160-NLR-NLR-V-55-ATTORNEY-GENERAL-Appellant-and-V.-RAMASWAMI-IYENGAR-et-al.Administrators-o.pdf
672
GKRATTAER 3.^—Panditha v. de Zoysa
Present:Gratiaen A.C.J. and Gunasekara Jt£
ATTORNEY-GENERAL, Appellant, and V. RAMASWAMIIYENGAR et al. (Administrators of the Estate of R. A. A. R.
Arunachalam Chettiar, Deceased), Respondents r
S. Cf 483 and 484—Applications for Conditional Leave to appeal underthe Appeals {Privy Council) Ordinance in S. C. Nos. 235 and 236
of 1951
Privy Council—Conditional leave to appeal—Estate Duty Ordinance, ss. 40, 43—Assesses's appeal to Supreme Court—“ Civil suit or action ”—Appeals (PrivyCouncil) Ordinance (Cap. 85), s. 3.
A final judgment pronounced by the Supreme Court in an assessee’s appeal-under section 43 of the Estate Duty Ordinance is a judgment in “ a civil suitor action ” within the meaning of section 3 of the Appeals (Privy Council)Ordinance. Appeal lies, therefore, as of right to the Privy Council if thematter-in dispute on the appeal is of the required value.
GRATIAEN A.C.J.—Attorney-General v. Bamaswami Iyengar
573
A-PPLICATIONS ior conditional leave to appeal to the Privy Council.
Walter Jayawardena, Crown Counsel, with O. F. Sethukavalar, CrownCounsel, for the Attorney-General.
O
H. V. Perera, Q.C., with S. J. V. Chelvanayakam, Q.G., and S.Sharvananda., for the respondents.
Cur. adv. vult.
February 18, 1954. Gbatiaen A.C.J.—
The Crown has applied for leave to appeal to Her Majesty in Counoilagainst two judgments of this Court pronounced on 12th October 1953.In one case, the judgment affirmed a decree of the District Court ofColombo (passed under section 40 of the Estate Duty Ordinance) direct-ing the Crown to refund to the respondents a sum of Rs. 214,085*19(together with interest) representing an amount wrongly levied by therevenue authorities upon an assessment of estate duty. In the other case,the judgment set aside a decree in favour of the Crown in connectedproceedings and substituted a decree directing the Crown to refund tothe respondents (together with interest) a sum of Rs. 700,402*65.
The applications were resisted on the ground that, in the respondents’submission, neither judgment had been pronounced in “ a civil suit oraction ” within the meaning of section 3 of the Appeals (Privy Council)Ordinance (Cap. 85). Inmy opinion there is no substance in this objection.
We were deferred to earlier rulings of this Court to the effect that ajudgment in Insolvency proceedings could not be regarded, for thepurposes of an application for leave to appeal to the Privy Council, ashaving been pronounced in “ a civil suit or action ”—In re Ledward1,In re Keppel Jones 1 2, In re De Vos 3, and SockaMngam Chetty v. Manikam ,4.In the most* recent of these authorities, Drieberg J. pointed out thatLedward’s case {supra) was a binding decision of a Collective Court.I respectfully agree that, as far as Insolvency proceedings are concerned,it is not permissible to question the correctness of the ruling in Ledward’scase. On the other hand, the very brief judgment of the Collective Courtmakes it impossible to ascertain precisely the grounds of that decision.It would therefore be unsafe to attribute to it a ratio decidendi capable ofapplication or legitimate extension to judgments of the Courts exercisingjurisdiction under other statutory enactments.
There is i*b right of appeal to the Privy Council from a judgment ofthis Court on a case stated under the Housing and Town ImprovementOrdinance—Soertsz v. Colombo municipal Council6, Sangarapillai v.Chairman, C. M. C.e Similarly, with regard to a judgment on a case
1(1859) 3 Lor. 234.* (1930) 32 N. L. B. 65.
2(1877) Bam. 379.« (1930) 32 N. L. B. 62.
* (1899) 3 Br. 331.• (1930) 32 N. L. B. 92.
574
GRATXAEN A.C.J—Attorney-General v. Ramaawarni Iyengar
stated under the Income Tax Ordinance (i.e., before that Ordinancewas-recently amended to meet the difficulty). R. M. A. R. A. R.R.M.v. The Commissioner of Income Taxx. The principle is clear enough.When a Court exercises jurisdiction which is “ merely consultative incharacter ”, or makes a determination in the nature of an “ award ” inproceedings “ which from beginning to end were ostensibly and actuallyarbitration proceedings ”, its decision cannot be equated to a judgmentpronounced in “a civil suit or action ”—Rangoon Botatoung Co. v.Collector, Rangoon 2, Secretary of State for India v. CheUkani Rama- Rao 3,Tata Iron Steel Co. v. Chief Revenue Authority, Bombay *.'
r
The functions exercised by the Court under the Estate Duty Ordinancemust now be considered. An assessee “ appeals ” from the Commis-sioner’s determination to the appropriate District Court, and bis appeal“ shall be deemed to be and may be proceeded with as an action betweenthe appellant as plaintiff and the Croton as defendant ” (section 40). TheDistrict Judge’s decision is reached after trial on the issues which properlyarise, and a decree is duly passed which may inter alia direct oneparty or theother to make a payment in accordance with the determination of thecorrect amount of duty payable under the Ordinance. A further appeallies to this Court against “ any decree or order ” so made (section 43),and this Court is then empowered to enter a money decree in conformitywith its decision on the appeal. At every stage, therefore, the characteris-tic features of a litigation in regular civil proceedings before a Court ofrecord are prominently observed : the prayer for relief against an allegedwrong ; the litis contestatio; the framing of issues in order to clarify thenature of the dispute ; the hearing of evidence ; and then the Court’sdetermination followed by the passing of an effective decree grantingor refusing, wholly or in part, the relief asked for ; eventually, the hearingof an appeal (if one is preferred by the party aggrieved) xo a superiorCourt of record which may affirm, vary or modify the original decree.If the “ final judgment ” pronounced on such an appeal is not a judgmentin “ a civil suit or action ” within the meaning of the Appeals (PrivyCouncil) Ordinance, I really do not know what contrary description itcan accurately be said to attract.
In the past, the statutory right of appeal to the Privy Council in estateduty cases (the other requirements being also satisfied) has never beenquestioned. I concede that “ mere assumptions sub silentio are not tobe taken as authoritative ” and should not be followed if they are mani-festly wrong; Allen: Law in the Making (5th Ed.) p. 312. But in thiscontext the “ assumption ” is not based on error, and is justified by aruling of the Judicial Committee of the Privy Council in Commissionerof Stamps, Straits Settlements v. Oei Tjong Suang 5 which is precisely inpoint. It was there held that a decision of the Court of Appeal of theStraibs Settlements exercising jurisdiction in an estate duty case (under acolonial enactment based, like our local Ordinance, on the Finance Act, 1
1 (1935) 37 N. L. R. 447.3 (1916) L. R. 43 I. A. 192 at 193,
* (1912) L. R. 39 I. A. 197.4 (1923) L. R. 50CI. A. 212.
5 (1933) A. O. 378 at 399.
PUIXE J.—IPy'eaefcera v. KanapathipiUai
BiS
1894 of England) was “ not a mere award of an administrative characterbut a judgment or determinat ion made by the Court in a civil cause ” so thatan appeal lay as of right to the Privy Council under the Colonial CharterI would therefore allow the applications of the Crown subject to theusual conditions which apply to cases in which the Crown is petitioner.The respondents must pay the costs of the argument in each application.
GrUNASEKABA J.—I agree.
Applications allowed.