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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> ARPL Palaniappa Chettiar v PLAR Arunasalam Chettiar (Malaya) [1962] UKPC 1 (31 January 1962) URL: https://www.bailii.org/uk/cases/UKPC/1962/1962_1.html Cite as: [1962] UKPC 1a |
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Judgment |
Case for the Appellant |
Case for the Respondent |
Record of Proceedings |
About the Privy Council Papers |
Privy Council Appeal No. 13 of 1961
P. N. CT. Ganapathy Chettiar
Appellent
v
PR. SP. Periakaruppan Chettiar and another
- Respondents
FROM
THE SUPREME COURT OF THE FEDERATION OF MALAYA
JUDGMENT OF THE LORDS OF THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, DELIVERED THE 14TH FEBRUARY 1962
Present at the Hearing:
LORD RADCLIFFE
LORD HODSON
LORD DEVLIN.
[Delivered by LORD RADCLIFFE]
The conclusion therefore is this. However these confused proceedings are looked at the order approving the sale was made in the absence of persons who should have been respondents. The second respondent was entitled to be served in proper form under Order 55, rule 5(a), and the requirements of this rule were neglected to his prejudice. But all rule requirements must be read in the light of the words of Order 70 "non-compliance with any of these rules shall not render any proceedings void unless the Court or Judge shall so direct". A breach of the rules affecting service of parties does not automatically render void an order made in the proceedings in which it occurs and it is necessary for the Court subsequently passing upon it to consider the circumstances and consequences to which it relates. These may vary widely. At the one end of the range is a case such as Craig v. Kanssen [1943] 1 K.B. 256 to which reference is made in the Court of Appeal's judgment, where in effect what had happened was that a defendant found himself the subject of an order for the payment of money without having been given any prior opportunity even of knowing that proceedings to this end were being taken against him. Such a defect of procedure, if uncorrected, is an affront to natural justice. At the other end are many occurrences in which some defect in requirements of service is in substance made good by. the action or consent of the party prima facie entitled to object. (See Marsh v. Marsh [1945] AC 271). No doubt there are many gradations between these two extremes. The question here is to which end of the range the present case belongs: in other words, what action should Adams, J. have taken when on the motion for review which came before him on the 20th June, 1960 he was asked to set aside or vary his previous order. The Court of Appeal thought that he ought to have set it aside on the ground that, in the absence of the second respondent, it was a mere nullity.
(1) The costs of the original application for the approval of the sale were ordered to be paid out of the proceeds of sale or the funds of the partnership. This order (25th April, 1960) was set aside by the Court of Appeal in toto and those costs are not provided for.
(2) The appellant's costs of the motion to review in the High Court were ordered to be paid by the two respondents (20th June, 1960). No part of this order has been formally interfered with by the Court of Appeal, although it was strictly the only one of the two orders that was the subject of the appeal to them. Since their decision necessarily meant that the Judge ought to have set aside his earlier order, it cannot be right to leave the respondents under liability to pay to the appellant his costs of the motion to review.
(3) The Court of Appeal (6th October, 1960) ordered the appellant to pay the respondents' costs of the appeal personally. The effect of that order is to deny the appellant any right to get those costs out of the intestate's estate.
(4) The Court of Appeal similarly ordered (12th December, 1960) that the appellant should pay the respondents' costs of his unsuccessful motion to them to review their previous judgment.
The appellant should pay the costs of this appeal, and should have a similar liberty.
(84789) Wt. 8109/53 100 3/62 Hw.