083-NLR-NLR-V-33-AHAMADU-LEBBE-et-al.-v.-ABDUL-CADER-et-al.pdf
Ahamadu Lebbe v. Abdul Cader.
387
1931 Present: Macdonell C.J., Garvin S.P.J., and DriebergJ.
AHAMADU LEBBE et al. v. ABDUL CADER et ai.
367 and 368—D. C. Colombo, 34,834.
Privy Council—Applicationforconditionalleave by defendants—Action to
have meeting declared illegal—Plaintiff's valuation—Test of defendant'sinterest.
The plaintiffs Buedthedefendantsto obtaina declarationthat a
meeting of the congregation of a mosque held for the purpose of approvingof the appointment of priests made by the executive committee, dec.,was irregularly held and to have the proceedings at the meeting declarednull and void. There was a subsidiary cause of action in which theplaintiffs alleged that thedefendantshad notprepared half-yearly
balance sheets and the relief asked for was that they be directed toprepare them. Thiscauseof actionwas notpressed. Theplaintiff*
got judgment. The value set upon the action in the plaint was Bs. 6,000.
Held (in an application 4ot leavetoappeal bythe defendants), that
they were entitled tohaveleave, asthe adverseeffect of thejudgment
on their interest cannot bevaluedatless thanits advantage to the
plaintiffs.
T
HE plaintiffs brought anactiontoobtain adeclaration that a
meeting of the congregation of the Maradana mosque held on
August 25, 1929, for the purpose of approving of the appointment ofpriests made by the executive committee, and for selecting a charteredaccountant to audit the, balance sheet was irregularly held and to havethe proceedings declared null and void. In this cause of action the.plaintiffs succeeded.
For the second cause of action, the plaintiffs alleged that the petitionershad not submitted half-yearly balance sheets as required by rule 15 ofschedule 2 of Ordinance No. 22 of 1924, since January 1, 1927, and thatthe first to fifteenth petitioners had been paid by the Colombo MunicipalCouncil a sum of Rs. 133,502.42 for the acquisition of a mosque propertyand that they had not accounted for it. The second cause of action wasnot pressed as the balance sheet had been submitted since, the institutionof the action.
The first to fifteenth defendants applied for conditional leave to appealto His Majesty the King in Council.
H. V. Perera (with him Marihar, 'Gratien and Salman) for the first tofifteenth defendants, petitioners.—Every civil right must be valued.
(<Section 40 of Civil Procedure Code.)
The plaintiffs have valued their claim at Rs. 6,000 and we rely on theirvaluation in the absence of anything to the contrary in the judgment.
We cannot assess a right which we say does not exist.
The value is to be settled by the statement in the plaint (Delmege v.
Delmege De Alwis v. Appuhamy 2).
11 N. L. R. 271.
30 N. h. R. 421.
888DRIEBBRG *7.—Ahamadu bcbbe v. Abdul Cadet.
II. E. Garvin (with him Jayewickrame), for the plaintiffs, respondents.—The test for determining the value is the extent to which the judgment-affects the interests of the petitioners who are prejudiced by it {Allan v..Pratt l, 8. Kurukkal v. Subramaniam 2).
Quite apart from any value which the plaintiffs have set on their claim,the petitioners have to prove that they were prejudiced to the extent ofRs.' 5,000 or more.
The assessment of Rs. 6,000 in the plaint is of two causes of action.There is no separate assessment of the first cause of action on which alone*judgment has gone against the petitioners. There is nothing to showthat the value of the first cause of action is Rs. 5,000.
L. A. Iiajapakset for sixteenth to nineteenth defendants, respondent.
H. V. Pererat in reply.—The adverse effect of the judgment on theinterests of the petitioners cannot be valued at less than its advantagesto the plaintiffs.
December 16, 1931. Driebehg J.—
The first to the sixth and the fifteenth defendants in appeal No. 36ftand the seventh to the fourteenth defendants in appeal No. 367 apply forconditional leave to appeal to His Majesty the King in Council. Theirapplication is opposed by the plaintiffs-respondents who say that thejudgment sought to be appealed from is not one from which an appeallies of right.
The main purpose of this action was to obtain a declaration that -a:meeting of the congregation of the Maradana mosque held on August 25,.1929, for the purpose of approving of the appointment of priests made bythe executive committee and for selecting a chartered accountant to-audit the half-yearly balance sheet of the executive committee was*irregularly held and to have the proceedings at the meeting declared nulland void. In this cause of action the plaintiffs succeeded. It was held,that the meeting was irregularly held, it being limited to members of thecongregation whom the petitioners had registered for the purpose of the*meeting in an improper manner so as to exclude from the meeting a verylarge number of the congregation who had for some time been in opposi-tion to the petitioners, who are the members of the executive committee.
' For the second cause of action the plaintiffs alleged that the petitionershad not submitted half-yearly balance sheets as required by rule 15 ofschedule 2 of Ordinance No. 22 of 1924 since January 1, 1927, and further,that the first to the fifteenth petitioners had been paid by the ColomboMunicipal Council a sum of Rs. 133,502.42 for the acquisition of a mosqueproperty and that they had not accounted for it. The relief asked for onthis cause of action was that the first to fifteenth petitioners be directed,to submit the balance sheets for the half-years from June, 1927, to-June,.
The plaintiffs alleged that the subject matters of action were ofthe value of Rs. 6,000 and the property of the mosque was worthRs. 2,000,000.
Issues were framed on the second cause of action, viz., whether the firstto fifteenth petitioners were under an obligation to submit balance sheets,whether they failed to do so, and what sum was received by the first to-fifteenth petitioners as compensation by the Municipality, whether they1 (im) 13 A. C. 7S0.3 31 N. L. R. 165-
DRIEBERG J.—Ahamadu Lebbe v. Abdul Coder,
339
•accounted for the sum, and whether the first petitioner had wronglyappropriated from it a sum of Rs. 30,000; this last issue referred to thesum of Rs. 23,323.76 which the first petitioner retained as fees for hisprofessional services in the matter of the acquisition.
The trial Judge in his judgment noted that as the balance sheet hadbeen prepared since the institution of the action the second cause of-action was not pressed.
The plaintiffs resist the application for conditional leave on this ground.They say that the test for determining value for this purpose is the extentto which the judgment affects the interests of the petitioners who areprejudiced by it. This is right, and it is the test referred to by LordSelbourne in Allan v. Pratt.1 They say that quite apart from any valuewhich they have set on their claim the petitioners have to prove that they"have been prejudiced to the extent of Es. 5,000 or more by the judgment ofthis Court. They say, further, that even if the petitioners can claim thatthe value set by the plaintiffs should be accepted as the value for thepresent purposes of the petitioners, that the assessment of Rs. 6,000 inthe plaint was of both causes of action; that there being no separateassessment of the first cause of action on which only judgment has goneagainst the first to the fifteenth petitioners, there is nothing to show thatthe value of that is Es. 5,000. They say therefore that it is incumbenton the petitioners to show that the judgment entered against them on thefirst cause of action gives them a right of appeal.
As 1 have said, the main cause of action was the first, and the secondwas merely subsidiary to it. Objection was taken by the petitioners toissues 6, 7, and 8 which deal with the failure of the petitioners to accountproperly for the money received from the Municipality and the appropri-ation of part of it by the first petitioner; it was said that this was irrelevantas no relief was claimed in respect of it. Counsel for the plaintiffs claimedthat these issues were necessary as it was their case that the petitionershad dealt improperly with the mosque funds and that this was one reasonfor their arranging the packed general meeting from which they illegallyexcluded members of the congregation in opposition to them.
It appears to me that the other averment of the second cause of actionthat the petitioner had not submitted balance sheets was made for thesame purpose. Under rule 15 the duty is cast on the managing trusteeand the treasurers of the executive committee of individually or jointlyfurnishing the executive committee with a half-yearly balance sheet;the selection of a chartered accountant to audit these is left to the congre-gation. The balance sheet after audit has to be sent to the members ofthe Board of trustees and to such members of the congregation as mayask for it. It is not easy to see how a decree could be entered in terms ofthe prayer against the petitioners to ** submit ” a balance sheet and towhom' this is to be submitted. As members of the congregation or intheir special capacity of members of the Board of trustees the plaintiffsmight compel the petitioners as members of the executive committee tosubmit to them a duly ajudited balance sheet, but these balance sheets, ifthey were ever prepared, were never duly audited. It was officially statedat the meeting of August 25 that the accounts, except • for the half-year
» (1888) 13 A. C. 780.
340
DKIEBERG J.—Ahamadu Lcbbe t>. Abdui Coder.
preceding the meeting, had been written in Tamil and that it was notpossible for that reasop to have them audited by a chartered accountant.
The petitioners and other members of the executive committee wereguilty of neglect of duty in not insisting on the managing trustee andtreasurers preparing the balance sheets for audit but, as I have said, theonly real purpose in bringing this in was to show a further reason thepetitioners had for excluding hostile critics from the general meeting.
I cannot regard the relief sought under the second cause of action assusceptible of any separate and distinct valuation apart from the firstand it must be taken that judgment has gone against the petitioners forrelief which the plaintiffs have valued in their plaint at Rs. 6,000.
An exact valuation is not possible in such a claim as this. Section 40of the Civil Procedure Code provides that in an action to enforce a rightstatus or privilege the plaint need only state approximately the valueof that right status or privilege. This action obviously could not bebrought in a Court of Requests which has a jurisdiction of Rs. 300. Invaluing their claim at Rs. 6,000 and not under Rs. 5,000 the plaintiffs inmy opinion intended to value it at an amount which would secure forthemselves the advantage of an appeal to the Privy Council if they failed,here. The petitioners in their answers did not say that the value of theclaim was under Rs. 5,000, no issue was framed regarding value, and,Itake it that the petitioners accepted the valuation as one which wouldentitle them, if necessary, to take the case to the Privy Council.
Cases no doubt arise where the value of the judgment obtained by aplaintiff is not the same as its value considered as it affects the interests-of the defendant. An instance of the value to the defendant of an adversejudgment being greater than the value laid by the plaintiff in his claim isto be found in the case of MacFarlane v. Leclaire1 but ordinarily there canbe no difference in an action such as this between the value of the judgmentconsidered as the advantage gained by the plaintiff and, from the point ofview of the defendant, as the loss or damage to him.
In this case the adverse effect of the judgment on the interests of thepetitioners cannot possibly be valued at less than its advantage to theplaintiffs and the plaintiffs* objection cannot succeed.
The sixteenth, seventeenth, eighteenth, and- nineteenth defendantssupported the objection of the plaintiffs regarding the value of fhe actionand raised a further objection. Mr. Rajapakse for them contended thatthey were not necessary parties to the appeal, and that the petitioners'appeal against them was only on the question of costs. It is sufficientas regards these defendants to say that all we have to decide on this appli-cation is whether the petitioners have a right of appeal under rule 1 (a) ofschedule 1 of the Courts Ordinance, and if they have this right I do notthink it is within our power to direct that these defendants should not bemade parties to the appeal.
The application of the petitioners is allowed with costs against theplaintiffs and the sixteenth, seventeenth, eighteenth, and nineteenthdefendants.
Macdonell C.J.—I agree.
Garvin S.P.J.—I agree.
Application allowed.
1 Privy Council Cases 181.