action on a liquid claim under Chapter LIII of the Civil Procedure Code , the summons in Form No. 19 required the defendants to cause an appearance to be entered for them within seven days from the service thereof, inclusive of the day of such service-
Held (BASNAYAKE, C. J., dissenting), that, in computing the period within which the defendants were required to make an application for leave to appear and defend the action, Sundays and public holidays should be excluded, in terms of section 11, read with section 8 (3), of the Interpretation Ordinance .
APPEAL from an order of the District Court, Colombo.
Nimal Senanayake, with Desmond Fernando and S. Wickremasinghe, for 1st and 2nd Defendants-Appellants.
T. Arulananthan, for Plaintiff-Respondent.
Cur. adv. vult.
December 20, 1961. BASNAYAKE,
C. J.-
This appeal comes for hearing before a bench composed of
three Judges because the bench composed of two Judges before which it came up
for hearing in the ordinary course was unable to agree as to the decree that
should be passed by the Court.
The question for decision is whether, in computing the time
prescribed in a summons in Form No. 19 within which the defendant is required to
obtain leave from the Court to appear and defend the action on a liquid claim
under Chapter LIII of the Civil Procedure Code , Sundays and Public Holidays
should be excluded.
The relevant portion of the summons in the instant case
which, as required by section 703, is in Form 19 of the Forms in the Schedule to
the Civil Procedure Code reads :
"You are hereby summoned to obtain leave from the Court
within seven days from the service hereof, inclusive of the day of such service
to appear and defend the action, within such time to cause an appearance to be
entered for you, "
The summons
was served on 1st December 1959. On 8th December the proctor of the defendants
appears to have tendered to the Court office a proxy and an affidavit signed by
them together with a motion dated the same date to the following effect:-
"I file my appointment from the defendants together with
their affidavit and for the reason stated therein move that the defendants'
application be fixed for inquiry. "
On the next day-9th December-when the matter came up in open
Court, the learned District Judge made the following order :- " Mr. T. G. de
Silva to support the application as it appears to me Defendants are out of time.
" No application for leave to appear and defend was filed along with the
affidavit or even later. Section 706 requires that there should be an
application by the defendant for leave to appear and defend the action. It
reads-
" The court shall, upon application by the defendant, give
leave to appear and to defend the action upon the defendant paying into court
the sum mentioned in the summons, or upon affidavits satisfactory to the court,
which disclose a defence or such facts as would make it incumbent on the holder
to prove consideration, or such other facts as the court may deem sufficient to
support the application and on such terms as to security, framing, and recording
issues, or otherwise, as the court thinks fit. "
The learned Judge appears to have treated the affidavit as an
application. But even in the affidavit there is no prayer for leave to appear
and defend. The last sentence of it which contains a request for relief reads-"
We beg that the Court be pleased in view of the above facts to dismiss the
plaintiff's action with costs. "
Learned counsel relies on Section 8 (3) of the Interpretation
Ordinance for his submission that Sundays and Public Holidays are to be excluded
in the computation of the time prescribed in a summons in Form 19 of the
Schedule to the Civi
