1 C.L.R. - 1979 June 8 [TRIANTAFYLLIDES, P. DEMETRIADES AND SAVVIDES JJ.J VALENTINOS HARAKIS, Appellant-Defendant, v. TANNOUS K. FEGHALI, Respondent-Plaintiff. (Civil Appeal No. 5736). 5 Civil Procedure—Appeals—Want of prosecution—Rules 6, 21 and 22 of Order 35 of the Civil Procedure Rules—Provisions of rule 22 mandatory and come into operation without the need to take any specific step for that purpose—Appeal stands dismissed ever since the period of three months, after its lodging, expires—Action taken by registry, asking compliance with above rules, after the expiry of the saidperiod,cannot alter the legalposition, Rules 21 and 22 of Order 35 of the Civil Procedure Rules read a follows: 10 " 21.If the appellant does not, within one month of lodging his notice of appeal, apply for copies and make a deposit as provided in rule 6 of this Order, the appeal may be dismissed on the application of any party. Such application may be made ex parte, but the Court of Appeal may direct notice to be given to such of the other parties or persons affected by the appeal as it may deem fit. 15 20 25 " 22. If the appellant does not, within three months of lodging his notice of appeal, take the steps mentioned in rule 21 of this Order, the appeal shall stand dismissed, but it may, if the'Court of Appeal so deems fit, be reinstated upon such terms as may be just." The above appeal was filed on.July, 15, 1977 and it was common ground that the appellant did not take, within three months - of lodging his notice of appeal, the steps mentioned in rule 21, above. On November 10, 1977 long after the expiry of the three months' period prescribed by means of rule 22, the Registry of the Supreme Court addressed a letter* to counsel for- the appel293 Harakls τ.Fegball
(1979)lant, with copy to counsel for the respondent, asking him to comply with the provisions of the above rules. Counsel for the appellant did comply with the above letter and the appeal was fixedfor hearing on June 5, 1979. Upon a preliminary objection, raised by counselfor the 5 respondent, that the appealshouldbe treatedas having stood dismissed ever since theperiodspecified in rule 22 of Order35 expired after thefilingof the appeal on July, 15, 1977: Held,
(1)that whatever action was taken by the Registry administratively, in a routineway, cannotalter thelegal position which crystallized when, after the expiry of the three months' period prescribed by rule 22 of Order 35, this appeal came to stand dismissed by virtue of the application of rule 22.
(2)That the provisions of rule 22 are of a mandatory nature and, therefore, they come into operation without the need to take any specific step for that purpose; that, consequently, this appeal stands dismissed ever since the period of three months, after it was lodged on July 15, 1977, has expired; and that,ac cordingly, the preliminary objection must be sustained. 10 15 Objection sustained. 20 Observation: Inviewof the trueeffect of rule 22 of Order35, the Registry of this Courtshould nottake any step,in relationto an appeal which stands dismissed by operationof that rule,other than to certify that it does stand dismissed Cases referred to: Kyriacou v. Georghiadou
(1970)1C.L.R. 145 at p. 147; Ibrahimv, Kasab
(1972)1C.L.R. 16 at p. 17; HjiPanayi v. HjiPanayi
(1974)1 C.L.R.
- Preliminary objection. Preliminary objection raised by counsel of the respondent that the appeal should be treated as having stood dismissed ever since the period specified in rule 22 of Order 35 of the Civil Procedure Rules expired after thefilingof the appeal on July 15,
- B. Vassiliades, for the appellant. L. Papaphilippou, for the respondent. Seetheletterat p.296post. 294 25 30 35 1 C.L.R. Harakls v.Feghali TRIANTAFYLLIDES P.gave thefollowingjudgment of theCourt. 5 At the commencement of the hearing of this appeal counsel for the respondent raised the preliminary objection that this appeal should be treated as having stood dismissed ever since the period specified in rule 22 of Order.35 of the Civil Procedure Rules expired after the filing of this appeal on July 15,
- Rules 21 and 22 of Order 35 of the said Rules read as follows: 10 "
- If the appellant does not, within one month of lod ging his notice of appeal, apply for copies and make a deposit as provided in rule 6 of this Order, the appeal may be dismissed. on'the application of any party. Such applica tion may be made ex parte, but the Court of Appeal may direct notice to be given to such of the other parties or per sons affected by the appeal as it may deem fk. 15 22., If the appellant does not, within three months of lodging his notice of appeal, take the steps mentioned in rule 21 of this Order, the appeal shall stand dismissed, but it may, if the" Court of Appeal so deems fit, be reinstated upon such terms as may be just." 20 It is common ground that the appellant did not take, within three months of lodging his notice of appeal in the present case, the steps mentioned in rule 21, above. 25 30 In our view, the provisions of rule 22 are of a mandatory na ture and, therefore, they come into operation without the need to take any specific step for that purpose; consequently, we agree with counsel for the respondent that this appeal stands dismissed ever since the period of three months, after it was lodged on July 15, 1977, has expired; whether or not it should be reinstated is a matterwhich we have to examine if, and when, the appellant applies in this connection. It should be recalled that in Kyriacou v. Georghiadou,
(1970)1 C.L.R. 145, it was stressed by Joscphides J. (at p. 147):— 35 " It is in the'public interest that there should be some end to litigation, and the stipulations as to time in procedural matters laid down in the Rules of Court are to be observed unless justice clearly indicates that they should be relaxed: cf. Loizou v. Konteatis
(1968)1 C.L.R. -291, at page 294; Georghiou v. Republic (Minister of Interior and /inother i 2 9 5 < '"•'•' <&* % ' ν * Triantafyllides P. Haraklsτ.Feghali
(1979)
(1968)1 C.L.R. 411; and Edwards v. Edwards [1968] 1. W.L.R. 149." The above view was affirmed in Ibrahim v. Kasab,
(1972)1 C.L.R. 16, 17. The cases of Kyriacou and Ibrahim, supra, as wellas thecase of Hji Panayi v. Hji Panayi,
(1974)1C.L.R. 60, 5 were all cases inwhich, after thedismissal of appeals,underrule 22 of Order 35 of the Civil ProcedureRules, applications were made for reinstatement of the appeals concerned, but they do afford quite useful guidance about the natureof the significance of the said rule
- 10 It is quite correct that,in the present case, long after theex piry of thethreemonths* period prescribed by meansof rule 22, our Registry addressed, on November 10, 1977, to counsel for the appellant, with copy to counsel for the respondent, the following letter:- 15 " With reference to Order 35 rules 6, 21 and 22 of the Civil Procedure Rules,you arerequested tocomply with the pro visions of the Rules and lodge in this Court the sum of £3.—for the preparation of the record of the proceedings consisting of 11,900 words, if you wish to have the appeal 20 fixed for hearing." Thedelay on thepart of our Registry towrite theabove letter was dueto thefact thatthecopy of therecord of the appeal was forwarded to our Registry by thetrial Courtratherbelatedly,on October 21, 1977, and was received on October 26,
- 25 Very soon afterwards, onNovember 11, 1977,counsel for the respondent applied expartethat theappeal be dismissed onthe ground thattheappellantfailed tocomply with rule 21 of Order 35 of the Civil Procedure Rules; but this application was, in deed,superfluous as theappealatthetimestooddismissed under 30 rule 22 of the same Rules. Because, however, of theletter of November 10, 1977,counsel for theappellant paid thefee of £3and obtained a copy of the record of the appeal on November 12, 1977; and, then, on March 28, 1979,our Registry notified theparties thatthisappeal 35 was fixed for hearing on June 5,
- But whatever action was taken, as above, by our Registry 296 1 C.L.R. Harakls τ. Feghall Triantafyllides P. administratively, in a routineway, cannot alter the legal position which crystallized when, after the expiry of the three months' period prescribed by rule 22 of Order 35, this appeal came to stand dismissed by virtue of the application of rule
- 5 It is to be noted that a letter such as that which was sent by our Registry on November 10, 1977, to the appellant in the present case, was, also, addressed to the appellant in theKy~ riacou case, supra, as well as in the Ibrahim and in the Hji Panayi case, supra. But, in all those instances that letter was 10 sent within the period of three months prescribed under rule 22 of Order 35, and not after the expiry of such period, as in the present case. We would like to conclude by observing that, in view of the true effect of rule 22 of Order 35, the Registry of this Court 15 should not take any step in relation to an appeal which stands dismissed by operation of that rule, other than to certify that it does stand dismissed. In the result, the preliminary objection of counsel for the respondent is sustained and this appeal is treated as having stood 20 dismissed ever since the expiry of the period prescribed under the said rule
- 25 The costs of the respondent in this appeal are awarded to him against the appellant. Preliminary objectionsustained. Orderfor costs as above. 297