Patel v Esmailji (Civil Appeal No. 326 of 1951) [1953] EACA 23 (1 January 1953)

APPELLATE CIVIL

Before WINDHAM, J.

PRANBHAI N. PATEL, Appellant

EBRAHAM ESMAILJI, Respondent

Civil Appeal No. 326 of 1951 (Mombasa Registry)

Increase of Rent (Restriction) (Enforcement of Determinations and Orders of the Board and Appeals from the Board's Determinations and Orders to the Supreme Court) Rules of Court, 1950—Rule 6—Date of Order for purposes of appeal defined.

The appellant appealed from an order of the Coast Rent Control Board. The manuscript date of the order on the record was 3rd October, 1951. A printed form headed "Order" was filled up. dated 4th October by an official of the Board certifying that on 3rd October the Board had made the order. The record further bore a note by the chairman "Delivered to parties on 5th October, 1951". The appeal was lodged on 5th November, 1951. The delay for lodging appeal permitted by rule 6 of the Increase of Rent (Restriction) (Enforcement of Determinations and Orders of the Board and Appeals from the Board's Determinations and Orders to the Supreme Court) Rules of Court, 1950, is 30 days. A preliminary objection was taken that the appeal had been filed out of time.

Held (28-5-53).—The proper construction to place upon the words "the date of such deter-<br>mination or order" contained in rule 6 is that they mean the date when the party appealing first became aware, or ought to have become aware of the order either by its<br>being read out in his presence or by a copy of the order being served upon him which-<br>ever first occurred. Applying this test, the appe appellant first became aware of the order when the chairman read it.

D. D. Doshi for appellant.

Mahmud for respondent.

DECISION.—A preliminary objection has been raised to the hearing of this appeal from an order of the Coast Rent Control Board, on the ground that the appeal was filed out of time. Rule 6 of the Increase of Rent (Restriction) (Enforcement of Determinations and Orders of the Board and Appeals from the Board's Determination and Orders to the Supreme Court) Rules of Court, 1950, provides that: "An appeal to the Supreme Court from any determination or order of the Board shall be made within 30 days from the date of such determination or order". In the present case the Board's order bore the date 3rd October, 1951. A printed form headed "Order" was on 4th October filled up, certifying that on 3rd October the Board had made the order. Immediately below the chairman's manuscript text of the order bearing date 3rd October, 1951, appears the following note by the chairman: "Delivered to parties on 5th October, 1951". The appeal was lodged on 5th November, 1951. Allowing for the fact that the 4th October was a Sunday, and so a *dies non*, the appeal would have been in time if the date of the order were to be taken as 5th October, on which day it was "delivered", but it would be out of time if the date of the order were the 3rd October, the date that it bore, or even the 4th October, the date of the official certifying of the making of the order.

Now, if read literally, the words in rule 6 prescribing 30 days from the "date of such determination or order" might seem to refer to the date on which the order was written, or may be presumed to have been written, assuming that such date was ascertainable, as it was in the present case, through the order being dated. That would be satisfactory if it could be shown or presumed that the parties concerned always became aware, on that same date, of the writing of the order. But such is not the case. It appears to be the practice for such orders to be "delivered", in the sense of being read out or "pronounced" in the presence of the parties, though not necessarily upon the date which they bear but perhaps a day or two later. Indeed it would be quite conceivable that an order might be written and dated, and then by some oversight be put away in a drawer and not brought to the notice of the parties, whether by pronouncement in their presence or by service upon them of a copy of it, until some weeks later. It seems to me that the only reasonable construction to place upon the words "the date of such determination or order" in rule 6 is that they mean the date when the party appealing first became aware, or ought to have become aware, of it, either by its being read out in his presence or at a time and place previously notified to him, or by a copy of it having been served upon him, whichever first occurred.

Applying this test, the appeal in this case was not out of time and there is no need for the appellant to resort to the proviso to rule 6 and to ask for extension of time for "good and sufficient cause". For the record shows that the order was "delivered" to the parties only on 5th October. That the word "delivered" in the record means that the order was read out or pronounced on that date. and not that copies of it were handed over to the parties, seems clear from the fact that on the following day, 6th October, the advocate of one of the parties wrote a letter to the Board (which is on the file) asking for "uncertified copies of the proceedings and judgment", which he would hardly have done if they had been already handed over to him the day before. In any case there is nothing on the record to show that the order was read out to the parties on any date earlier than 5th October. The indication are to the contrary.

The preliminary objection is accordingly dismissed, and the appeal will be heard on a date to be fixed.