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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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Δεν έχει εντοπιστεί νομοθεσία ή απόφαση ή δικονομικός θεσμός στον οποίο να κάνει αναφορά η απόφαση αυτή
Μεταγενέστερη νομολογία η οποία κάνει αναφορά στην απόφαση αυτή:
Δεν έχει εντοπιστεί απόφαση η οποία να κάνει αναφορά στην απόφαση αυτή
(V8) 1 CLR 107
1909 March 26
[TYSER, C.J. AND BERTRAM, J.]
MICHAEL HAJI ZEMBILI
v.
MARITZA LOUKA.
PRACTICE-APPEAL-APPEAL BY LEAVE-FAILURE TO FILE ORDER GRANTING LEAVE-"DEFECT IN FILE OF PROCEEDINGS"-ORDER XXI, RULES 1, 21B.
Where an appeal is made by leave the omission to file a copy of the Order granting leave to appeal is fatal to the appeal, and the Supreme Court has no power to relieve against it.
Such an omission is not a "defect in the file of proceedings" under Order XXI, rule 21в.
This was an appeal from the District Court of Nicosia.
Paschales Constantinides for the Respondent took a preliminary objection, that the appeal being by leave, the order granting leave was not filed. Order XXI, rule 1. Malamatenios v. Irikzade (1907) 7 C.L.R., 55.
Theodotou for the Appellant. This omission constitutes "a defect in the file of proceedings," within the meaning of Order XXI, rule 21в and the Court may relieve against it.
The Court allowed the objection and dismissed the appeal.
Judgment. THE CHIEF JUSTICE: What we have to discover is the intention of the person who framed this rule. The words in rule 1 "shall be dismissed" are quite clear. When therefore the draftsman afterwards goes on to provide for a "defect in the file of proceedings" he cannot be referring to the points covered by the imperative words of rule 1. Otherwise the provisions of rule 21в. would operate as a general repeal of those of rule 1.
I am disposed to think that the expression "defect in the file of proceedings" does not mean something wrong in the file that ought to be right-something due to failure on the part of the parties. The words must be read in connection with the second part of the rule and point rather to some omission on the part of the officer of the Court.
BERTRAM, J., concurred.
Appeal dismissed.