072-NLR-NLR-V-62-FERNANDO-Petitioner-and-SAMARANAYAKE-Respondent.pdf
WEERASOORIYA, J.—Fernando v. Samaranayahe
397
1960Present: Weerasooiiya, J., and T. S. Fernando, J.FERNAJNTDO, Petitioner, and SAMARANAYAKE, Respondent
3. C. 266—Application for conditioned leave to appeal to the Privy Council
in S. G. 523jD. G. Colombo 39558/M
Privy Council—Appeal to Supreme Court—Rejection on ground of abatement forfailure to apply duly for typewritten copies—Right of appeal to Privy Council—“ Pinal judgment ”—Civil Appellate Rules, 1938, Rules 2 (J), 4 (a)—Appeals(Privy Council) Ordinance (Cap. 85), Schedule, Rules l’(a), 3 (a)—Civil Proce-dure Code, s. 756 (3).
Where an appeal to the Supreme Court from a District Court judgmentfinally disposing of the rights of the parties is rejected on the ground that it hasabated under Rule 4 (a) of the Civil Appellate Rules, 1938, by reason of thefailure of the appellant to apply for typewritten copies, the order of the SupremoCourt rejecting the appeal is a final judgment within the meaning of Rule 1 (a)of the Schedule to the Appeals (Privy Council) Ordinance.
The Civil Appellate Rules, 1938, contain no provision, corresponding tosection 756 (3) of the Civil Procedure Code, for the granting of relief to anappellant whose appeal has abated under Rule 4 (a). But where a Court offirst instance has declared that an appeal has abated under that Rule, thecorrect procedure for an appellant, who does not question the legality or pro-priety of the order, but seeks to obtain relief from the abatement of his appeal,is to make an application to the Supreme Court in revision. Where, however,he questions the legality or propriety of the order, his remedy is by way ofappeal.
Application for conditional leave to appeal to the Privy Council.
H. V. Perera, Q.G., with H. W. Jay e-war dene, Q.G., and K. N. Cholcsy,for defend ant- app ell an t- p e titioner.
B. Vannitarriby, with H. Ismail, for plaintiff-respondent.
Gur. adv. vuU.
November 23, 1960. Weerasoorita, J.—
This application for conditional leave' to appeal to Her Majesty inCouncil was first argued before us on the 2nd September, 1960, when weallowed leave to appeal subject to the usual conditions. Before, however,the order allowing leave was signed by us, and with the concurrenceof my brotherf I had the matter listed for further argument. We areindebted to learned counsel for the assistance given us at the hearingwhich took place subsequently and at the conclusion of which we reservedjudgment.
The position, shortly, is that the petitioner, who is the defendant, filedan appeal to this Court from the judgment and decree of the District■ Court of Colombo in D. C. Case No. 39558/M condemning him to pay a
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WJblER.ASOOR.rYA, J.—Fernando v. Samaranayake
sum of fts. 75,000/- as damages and costs of suit to the plaintiff-respondent. When the appeal came up for hearing, counsel for the-respondent took a preliminary objection to the appeal being entertainedas the petitioner had failed to comply with the requirements of Rule 2 (1)-of the Civil Appellate Rules, 1938. Under Rule 4 (a) of those Rules anappeal' shall be deemed to have abated where the requirements of Rule
(1) have not been complied with. The preliminary objection was upheldand the appeal rejected by this Court, presumably on the ground that,it had abated in terms of Rule 4 (a). It is from this order that thepetitioner now seeks to appeal to Her Majesty in Council.
*Two submissions were urged by counsel for the respondent againstconditional leave to appeal being granted. One of them was that theordei rejecting the appeal is not a “ final judgment ” within the meaningof 'that expression in Rule 1 (a) in the Schedule to The Appeals (PrivyCouncil) Ordinance (Cap. 85). The other was that the order is not onemade in a -civil suit or action in the Supreme Court in terms of section
of the same Ordinance. In support of these submissions Mr. Vanni-tamby referred us to the case of Palaniappa Chetty et al. v. MercantilePanic et al.1 where, tco, the appellant had failed to comply with therequirements of Rule 2 (1) of the Civil Appellate Rules, 1938. But theorder declaring that the. appeal had abated was made by the DistrictJudge, before whom the matter was brought up by way of a motion.The correctness of the order does not appear to have been questioned bythe appellant, but with a view to obtaining relief he filed an appealfrom it and also an application in revision. Howard, C.J., (Heame,
J., agreeing) held that the order of the District Judge was a ministerialact from which no appeal lay, but that it was open to this Court to giverelief in the exercise of its powers of revision.
Under section 756 (1) of the Civil Procedure Code, when an appeal isfiled, various steps have to be taken by'the appellant in regard to, interalia, giving security for the respondent’s costs of appeal and depositinga sufficient sum of money to cover the expenses of serving notice ofappeal on him. Section 756 (2) provides that where the appellant hasfailed to give the security and to make the deposit, the appeal shall beheld to have abated. In Zahira Umma v. Abei/singhe et al.2 the procedureto be followed by an appellant-whose appeal is declared in the Court offirst instance to have abated under section 756 (2) was considered by aDivisional Bench of this Cotut, and it was held that the remedy is anapplicatipn for relief under section 756 (3), and not by way of appeal.From the judgment of Abrahams, C.J., in that case it would appear thatthis ruling was intended to be applicable only where the legality orpropriety of the order is not questioned. Where, however, such a ques-tion is raised, it was held in Alima Natchiar v. Marikar et cil.3 that theproper course is to file an appeal. See, also, Mapalagamaethige Carlinav. Mary Nona Silva*.
1 {1941) 43 N. L. R. 127.3 {1945) 47 N. L. R. 81.
a {1937) 39 N. L. R. 84.* {1945) 47 N. L. R. 16.
WEERASOORTYA, J.—Fernando v. Samar anayake
399-
The Civil Appellate Rules, 1938, contain no provision, correspondingto section 756 (3) of the Civil Procedure Code, for the granting of reliefto an appellant whose appeal has abated under Rule 4 (a). But wherea Court of first instance has declared that an appeal has abated underthat Rule, the correct procedure for an appellant, who does not questionthe legality or propriety of the order, but seeks to obtain relief fromthe abatement of his appeal, is to make an application in revision, as heldin Palaniappa Chetty et al. v. Mercantile Bank et al. (supra). Where,however, he questions the legality or propriety of the order, his remedywould appear to be by way of appeal—see Alima Natchiar v. Marikaret al. (supra), which dealt with the abatement of an appeal under section756 (2) of the Civil Procedure Code, but the ratio decidendi of which, Ithink, applies to an abatement under Rule 4 (a) as well.
Sir. Vannitamby did not take up the position that, whichever of thesetwo remedies an appellant might adopt as the appropriate one, the result-ing appeal or application in revision would not be a civil suit or actionin the Supreme Court in terms of section 3 of The Appeals (Privy Council)Ordinance. But he contended, firstly, that in respect of the substantiveappeal which is declared to have abated by order of the Court of firstinstance, there would be no civil suit or action pending in this Courtuntil such order is set aside ; and, secondly, that the appeal filed inthe present case against the judgment and decree of the District Courthad abated by operation of law before the order rejecting it was madeby this Court and, therefore, there was no civil suit or action pendingwhen that order was made. I need not consider the first of these con-tentions as no order of abatement was made by the District Court inthis case. As for the other contention, while it is correct to say that theabatement of an appeal under Rule 4 (a) of the Civil Appellate Rules,1938, is brought about by operation of law, I think that there shouldbe a formal order or declaration of abatement, or the equivalent asf it,either by the Court of first instance, or by the appellate Court, before theappeal can be regarded as having abated. It is the order or declarationwhich gives effect to the relevant law governing the abatement of theappeal. Therefore, in my opinion, the appeal against the .judgment anddecree of the District Court was still pending when the order rejectingit was made by this Court.
On the question whether the order rejecting the appeal is a “ judgment ”within the meaning of Rule 1 (a) in the Schedule to The Appeals (PrivyCouncil) Ordinance, Mr. Vannitamby, relying on Palaniappa Chetty et al.v. Mercantile Bank et al. (supra), contended that it was only a ministerialact. In that case, however, the order of abatement was made by theDistrict Court. In the present case the order rejecting the appeal wasmade by this Court in the exercise of its appellate jurisdiction, and whenthe appeal came up for hearing in the ordinary course. I am unableto regard such an order as other than a judicial act. I am also of theview that the order was a ** final ” judgment within the meaning of Rule1 (a). There can be no question that the judgment and decree of theDistrict Court finally disposed of the rights of the parties (subject,
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Ratwatte. v. Abdul Azeez
however, to appeal) and so did the order of this Court rejecting the appeal—see Settlement Officer v. Vander Poorten et al.1 and Usoof v. The NationalBank of India Ltd. a.
Leave to appeal to Her Majesty in Council is, therefore, granted underRule 3 (a) in the Schedule to The Appeals (Privy Council) Ordinancesubject to the usual conditions. The period of one month referred toin that Rule "will be computed from the date of this judgment.
The respondent will pay to the plaintiff-appellant the costs of thisapplication.
T. S. Fernando, J.—I agree.
Application allowed.