SILVERLINE BUS CO., LTD., et al., Petitioner, and KANDY OMNIBUS CO., LTD., et a

055-NLR-NLR-V-58-SILVERLINE-BUS-CO.-LTD.-et-al.-Petitioner-and-KANDY-OMNIBUS-CO.-LTD.-et-a.pdf

1956 Present: Basnayake, C.J., Gunasekara, J., PuIIe, J., de Silva, J.,and Sansonl, J.SILVERLLX12 BUS CO., LTD., cl at., Petitioners, and KANDYOMNIBUS CO., LTD., cl al„ Respondents
S. G. 619—Application for Conditional Leave to Appeal to the PrivyCouncilfrom the Judgment of the Supreme Court in S. O'.Application. No. 59611952
Privy Council—Conditional leave to appeal—Certiorari—“Civil suit or action"——Courts Ordinance, s. 42—Civil Procedure Code, ss. 5. 6—Appeals {PrivyCouncil) Ordinance, s. 3.
Held (Saxsont, J., dissenting), that an appeal to tho 1’rivy Council does not liofrom a decision of tho Supreme Court in an application for a writ of certiorari.Such an application does not fall within the ambit of tho expression “ civilsuit or action ” in section 3 of tho Appeals (Privy Cpuncil) Ordinance, evenwhen tho application is made by a party aggrieved who has suffered damageby un unwarranted exercise of jurisdiction.'
The words “ civil suit or action ” in section 3 of tile Appeals (Privy Council)Ordinance should bo construed in their ordinary sense of a proceeding in whichone party sues for or claims something from another in regular civil proceedings.
In re Goonesinha (1942) 44 2f. L. R. 75 and Kodakan Pillai v, Mudanayake(1951) 54 N. L. R. 350, overruled.
-ApPLICATION for conditional leave to appeal to the Privy Council.
Tho Kandy Omnibus Company Ltd. complained to the Commissionerof Motor Transport that the Silverline Bus Company Ltd. and certainother omnibus Companies were picking up passengers and setting themdown within the limits of Kandy town in violation of its own rights underits route licence. When the Commissioner of Motor Transport madeorder in favour of the Kandy Omnibus Company Ltd., the Companiesaggrieved by the order appealed to the Tribunal of Appeal constitutedunder the Motor Traffic Act, No. 14 of 1951. In the appeal, tho Tribunalof Appeal set aside the order of the Commissioner of Motor Transport.The Kandy Omnibus Company Ltd. then applied for a wait of certiorari toquash the order of the Tribunal of Appeal. The Supreme Court quashedthe order on the ground that the Tribunal of Appeal had acted withoutjurisdiction. Thereupon the present application for leave to appeal tothe Privy Council was lodged.
TOC o "1-5" h z
H. IF. Jayeivardene, Q.C., with G. T. Samerawickrame, D. R. P. Goone-tilleke, and 31. R. 31. Daluu-atle, for Petitioner..
H. V. Perera, Q.G., with G. G. Weeramantry and G. Barr Kumarakula-singhe, for 1st Respondent..
F. N. Gratiaen, Q.G., Attorney-General, with V. S. A. Pullenayegum,.Crown Counsel, for tho Crown (with permission).
Cur. adv. vult.
9i/vui
2J. X. B 82761—1,503 (1/07)
December 14, 195G. Basxayake, C.J.—
This is an application for leave to appeal to the Privy Council underthe Appeals (Privy Council) Ordinance (hereinafter referred to as theOrdinance) from an order made by a single Judge of this Court grantinga mandate in the nature of a writ of certiorari under section 42 of theCourts Ordinance cpiashing the decision of a Tribunal of Appeal consti-tuted under the Motor Traffic Act, No. 14 of 1951.
The application is opposed on the ground that the proceedings inwhich the mandate was granted do not fall within the ambit of theexpression “ civil suit or actionin section 3 of the Ordinance. The matter .was first argued before my brother Wecrasooriya and myself and as wofailed to agree on the order that should be made it was set down for hearingbefore a Bench of five Judges constituted under section 01 of the CourtsOrdinance.
The Attorney-General appeared at the present hearing and asked thathe be permitted to make his submissions on the questions involved as ourdecision might affect certain. Crown appeals pending before the PrivyCouncil although those appeals are not appeals from decisions onapplications for writs of certiorari.
It will be convenient if I were to state, as briefly as possible, the factswhich led to the application, for a mandate in the nature of a writ ofcertiorari, by the respondent to the present application for leave to appeal,the Kandy Omnibus Company Limited (hereinafter referred to as therespondent).
The respondent was the holder of eight route licences granted under the.Omnibus Service Licensing Ordinance, No. 47 of 1942, all operativewithin the town of Kandy. In the year 1945 it complained to the Com-missioner of Motor Transport that- the Silverline Bus Company Limited,the P. S. Bus Company Limited, the Singhc Bus Company Limited, the-United Bus Company Limited, the Purakrania Bus Company Limited,the W. H. Bus Company Limited, the Sri Lanka Omnibus CompanyLimited, and the Madhyama Lanka Bus Company Limited (hereinaftercollectively referred to as the applicants) who had route licences to plyfor hire between Kandy town and places outside it were picking uppassengers and setting them down within the limits of Kandy town toits prejudice and in violation of its rights under its route licence.
On 29th September 1950 the Commissioner of .Motor Transport afternotifying and hearing the other Companies made order that they shouldnot pick up and set clown passengers within the limits of Kandy town.The applicants appealed to the Tribunal of Appeal constituted underthe Motor Car Ordinance, No. 45 of 193S, against the Commissioner'sorder, but one of them—the Madhyama Lanka Bus Company Limited—withdrew its appeal at the hearing. The appeals were heard on ISthNovember 1950 and 9th and loth December 1950 by a Tribunal consistingof Messrs. S. J. C. Kaclirgamar, S. Pararajasingham and T. V. Roberts,but the hearing remained unfinished on 1st September 1051 when theMotor Traffic Act, No.. 14 of 1951, which repealed the Motor CarOrdinance, No. 45 of 193S, was brought into operation.
On 2GtIi August 1952 the Minister of Transport and Works made thefollowing order:—
“ Motor Car Ordinance, kTo. 45 of 193S,and
Motor Traffic Act, No. 1-t of 1951
It is herely notified that the Honourable the Minister for Transportand Works has been pleased, under section 4 of the Motor Car Ordinance,No. 45 of 193S, read with paragraph (c) of tho proviso to section 243 (1)and soction 246 (4) (a) of the Motor Traffic A'ct, No. 14 of 1951, toappoint the following to form a panel from which Tribunals of Appealshall he constituted for the purpose of disposing of the appeals whichhave been duly preferred under the Motor Car Ordinance, No. 45 of1938, and the Omnibus Service Licensing Ordinance, No. 47 of 1942:—
Mr. T. W. Roberts
Mr. S. Pararajasingham
Mr. S. J. C. Kadirgamar, <T.P.
Jlr. P. C. Villavarayan
Mr. Fred J. de S’aram
Mr. M. Shunxs Cassim, M.B.E.
Mi-. J. L. M. Fernando
Mr. A. E. Christoffelsz, C.M.G.
Mr. S. P. Wickremasinha
10. Mr. E. W. Kaimangara, C.B.E.
Sgd. J. N. Aeu.mu'gam,Permanent Secretary,
Ministry of Transport and Works.
Colombo, August 26, 1952 ”.
Of the abovenamed the first three members, who heard the appealunder tho repealed law, continued the hearing purporting to do so byvirtue of the above order, and on 10th October 1952 made order settingaside tho order of the Commissioner of Motor Transport. The respon-dent thereupon applied for a mandate in tho nature of a writ of certiorarito quash the order of the Tribunal, on the ground that tho members of theTribunal who continued the hearing of the appeal under the old law hadno jurisdiction to do so. After a hearing which lasted a number of daysthe order of the Tribunal was quashed on the ground that it had actedwithout jurisdiction. Thereupon tho present application for leave toappeal to the Privy Council was lodged….
As stated at the very outset of this judgment, this application isopposed oh the ground that certiorari proceedings do not fall withinthe ambit of the expression “ civil suit or action ” in section 3 of thoOrdinance. '’
In order to ascertain whether a writ of certiorari can aptly fall withinthe ambit of the expression " civil suit or action ”, it is necessai-y first toascertain the nature and scope of tho writ which in our law is in tho form of
a mandate and in England, since the abolition of the prerogative writ by'section 7 of the Administration of Justice (Miscellaneous Provisions)Act-, 103S, is in the form of an “ order
According to Bacon’s Abridgment, Volume If, page 0. a certiorari is—
t:an original writ issuing out of Chancery, or the
King’s Bench, directed in the king’s name, to the judges or officers ofinferior courts, commanding them to rot-urn the records of a. causedepending before them, to the end the party may have the more sureand speedy justice before him, or such other justices as he shall assignto determine the cause.”
Though the 193S statulo abolished the writs, nevertheless the natureand scope of the orders which took their place remained unchanged.In the words of Scrut-ton, L.J., in li. v. The London- County Council,Ex- pa He The Entertainments Protection. Association Ltd.1—the writ ofcertiorari is
…. a very old and high prerogative writ drawn up for thepurpose of enabling the Court of King’s Bench to control the action ofinferior Courts and to make- it certain that they shall not exceed theirjurisdiction ; and therefore the writ- of certiorari is intended to bringinto the High Court the decision of the inferior tribunal, in order thatthe -High Court may be certified whether the decision is within theiurisdiction of the inferior Court.”
It is a writ which can be availed of both in civil and in criminalproceedings. As was observed by Lord Sumner in E. v. Not Bell LiquorsLtd A—
The object is to examine the proceedings in the inferior Court tosee whether its order has been made within its jurisdiction. If thatis the whole object, there can be no difference for this purpose bcfwcencivil orders and criminal convictions, except in so far as differencesin the form of the record of the inferior Court’s determination or in thestatute law relating to the matter may give an opportunity for detect-ing error on the record in one case, which in another would not havebeen apparent to the superior Court, and therefore would not havebeen available as a reason for quashing the proceedings.”
The certiorari jurisdiction, if I may so call it for the sake ofconvenience, of the High Court in England and indeed of this Courtin this country is, again in the words of Lord Sumner (page 156)—
(1931) 2 K. B. IIS at >33.
(1.022) 2 A. ('. 123 at 151-153 .
…. to see that the inferior Court has not- exceeded itsown (jurisdiction), and for that verj- reason it is bound not to interferein what has been done within that jurisdiction, for in so doing it woulditself, in turn, transgress the limits within which its own jurisdictionof supervision, not of review, is confined. That supervision goes to twopoints : one is the area of the inferior jurisdiction and the qualificationsand conditions of its exercise ; the other is the observance of the lawin the course of its exercise.”
These principles have recently been re-stated by Denning, L.J., inR. v. Northumberland Compensation Appeal Tribunal, Ex parte Shaw —
*r…. the Court of lung s Bench has an inherent jurisdiction
to control all inferior tribunals, not in an appellate capacity, but in asupervisory capacity. This control extends not only to seeing that theinferior tribunals keep within their jurisdiction, but also to seeing thatthey observe the law. The control is exorcised by means of a powerto quash any determination by the tribunal which, on the face of it,offends against the law.- The King’s Bench does no't substitute its ownviews for those of the tribunal, as a court of appeal would do. Itleavos it to the tribunal to hoar the case again, and in a proper casbmay command it to do so. When tho ICing’s Bench exorcises itscontrol over tribunals in this way, it is not usurping a jurisdictionwhich does not belong to it. It is only exercising a jurisdiction
Tho dicta I have cited go to show that proceedings in certiorari do notfall within the category of proceedings known as suits or actions. In.certiorari the Court exercises its supervisory functions in order to deter-mine whether the inferior tribunal has exceeded its jurisdiction or com-mitted an error of law apparent on tho face of the proceedings, and is not-called upon to pronounce judgment on the merits of tho dispute betweenthe parties before the inferior tribunal.
In support of the contention that certiorari falls within the scope of"the expression “ civil suit or action ” learned counsel relied on the casesof Abbot v. Sullivan <0 others 2, Lee v. Showmen’s Guild of Great Britain a,and O’Connor v. Isaacs <0 others 4.
The first of these cases was an action for damages by the plaintiff, a corn*porter employed in the London docks, who was a member of a committooformed to protect tho interests of corn' porters. On account of an inci-dent in which the plaintiff was involved his name was removed from theregister of corn porters by the committee. The plaintiff’s action fordamages was against two members of the committee for wrongfullyremoving him from the register and against another for procuring hisremoval. It was hold that tho resolution by which the plaintiff’s removalwas decided was ultra vires of the committee, and was invalid • but a3the defendants were not actuated by malice or wrong motive the majorityof the Court did not award damages.
Tho second case was an action by a member of the Showmen’s Guildof Great Britain against tho Guild for a declaration that the decisions ofthe Committee—
(а)that tho plaintiff was guilty of “ unfair competition ”, and
(б)imposing a fine on him, and
(c) that he had ceased to be a member as he. did not pay the fino,
were ultra vires and void. The Court held that the Committee had actedultra vires and that their decision to expel the plaintiff was Void. '
(1952) 1 A. E. R. 1175.
(1956) 2 W. L. R. 5S5.
In the third ease the plaintiff sued the Justices of the Peace of thePetty Sessional Division of Kingston-upon-Thamcs, Surrey, fourteenin number, claiming damages for false imprisonment and for acts doneby them without jurisdiction while sitting as Justices of the Peace.
All these three cases were regular actions and not proceedings in certio-rari. There can be no doubt that these cases would fall within the ambitof our expression “ civil suit or action ”. But the fact that an action fortrespass lies, where a Magistrate or any Judge of an inferior Court assumesjurisdiction, where he has no jurisdiction, as a result of a mistake of law-does not afford ground for holding that proceedings in certiorari to havethe illegal assumption of jurisdiction examined by the High Court aroan action against the Magistrate or Judge.
In the eases cited above the aggrieved parties sought the remedy forthe wrong done by suing the wrong doers. If, instead of suing them,they chose to take proceedings in certiorari, it would not ho correct tosay that the aggrieved parties sought the remedy for the wrong done.But it would bo correct to say that they invoked the aid of the HighCourt to have the errors committed by the authorities concerned corrected.The above c-ases therefore afford no authority for saying that proceedingsin certiorari come within the ambit of the expression “ civil suit oraction ”.
I shall now proceed to examine the meaning and content of the expres-sion “ Civil Suit or Action ” in section 52 of the Charter of 1S33 and insection 3 of the Ordinance. But before I do so I shall briefly refer to theorigin and scope of our legislation on the subject of appeals to the PrivyCouncil.
The right of establishing Courts is a branch of the prerogative of theCrown l. The Sovereign has the right, by virtue of the prerogative, toreview- the decisions of all t he Courts outside England, except where suchright lias been expressly parted with -.
It is open to the Crown to part with, its prerogative right to receiveappeals either altogether or in respect of certain matters only. It mayalso regulate the right of appeal by conferring on the local courts theright to grant leave to appeal to t-ho Sovereign in certain classes of cases.It may even grant a statutory right of appeal and regulate the exercise ofthat by express enactment. In the case of Queen c. Alloa Prtroo3 LordBrougham observed :—
-“ It might be reasonably contended that the Crown may point out
the manner in which Hie general common-law right of Appeal to itfrom colonial sentences shall be exorcised, by a particular mode ofenactment in the Charter. It may say, there is a right to appeal tothe Crown generally. That Appeal shall be in civil cases at all times,bnfc that Appeal shall be in criminal cases only in a certain mannerand form, anil I shall delegate to my Judges below, tho right (the. Crown may sav) to refuse or to grant it, as they see fit . ”
■ lie Lord Bishop oj Kalal, [1SC1) 3 Moo. (.V. S.) 115 at 152.^ _
The Falkland Islands Co. v. The, Queen, (1S63) 1 3/oo. (A. S.) 29!) al 312.
In re Abraham Mallory Dillct [Brit. Hond.), [1 SSI) 12 –1. C. 159 at -lob.
Thcrbcrge v. Landry [Quebec). [1STG) 2 A. C. 102 at 106,
2 [/SIT] -5 Moo. P. C. 296 at 303.
No reference to the development of the jurisdiction of the Privy Councilwould be complete without a citation from the judgment of VisjjountCave, L.C., in Nadan v. The King 1 wherein the matter is admirablyset out…..
'* The practice of invoking the exercise of the royal prerogative byway of appeal from any Court in His Majesty’s Dominions has longobtained throughout the British Empire. In its origin such an applica-tion may have been no more than a petitory appeal to the Sovereignas the fountain of justice for protection against an unjust administra-tion of the law ; blit if so, the practice has iQng since ripened into aprivilege belonging to every subject of the King. In tlio United King-dom the appeal was made to the King in Parliament, and was thefoundation of tlio appellate jurisdiction of the House of Lords ; but inHis Majesty’s Dominions beyond the seas the method of appeal to theKing in Council has prevailed and is open to all the King’s subjectsin those Dominions. Tho right extends (apart from legislation) tojudgments in criminal as well as in civil cases : see Beg. v. Bertrand(L. ft. 1 P. C. 520). It has been recognized and regulated in a seriesof statutes, of which it is sufficient to mention two—namely, thoJudicial Committee Act, 1S33 (3 & 4 Will. 4, c. 41), and tho JudicialCommittee Act, 1S44 (7 & S Viet., c. G9). The Act of 1S33 recitesthat ‘ from the decisions of various courts of judicature in tho EastIndies and in the Plantations, Colonies and other Dominions of HisMajesty abroad, an appeal lies to His Majesty in Council ’, and pro-ceeds to regulate the manner of such appeal ; and the Act of 1S44,after reciting that ‘ the Judicial Committee, acting under tho authorityof the said Acts (the Act of 1S33 and an amending Act) hath beenfound to answer well the purposes for which it was so established byParliament, but it is found necessary to improve its proceedings insome respects for the better despatch of business and expedient alsoto extend its jurisdiction and powers enacts (in s. 1) that it shall becompetent to Her Majesty by general or special Order in Council to* provide for the admission of any appeal or appeals to Her Majesty inCouncil from any judgments, sentences, decrees or orders of any Courtof justice within any British Colony or Possession abroad ’. TheseActs, and other later statutes by which the constitution of the Judicial. Committee has from time to time been amended, give legislativesanction to the jurisdiction which had previously existed. ”
In the case of Ceylon, South Africa, and some other countries, the right-of aj>peal to the Sovereign in civil cases was expressly granted and regu-lated by Charter. The first Ceylon Charter was in 1S0I. It establisheda Court of Record called “ The Supreme Court of Judicature in the Island•of Ceylon ” and defined its powers and. jurisdiction, and granted a right ofappeal to the Privy Council to any person—-…
“ •••• aggrieved by any interlocutory Sentence, or Determi-
nation having the Effect of a Definitive Sentence, or by any DefinitiveSentence, of the said Supremo Court of Judicature in the Island ofCeylon, in any Civil Cause, Matter, or Thing whatsoever ”,
1 Kailan v. the Kitxgrjj92G) A. C. dSS'al 49J.
where tho matter in. dispute exceeds five hundred Pounds. After theannexation of the Kandyan Provinces the Charter of 1S01 was replacedby the Charter of 1833, a more comprehensive instrument. It establisheda Supremo Court and District Courts. The latter were empowered tohear and determine—
“ …. all Pleas Suits and Actions in which the Party or
Parties Defendant shall be resident within tho District in which anysuch Suit or Action shall be brought or in which the Act Matter orTiling in respect of which any such Suit or Action shall be broughtshall have been done or performed within such District. ”
Tho Supreme Court was given an appellate jurisdiction for the correctionof all errors in fact or in law which shall he committed by the respectiveDistrict Courts. By section 52 a conditional right of ajipcal to the PrivyCouncil was also granted to—
“ …. a Party or Parties to any Civil Suit or Action dependingin the said Supreme Court …. against any final judgment,Decree or Sentence or against any Ride or Order made in any suchCivil Suit or Action, and having the effect of a final or definitiveSentence. ”
The conditions are almost the same as those in force today except forthe fact that the decision had to be brought up in review before a Collec-tive Court before the application for leave. It is clear from the Charteritself that the right of appeal granted thereby does not exhaust the Sove-reign’s right to admit appeals, for, section 53 reserves the right to admitany appeal, “ from any Judgment, Decree, Sentence or Order ” of theSupreme Court subject to such conditions as may be imposed by thoSovereign. The succeeding legislation did not materially alter the rightof appeal granted by tho Charter of 1S33. In 1SSD the Courts Ordinanceand the Civil Procedure Code made provision for appeals to the PrivyCouncil. The former Ordinance made the following provision whichwas repealed in 1909 when the Appeals (Privy Council) Ordinance wasenacted—
“ Nothing herein contained shall be held to affect tho appeal to HerMajesty in Her Privy Council, graciously granted by the Royal Charterof 1S33 to any person or persons being a party or parties to any civilsuit or action depending in the Supreme Court, against any finaljudgment, decree, or sentence, or against any ride or order mode inany such civil suit or action, and having the effect of a final or definitivesentence, and which said appeal shall continue to be subject to therules and limitations by the said Charter prescribed and hereinafterset out, as follows
Chapter LXIII of the Civil Procedure Code (sections 779 to 7S9), alsorepealed by the Ordinance, while declaring that it shall bo lawful forany party or parties to a civil suit or aetion, to appeal to the Privy Councilagainst any final, judgment, decree or sentence or against any rule ororder made in any such civil suit or action, prescribed the procedure tobo followed in bringing-a judgment in review before tho collective court-prior to obtaining leave to appeal to the Privy Council..
The expression “ civil suit or action ” is one that occurs in the instru-ments granting a similar right of appeal from the decisions of the Courtsof other countries which were under tlio Sovereignty of the British Crown.One such country is South Africa, where the very question has beendecided. It will be helpful to examine tho view taken by the Courts ofthat country in dealing with this matter. The first reported decision isGillingham v. Transvaalsche Koclkamcrs, Bcperktl. In that case thoapplicant’s estate had been finally sequestered by order of a Judge inChambers. From that order he appealed to the Supremo Court, whichdismissed the appeal. Ho then applied for leave to appeal to the PrivyCouncil. It was argued for tho applicant that a decree in insolvency was3 final and definitive sentence given in a civil suit or action. limes, C. J.,in dealing with the matter says at page 9G6 :—
“ Our jurisdiction in regard to the present petition is contained insection 39 of Proclamation 14 of 1903, and we cannot grant leaveunless we are empowered to do so by its terms. The section says thatit shall bo lawful for any person or persons, being a party or parties toany civil suit or action depending in the court, to appeal to His Majestythe King in His Privy Council ‘ against any final judgment, decree orsentence of the said court, or against any rule or order made in anysuch civil suit or action having the effect of a final or definite sentence ’.Clearly, therefore, the only persons to whom this Court can grantleave to appeal arc those who are ‘ parties to a civil suit or action ’here depending. The sequestration proceedings were not an ‘action ’,and ‘ suit ’ seems to me to bo synonymous, or nearly so, with ‘ action ’.
‘ To sue ’ is to bring an action, to demand something— either a decla-ration of rights or an order that the opposing party shall do some-thing or give something to the plaintiff. Tho order against whichleave to appeal is now sought is not an order in a suit or action. ”
In tho same case Solomon J. said :—
“ I agree that there should be no order, on the simple ground thatthe applicant was not ‘ a party to any civil suit or action ’ dependingin this Court. Wc must give those words their ordinary moaning,a nd if WC do it is clear that sequestration proceedings are not a civilsuit or action. ”
The same view was .taken by Ivolzc J.A. in tho subsequent case of<Collier v. liedlcr <C- another where he says :
“ It follows, as I mentioned at the outset, that in order to arrivo attho meaning of tho words ‘ any suit or action ’, occurring in section 50of the Charter of Justice, wc must consider not merely the usual andordinary meaning of the words in question, but go a step further andinquire into tho nature of tho subject-matter and tho object of theCharter as well. The nature of the Charter is easily ascertainablefrom a pc-rusal of its various provisions, while two of its main objectsare to establish a Supreme Court of Justice for the Colonv of tho Car.e-of Coed Hope, and to provide for an appeal to the King-in-Com a-il.
1 (100S) Transvaal Law Reports Supreme Court 004.
: (1923J A. D. 640 at 049.
In section '50 of the Charter such «m appeal is allowed, not in everycaso or instance, but only in certain instances, namely, from any finaljudgment or sentence, or from any ^ule or order having' the effect of afinal definite sentonco, in any civil suit or action above the value of •£500. An appeal is here given as of right, provided the final judgmentor order has been made in a civil suit or action of the prescribed value.There is nothing in this section, nor in the context contained in othersections, to show that we are to construe the words * suit or action ’in a sense different from their usual ordinary meaning, as denotinginstances where the proceedings commence with the issue of a writ ofsummons. The section does not speak of every case or proceeding,but only of any suit or action ; and there appears to be no furtherprovision of the Charter indicating that wc are here to depart from therecognized rule of construction and arc not- to assign the ordinary andcommon meaning to the words employed, in order to arrive at their-intention. I find nothing in the Charter, nor in its object, leading tosuch a conclusion. On the contrary, the object of the Charter is evi-dently to limit the right of appeal, not mei ely as to the amount involvedin the suit or action, but also in regard to the nature of the cause ordispute. It is clear there is to be no appeal in simple interlocutoryor provisional proceedings ; and similarly, I do not think that anyright to appeal is intended in any matter brought before the SupremeCourt by way of motion, petition or application, or in any other mannerthan by means of a suit or action, however final or definite an ordermade therein may be. If the intention had been otherwise, it is by nomeans unreasonble to suppose that language clearly manifesting suchan intention would have been used. If we refer to section 51 of theCharter, we find other and wider language employed than in section 50.While section 50 limits the right of appeal to any civil suit or action,section 51 reserves the right of the Sovereign in His Privy Council togive leave of appeal to any one ‘ aggrieved by any judgment or determi-nation of the said Supreme Court It is difficult to hold that tho'right here reserved is likewise limited to a judgment or determinationin a civil suit or .action, and has not a wider meaning.
“ At the time of the granting of the Charter (1S32), the orclinaiydistinction between a suit or action, that is the procedure commencedby writ of summons, as opposed to matters commenced by motion,application or petition, was well recognised in England, as it still is atthe present day, and also prevails in our practice, as we may ascertainfrom the various Rules of Court, which have been framed by the judgesand promulgated under the power conferred by section 40 of tho Charterand subsequent Acts, and also from the statute law itself. ”
Eater on, in the course of the same judgment, Ivotze J. A. says :—-“ No doubt the word petition may, like the term suit or action, havemore than one meaning, and tho word suit, again, may be used in asense different from an action at law. . Thus wc could, with proprietyspeak of a suit in chancery, where the procedure was by means of abill, and of a suit in tho Matrimonial Court, where the proceedings takeplace by means of a petition. But that is not the case in the presen
instance. The word suit occurring in section 50 of the Charter issvnonymous with the word action, and excludes .an application bymeans of a petition. ”
In tlic later case of Colicll v. Priest1 in which this very same questioncame up for consideration, De Villein, C. J.,' after reviewing the previousdecisions says at page 29S :—
“ And wo arc therefore of opinion that the Cape Provincial Division,while freely giving its reasons for holding a different view, should havefollowed the ratio decidendi of Collier v. Hcdler, The Master v. vanAardl and JJulawayo Municijiality v. Roberts, namely, that the essentialfeature of a ‘ suit or action ’ under section 50 of the Charter of Justiceor under section 39 of Transvaal Proclamation 14 of 1902, or of a‘ suit ’ under section 24 of Cape Act 35 of 1S96, is that it is a proceedingin which one party sues for or claims something from another, and thatno proceeding which lacks this feature, such as sequestrationproceedings, an application for winding up of a company etc., can beproperly described as a 1 suit or action ’ or as a ' suit ’ under any ofthese sections. ”
This matter was further considered in Solomon v. Law Society of theCape of Good Hope-, where the question whether an application by theDaw Society to have an attorney struck off the roll was a civil suit oraction came up for decision and 1 Vessels C. J. held Unit it was not. Jfcsaid at page 40S :—
t: It is difficult to sec what the civil suit or action is, in the ease ofan application by the Daw Society which sets before the Court certainfacts and asks t-hc Court to strike the Attorney off the- roll. The factthat by section 3 of Act 20 of 19IG the Court may order thatany question of fact shall be tried by pleadings cannot make thea.pplieat ion a civil suit or action. The pleadings arc only a means todefine the question of fact to be tried by the Court. ”.
As the South African Reports arc not available in most of our Jawlibraries 1 have cited more extensively than I would otherwise have doneIt is c-lcar from tlic South African decisions I have examined that inthat- country the words " civil suit or action ”, in a context such as theone we have here, have been consistently understood in their ordinarymeaning, viz., a proceeding in which one party sues for or claims somethingfrom another.-
I shall now examine our decisions on the point. In the earliest of oureases, In re Led ward 3, a decision of the collective Court, it was held thatsection 52 of the Charter of Justice gave no right of appeal to the PrivyCouncil against a judgment of this Court affirming a judgment of theDistrict Judge that an insolvent had not committed a fraudulent pre-ference within the meaning of section 5S of the Insolvency Ordinance.
* (1031) A. D. 230.
3 (ISoO) 3 T.orcn- 231.
3 (1031) A. D. 401.
It was aigued in that ease that the proceedings in which the matter wasdecided was a regular suit ” between a creditor and the assignees of the
debtor; and that though the matter was discussed in insolvency pro-ceedings it was none tho less a “ civil suit or action ” within the meaningof those words in the Charter of 1833. It was also urged that there was afhgiilar dispute between the two parties regarding certain property, inwhich evidence was heard, and a judgment given thereon, as in anyordinary suit. In the course of the argument Rowe C.J. observed :
“ The only question is whether this is a ‘matter ’ora' suit or actionThe 32nd section of tho Charter limits the appeal to ‘ suits or actions'only. ”
The application for leave was rejected on the ground that the Chartergave no right of appeal in a ease such as that before the Court..
. This decision was followed in tho case of Keppe.l Jonas <0 Go. 1. Thatwas also a decision of the collective Court in proceedings under the In-solvency Ordinance in which this Court affirmed an order of the DistrictCourt in which the assignee was directed to deliver one half of certaingoods found in possession of the inslvent.
Xext we have the case of H. W. de Vos 3. In that case the DistrictJudge refused to grant a certificate of insolvency on the ground that thoinsolvent had not made a full disclosure of his affairs, and that judgmenthaving been affirmed by this Court the insolvent sought to appeal to thePrivy Council. Ho asked for a certificate under section 7S1 of the CivilProcedure Code that the case fulfilled the requirements of section 42of the Courts Ordinance. The certificate was refused by tho two Judgeswho heard tho case ; Lawrie J. based his decision on tnc ground that thematter at issue was not of the value of Rs. 5,000, and Brown A. J. oil theground that no case had been submitted to the Court in which the lightof appeal to the Privy Council had besn recognised in the matter of therefusal of a certificate of conformity.
Tho next case that is relevant is Socknlingam Chelly v. Manilam el al*.That was also a case under the Insolvency Ordinance. This Court holdfollowing tho previous decisions I have cited above that there was noright of appeal. Drieborg J. observed r—
.“ Section 52 of the Charter of 1833 gives a right of appeal against
any final judgment, decree, sentence, rule or order in any civil suit oraction, and it has been held by the Collective Court in appeal that an_ insolvency proceeding is not a civil suit or action and that there is no -right of appeal against the judgment or order of tho Supreme Courtmade in it.
Xcxt in order of time is the caso of Socrlsz v. Colombo MunicipalCouncil 5. The question was whether there was an appeal to tlie PrivyCouncil as of right from the decision of the Supreme Court- on a casostaled under section 92 (now 9-1) of the Housing and Town ImprovementOrdinance. After referring to tho relevant provisions of the Charter of1833, and the Courts Ordinance, Fisher C. J. went on to say :
’“ In dealing with the matter under consideration tho Supreme Court
was not acting in exercise of tho appellate jurisdiction-vested in it by
(IS77} Jtamanalhun 370.* [Repealed by Ordinance A'o- 31 oj 1000.)
3 USOO) 2 Browne 331.* [1030) 32 K . L. R. 65.
s [1030) 32 N. L. R. G2.
the Courts Ordinance, I8S9, nor was the District Court acting in exor-cise of any jursidietion vested in it by that Ordinance. The DistrictCourt vras not in fact acting as a Court of law at all but was performinga function vested in it because the alternative tribunal under sectionS3 of Ordinance No. 19 of 1915 has not been brought into existence,and in the performance of that function it is a final tribunal exceptwhen a question of law is involved and the provisions of section 92(now 94) are put into operation.
“ In ray opinion, therefore, our decision on the point of law submittedto us was not a judgment or order in * a civil suit or action ’. ”
In the case of Jt31.AIi.A12.JiJ/. v. The Commissioner of Income Tax 1,It was argued that a case stated uiider tbs Income Tax Ordinnce was*c a civil suit or action ” within the meaning of that expression in section 3of the Ordinance. But that argument was not upheld by this Court.In the case of Settlement OJJiccr v. van der Poorlen et at. , it was held thatproceedings under the Waste Lands Ordinance did not fall within theambit of the words “ civil suit or action ” in section 3 of the Ordinance.The earlier view that civil suits or actions that fell within the ambit ofsection 3 were only those civil suits or actions which the District Courthad jurisdiction to hear and determine, when exercising the jurisdictionconferred on it by the Courts Ordinance,, was upheld. Although invan der Poorlen v. The Settlement Officer 3 the Privy Council set aside thodecision of this Court, that an appeal did not lie from the District Courtagainst a dismissal of a petition under section 20 of the Waste LandsOrdinance, Aro. I of 1S97, it did not hold that such a proceeding was a;; civil suit or action ” within the moaning of that expression in theOrdinance.
As against this long lino of decisions of this Court which hold thatsection 3 applies only to civil suits or actions properly so called, we havethe decision of In re Goonesinha 1 which takes a different view. It wasthere held that an application for a mandate in the nature of a writ ofcertiorari constituted an action and therefore camo within tho ambit ofsection 3. In that case this Court refused to grant a mandate in thenature of a writ of certiorari’ to bring up before it tho proceedings takenbefore an election Judge. 3foscIcy J. while conceding that the Avoid“ suit ” implies the existence of two parties went on to hold that thesame cannot be said of an action and based liis decision on section G of theCivil Procedure Code which reads :—
“Every application to a court for relief or remedy obtainable throughtho exercise of the court’s power or authority, or otherwise to im-itcits interference, constitutes an action. ”
31c summed up his decision thus :—
“ I have little difficulty in arriving at the conclusion that an aonli-■ cation for a writ of certiorari, being an application for relief or remedy
(194C) 47 N . L. R. 217.*■ (1942) 44 N. L. R. 75.
obtainable through, the Court’s power or authority, constitutes ait.action, and therefore comes within the compass of section 3 of Cap_85. ”
With great respect I find myself unable to agree with the conclusionof tlio learned Judge. A writ of certiorari is not a means of obtaining anyrelief or remedy through the Court’s power or authority. It is a purelysupervisory function of the Court, while section G of the Civil ProcedureCode contemplates an entirely different function. In my view it wouldbe wrong to read section 6 by itself without reference to the other pro-visions of the Civil Procedure Code. To my mind section G when readwith the other sections of the Civil Procedure Code leaves no room for theview that a writ of certiorari falls within the definition of action in theCode. Moseley J. relied on the case of Subramaniam Ckelly v. Soysa 1.That was a ease in which this Court allowed an appeal from an order ofthe District Judge under section 2S2 (2) of the Civil Procedure Coderefusing to set aside a sale in execution on the ground of a material irregu-larity in conducting the sale. That section provides that the purchaserat an execution sale shall be made respondent to the petition filed by theapplicant under sub-secton (2) thereof seeking to have the sale set aside.It is clear from the section that the proceeding thcrerindcr is an appli-cation to the District Court for relief or remedy obtainable through theexercise of the Court’s power or authority, and section 6 declares thatsuch an application constitutes an action. When an application for leaveto appeal to the Privy Council was made it was contended that the pro-ceeding was not a civil suit or action and that there was no final judgment.Derfcram C.J. in dealing with the objections stated :—
“ Was this proceeding a suit or action ? In determining that question,we must have regard to the nature of Ordinance No. 31 of 1909. It isintended to supplement our Code of Civil Procedure. It would be highlyinconvenient if the word ' action ’ in this Ordinance were given adifferent meaning from that which is given to it in our Code of CivilProcedure. Put there is a further reason. The principal sectionsof this Ordinance replaced and re-enacted certain repealed sections ofour Code of Civil Procedure, and there is a very strong inference thatthe words used in an enactment so passed should have the same meaningas they bore in the sections which the enactment replaced.
“ Now, in our Code of Civil Procedure, a very wide meaning is givento the word ‘ action ’. In section 5 ail action is defined as a proceedingfor the prevention or redress of a wrong. In section 6 it is said thatevery application to a Court for relief or remedy obtainable throughthe exercise of the Court’s power or authority, or otherwise to inviteits interference, constitutes an action. It seems clear to me, therefore,that this application to the Court to set aside tho sale instituted bya petition to tho Court was an action within the meaning of section 4. ”
In my opinion Subramaniam Chclly v. Soysa {supra) is not an authoritywhich supports the view that a writ of certiorari is a civil suit or action.In the case of Controller of Textiles v. Mohamad 4/iya – an application for
* {1925) 25 A*. A. It. 311.‘? {19IS) 19 -V. L. It. 105.
leave to appeal to the Privy Council was granted by this Court from anorder quashing the decision of the Controller of Textiles who had revokedthe licences granted to 3Iohamed 3Fiya. In that case, however, thequestion whether the proceeding in which the writ was granted was acivil suit or action did not arise for decision. But the question was raisedin the subsequent case of Kodakan Pillai v. M udanayakeIn that case
Nagalingam J. rested his decision on the following definitions of the termc: action ” in Justinian and Braeton :
“ Aclio aulem nihil aliud cst, quam jus pcrscquQndi in judicio, quodsibi debetur. ”—An action is nothing else than the right of suing beforea Judge for that u hi eh is due- to us.
“ Actio nihil aliud cst quam jus prosequendi in judicio quod aliquodebetur. ”—An action is nothing else than the right of suing in a Courtof justice for that which is duo to someone. ”
After citing theso definitions ho proceeded to say :
“ That which is due to us or someone ’ is wide euougli to include thecase of a declaration of status.
. “ Even on the basis of these general concepts of the term ‘ action ’the order made upon the application for a Writ of Certiorari cannotbut be regarded as one relating to an action. ”
With great respect I am unable to agree with the learned Judge’s con-clusion or reasoning. When this Court granted a mandate in the natureof a writ of certiorari quashing (he order of tho Revising Officer it did notmake a declaration of status. The conclusion of Nagalingam J. that pro-ceedings for t he grant of a writ of certiorari are an action is based on t hewrong assumption that it did make such a declaration.
It is clear f rom what has been said above that the one thing a petitionerdocs not do in a petition for a mandate in the nature of a writ of certiorariis to ask “ for that which is due to him On a close reading of thodecision of Nagalingam J., I am unable to regard his judgment as holdingthat an applicant for a writ of certiorari is a party to a civil suit or action.
JIc docs not go beyond holding that the order made upon tho applicationfor a writ of certiorari can be regarded as one relating to an act ion.
I now coiue to the decision of Gratiaen J. in Attorney-General r.Jlaniastcami Iyengar-. It is of little assistance to the petitioner in theinstant ease. That was a decision under the Estate Duty Ordinancewherein under section 3-1 an appeal lies to the District Court from anassessment to estate duty. Section 40 provides that—
Upon the tiling of the petition of appeal and the service oT a copythereof on the Attorney-General, the appeal shall be deemed to be andmay be iiroeecded with as an action between the appellant as plaintiffand the Crown as defendant, and the provisions of the Civil Procedure. Code and of tho Stamp Ordinance, shall, save as hereinafter provided,apply accordingly.
“ Provided that no pleading other than the petition of the appellantshall be filed in any action unless the court by order i-nado in that actionotherwise directs ;
“ Provided further, that the decree entered in any action shall specifythe amount, if any, which the appellant is liable to pay as estate dutyunder this Ordinance. ”
It is evident from the section I have quoted that an appeal to the DistrictCourt is not an action, for, if it were, it would be unnecessary to declare"by statute that it shall be deemed to be and proceeded with as an actionbetween the appellant as plaintiff and the Crown as defendant.
The Privy Council case of Commissioner of damps, Sirait.s Settlements v.Oei Tjong Swan 1 relied on by Gratiacn J. as a decision in point cannotbe regarded as an authority on the question arising in the case, not onlybecause the matter was not fully argued as the Privy Council grantedspecial leave to appeal, but also because the expression which the Privy■Council was called upon to interpret was “ civil cause ” and not “ civil■suit or action ”. On this point this is what Lord MacMillan who deliveredthe Judgment of the Board says at page 392 :—
“ Passing to what has been designated the procedure appeal, theirLordships have to consider whether it was within the competency ofthe Court of Appeal to grant leave in this case to appeal to His Majestyin Council. In holding the contrary, the learned Chief Justice statedthat lie did so ‘ reluctantly and against his own opinion ’ in deferenceto a previous decision of his Court in a case of The King on the Prose-cution of the Income Tax Commissioner v. The Firms of A. I?. A. HI.■and P. A. in 1922, which he felt himself constrained 1 from courtesyrather than conviction ’ to follow. Thorne J. shared the reluctanceof the Chief Justice, while Sproule S.P.J. alone championed thesoundness of the authority so manifestly distasteful to his colleagues.
“ Their Lordships did not have the advantage of a full argument onthe question, as the respondents, not having any interest in the matter,in view of the special leave to appeal granted by order of His Majestyin Council, did not feel called upon to contest the appellant’s submission.The whole ground, however, is adequately explored in the judgment ofthe learned Chief Justice, whose convincing argument against thedecision which he reluctantly reached appears to their Lordships reallyunanswerable. It is true that the Ordinance in section SO which dealswith appeals from decisions of the Commissioner does not confer aright of appeal to His Majesty in Council. But the Colonial Charterof 1S55 provides for leave to appeal being granted by the Court ot theColony from ‘ all judgments, decrees, or determinations made by thesaid Court of Judicature in any civil cause ’. And section 115-t of tiioCivil Procedure Code provides that subject to certain conditions ‘ anappeal shall lie from the Court of Appeal to His Majesty in Council—[a) from any final judgment or order. ’ Wider language it- would be
» 11033) .4. C. 3TS.
difficult to imagine. Tlieir Lortlships do not think it necessary torepeat tlic reasons adduced by the Chief Justice against excluding thedecision of tlic Appeal Court in the present instance from the scope ofthese provisions and content themselves with expressing their agree-ment. The decision against which the Commissioner sought to obtainleave to appeal was in their Lordships” view not a mere award of anadministrative character but a judgment or determination made bythe Court in a civil cause within the meaning of the Charter and afinal judgment or order within the meaning of section 1154 of the-Civil Procedure Code, and as such the Court could competently havegranted leave to appeal from it to His 3£ajesty in Council. ”
It would appear from the decisions of this Court referred to abovethat for over a hundred years this Court had consistently interpretedthe words “ civil suit or action ” in section 3 of the Ordina nco in their-ordinary sense of .a proceeding in which one party sues for or claimssomething from another. The current of authority in South Africa wheresimilar words in enactments such as our Charter of Justice were inter-preted has been tho same as in Ceylon till 1942. liven where the proceed-ings were in tho naturo of an action the Privy Council in the RangoonBotaloung Company Ltd. v. The Collector, Rangoon 1 refused to give leaveto appeal bocause tho proceedings were in the nature of an arbitration,and lacked the characteristics of an action as ordinarily understood.
In my opinion the correct approach to the interpretation of tho ex-pression “civil suit or action” is to be found in tho decisions of thisCourt j>rior to Goone-sinha’s case. It is a rule of construction of statutesthat tho moaning which is to be given to an expression in any particularonactinent will depend upon such circumstances as the occasion or pur-pose for which it is used, the nature of tho subject matter, tho context-of tho enactment in which it occurs, and tlic like. Tlic word “ action ”has been used by different writers commencing with Justinian down totho jiresent day in so many different senses that it would bo unsafe to-consider tho words “ civil suit or action ” in the abstract. Tlic meaning:given to it in Roman Law or by early Roman, Roman-Hutch, and English,writers cannot bo applied without regard to the intention of the legislatureand tlic object for which the statute was enacted together with, in theinstant ease, tho previous history of legislation on tho subject.
Goonesinha’s case not only goes against tho current of decisions of thisCourt from the time of tho Royal Charter of IS33, but also goes againstthe well-known rules of interpretation of statutes. The words “ civiLsuit or action ” have been used in legislation regulating appeals to thePrivy Council since tho earliest times hero as well as elsewhere, and by1907 the year in which the Ordinance was enacted their meaning was wellestablished by judicial interpretation. It is a rule of construction ofstatutes that when words in an eai’licr enactment which have been judi-cially interpreted are used in a subsequent enactment in jmri materiait must be presumed that they have been used in the sense in which they
have been judicially interpreted. There is nothing in tho Ordinance whichrebuts that pregumption. Besides, where the meaning of a word in’ anearlier legislative instrument has been well established by judicial inter-pretation, I do not think that it would be correct to extend it byreference to a definition of that same word in a later enactment notin jjciri materia.
I have stated abovo why I am unablo to agree with Gooncsinha'scaso and tho subsequent case of Kodakan Pillai. I make no mentionhero of MoJiamed J1 fiya’s case because it does not deal with the particularmatter under consideration.
I think I should not omit to refer to the case of Prad laugh v. Clarke especially as Nagalingam J. Iras relied upon it in his judgment in tho caseof Kodakan Pillai. In that case the Court had to interpret the word“ action ” in section 5 of the Parliamentary Oaths Act, 1S66 (29 and 30Viet. c. 19) in the context “ to be recovered by action in one ofHer Majesty’s Superior Courts at Westminster ”. The plaintiff as acommon informer claimed that lie was entitled to sue for the penalty.His action was opposed on the ground that all penalties imposed by statutobelong to the Crown alone unless given in precise terms to an individual.In dealing with this argument Lord Selborno after referring to tho-authorities stated at page 361 :—
“ These authorities appear to me to prove that a suit to recover sucha penalty as that incurred by tho appellant might, in and after 1S6G,have been brought by the Crown in any one of the Superior Courts at. Westminster, and consequently that the option given to sue in anyono of those Courts cannot be a sufficient reason for letting in a commoninformer under a statute by which a right of action is not otherwisegiven to him. I am also satisfied after.full consideration that the word‘ action ’ is (as Lord Justice Lush said) a generic term, inclusive, in itsproper legal sense, of suits by the Crown, and, therefore, not furnishingany sufficient ground for implying a right of action in a commoninformer. That it is used as nomcn gencralissimum ” in this particularstatute seems probable, from the fact that it stands there alone, withouthaving superadded to it a number of other technical terms, whichare usually found associated with it in earlier statutes. ”
The words I have underlined clearly indicate that the meaning given-to the word “ action ” in that case was meant for the particular contextin which it occurred. The learned Law Lord did not attempt to lay downa definition for all purposes.’ In fact the judgment of Lord Blackburnrecognises that the word “ action ” has more than ono mcaning.dcpcndingon the context in which it occurs .and that in its ordinary sense an actiondenotes a mode of procedure commenced by writ of summons.
Tho learned Attorney-General argued that each application for-certiorari should be examined, and if it- has the characteristics of a civil
suit or action, an appeal M ould lie; if it has not, thcro would be no appeal.Ho also invited our attention to the cases of Secretary of Stale for India v.Chelihani Rama Rao , Rangoon Bolaloung Com pan y Ltd. v. The Collectorof Rangoon – and Tala Iron <0 Steel Co. Ltd v. Chief Revenue Authority of.Bombay
The lirst of theso cases deals with claims to land by two Zamindarsunder the Madras Forest Ac t (V of 1SS2). The claim was rejected by theForest Settlement Officer. The Zemindars appealed to the High Courtwhich remanded the appeal to the District Judge to determine whetherthe Crown had a subsisting title at the elate of the notification. On thefinding of the District Judge the High Court allowed the appeals aucldecrees wore passed excluding the lands from the reserved forest area.The Secretary of State for India then appealed to the Privy Council.Objection was taken to the appeal being entertained by the Privy Council.That object ion was over-ruled. The reason is thus stated by Lord Shawat page 197 :
“It was contended on behalf of the appellant that all further pro-ceedings in Courts in India or by way of appeal were incompetent,these being excluded by the terms of the statute just quoted. In theirLordships’ opinion- this objection is not well Founded. Their viewis that when proceedings of this character reach the District Court,that Court is appealed to as one of the ordinary Courts of the country,with regard to whose procedure, orders, and decrees the ordinary rulesof the Civil Procedure Code apply. This is in full accord with thedecision of the Full Bench in Kamarcju v. Secretary of Stale for Indiain Council (T. L. R-. II Madras 309), a decision which was given inI S.SR and has been acted on in Madras ever since. ”
Referring to the Rangoon Bolaloung Company c.asc which therespondents relictl on. Lord Shaw said at page 198 :—
4
“ The merits of the present dispute are essentially different incharacter. The claim was the assertion of a legal right to possessionof and property in la ml ; and if t-lio ordinary Courts of the country aroseised of a dispute of that character, it would require, in the opinionof the Board, a specific limitation to exclude the ordinary incidents oflitigation.
I have already referred to the Rolaioang case and shall therefore makeno further reference to it. The Tala Iron <0 Steel Company case is ofsome assistance. There it was held that an appeal to the Privy Councildocs not lie under Clause 39 of the Letters Patent of the Bombay HighCourt from a decision of the High Court upon a caso stated and referredto the Court by the Chief Revenue Authority under section 51 of theIndian Income Tax Act, 19IS.
Lord Atkinson who delivered the Judgment of the Board dealt with,the matter in this.wise at page 150 :—
“ In order therefore that the appeal in this case should be held to be-competent, the decision and order of the High Court under section 51of the Incomo Tax Act must como within Clause 39 of the Letters-Patent. It must be cither a final judgment or a final decree or a finalorder. Now what is a final judgment as understood in English liti-gation ? In Exparle 2Ioore (1SS5) 14 Q. B. D. 627, 632), Lord Sclbornelaid down that to const-ituto an order a final judgment, nothing more isnecessary than that there should bo a proper litis contest at io and a finaladjudication between the parties to it on the merits.
“ In Onslow v. Commissioners of Inland Revenue (IS90) 25 Q. B. D'4G5 it was determined on high authority what it is that amounts to afinal judgment. …
“ Lord Esher delivered tlio judgment of t-ho Court. After quotingthe opinions of several authorities, which as the judgment is printed itis not easy to distinguish from portions of his own judgment, herefers particularly to opinions expressed by Cotton L.J. in Ex parte-Chinery—(1SS4) 12 Q. B. D. 342—with which Bowen and Kay, L. JJ.had concurred. Ho said :
‘ I think wo ought to give to the words “ final judgment ” in tliie-sub-sect-ion their strict and proper meaning i.e. a judgment obtainedin an action by which a previously existing liability of the defendantto the plaintiff is ascertained and established, unless there is some-thing to show an intention to use the words in a more extendedsense . ’
Ho proceeds—
‘ Brown, L. J. says thcro is an inherent distinction between judg-ments and orders, and that the words “ final judgment ” have a pro-fessional meaning, by which expression I think ho meant to say as-Cotton L. J. had previously said, that- a judgment is a decisionobtained in an action, and if that- was his meaning, both these learnedLords Justices gave judgment to the same effect, and Fry L. J.agreed with him. A “judgment ”, therefore, is a decision obtainedin an action, and any other decision is an order. … That
in my opinion is a proper distinction, and, therefore in the presentcase the decision is an order and not a judgment, and the appealshould have been brought within 21 days. Under the circumstances,however, we will, as an indulgence, extend tho time forappealing. ’
“ This decision clearly establishes that the decision and an ordermade by the Court under the 51st- S. of the Income Tax Act cannotbo held to be a ‘ final judgment1 within the meaning of t he 39th clause-
of the Letters Patent, since there is nothing to show an intention inthe year ISG2 to use those words in a sense more extended than theirlegal sense. ”
The above decisions of the Privy Council confirm me in the opinion£ have formed that the words “ civil suit or action ” in section 3 of theOrdinance should be construed in their ordinary sense of a proceedingin which one party sues for or claims something from another in regularcivil proceedings and that an application for a writ of certiorari docs notfall within the ambit of those words in the context in which theyoccur.
The objection therefore succeeds and the application is refused withcosts.
GuxaSekara, J.—T agree.
Pcr.r.K , J.—
I agree that the application for Icavo to appeal to the Privy Councilshould bo refused. .At one stage of the argument I was inclined to acceptas correct the decision of a bench of two Judges in In re GoonesinJiathat an application for a writ of certiorari constitutes an action whichfalls within the ambit of section 3 of the Appeals (Privy Council) Ordi-nance. This case was followed by a single judge in Kodalcan Pillai v.Jfudanai/ake ~. Upon further consideration of the nature of a writ ofcertiorari and the decisions from South Africa cited by my Lord, the ChiefJustice, I am convinced that the proceedings taken to quash by certiorarithe order of the Tribunal of Appeal dated the 10th October, 1952, do notconstitute a civil suit or action within the meaning of section 3 of theOrdinance. In my opinion section 3 cannot bo read to include a rightof appeal to the Privy Council from every judgment or order of thoSupreme Court in what may be described as a civil cause or mattersatisfying the requirements in Pule 1 of the Schedule to theOrdinance.
There are undoubtedly features in common between a “ civil suitor action ” and proceedings in certiorari. It may happen, in certaininstances, that a decision given on an application for certiorari wouldfinally, dispose of tho litigation beforo tho tribunal whoso jurisdiction ischallenged. But that is not a result that flows necessarily from theexercise of the jurisdiction of the court to grant a writ of certiorari.In its essence this jurisdiction is of a limited character the exerciso ofwhich does not in the least diminish or tako away’ from an inferiortribunal the power to adjudicate on a matter within its properjurisdiction.
– {10-51) 34 N. L. R. 3-50.
I fully concur in tho observations made by my Lord on SubramoniamChetly v. Soysd1, Abbot v. Sullivan Lee v. Showmen's Guild of GreatBrita in 3 and O 'Connor v. Isaacs and others J.
3*)k Silva , J.—I agree.
Sa xxox i. J.—
I should have preferred to wait until I had seen the judgments of theother members of the Court, for such a course may have rendered itunnecessary for me to write a separate judgment, lint as X shall be goingaway on long leave in a few days I am compelled to state my viewswithout delay, and T shall do so very briefly.
Mr. Perera’s submission was that no application for a writ of certiorarican ever be a suit or action because on such an application the Court docsnot adjudicate on the legal rights of parties and it does not thereforedecide whether a 1 cgal right has been infringed or a wrong committed.He stressed that the petitioner for the writ did not claim that it had a legalright solely to pick up and set down passengers within the Municipallimits of Kandy. He submitted that the only matter which the petitionerhad to establish in order to obtain the writ was that it had an interest■which went beyond the interests of the pvblic in general, in that it hadsuffered damage, and that the tribunal had exceeded the limits of itsjurisdiction.
The Attorney-General submitted that each application for a writ ofcertiorari must be examined in order to ascertain whether it was a civilsuit or action, and he pointed out that a stranger who applies for the writon the ground that a Court had exceeded its jurisdiction would not bein the same position as a party aggrieved, in the sense of one who liassuffered some damage from the usurpation of jurisdiction.
Mr. Jayawardenc submitted that the infliction of damage (whichMr. Perera’s client had complained about) coupled with the usurpation ofjurisdiction by the tribunal, which were the two elements on which theapplication for this writ was based, constituted a wrong done to the partycomplaining. In this case these two elements formed the basis of thepetitioner’s application, and the proceeding fell within the phrase " civilsuit or action ”.
‘ {1923) 23 X. E. Ji. 34J.* (1932) 1 All E. Ji. -220.
(1932) l All E. It. 1173.
(1930) 2 II'. L. It. 3S3.
An action in the narrowest sense is a proceeding, founded upon a legalright-, brought by one person against another for the enforcement of thatright. But in a broader sense an action may be defined as a proceedinginstituted by a person in order to obtain the intervention of a Court oflaw, when such person is seeking relief through that Court. It is in thissense that I would include this certiorari application within the termaction. I think that an ultra vires decision of a statutory tribunal whichtries something which it- has no jurisdiction to try, or again a decision
made i>v sucli a tribunal in contravention of the principles of naturaljustice, where such a decision causes damage to a person, constitutes awrong for which that person can seek his remedy by Certiorari, and theapplication for the writ is an action.
Jt mailers not whether the- remedy is sought by injunction or by adeclaratory action or by AVrit of Certiorari : each such proceeding wouldhe an action. In this matter the petitioner expressly claims to be a partywho has suffered damage through an usurpation of jurisdiction by thetribunal, and that is enough to give a Court jurisdiction to hear hiscomplaint and give relief.
I therefore take the view that an application for certiorari falls withinthe meaning of the word " action " provided such application is made bya party aggrieved who has suffered damage by an unwarranted exerciseof jurisdiction. In Volume 2 of Wood Renton’s Encyclopaedia of theLaws of England (Second Edition) at page G19 there appears the followingpassage in the article on certiorari : '‘Though the writ of certiorari is nmeans of preventing the injlicdon or continuance of any wrong by an un-warranted assumption of jurisdiction, the granting of tho writ at theinstance of a private person is a matter of discretion, and not ex debt tojustitine. ” In Abbott v. Sullivan Denning, L. J., said “ In the case ofstatutory tribunals which depend for their jurisdiction on a statute, itis an actionable wrong for thc-m to usurp more than the statute givesthem”. After citing certain cases the learned Lord Justice said: •'Thesecases all show that an invalid usurpation of jurisdiction which causesdamage is itself a■ wrong ”. See also rt. v. St. Edmundsbury 2 where theallied writ of prohibition was considered and it. was referred to as a remedyfor the injury of encroachment- of jurisdiction.
It would therefore seem that damage combined with excess of juris-diction constitutes a wrong for which the remedy lies in certiorari, and itis not necessary in a case where such damage lias been caused that thereshould also have been a previously existing legal right which has beeninfringed.
It is true that in an application for certiorari there are not two or moreadversaries involved in a dispute over their legal rights, such as one findsin a regular action. In certiorari, one may find that the only partiesarc the petitioner and the tribunal whose jurisdiction is in question,though other persons whoso interests arc involved may be added(as Mr. Jayawardene’s clients were added). The substantial question tobe answered in deciding whether it is an action or not- remains thesame.
Even if an action be regarded as "a proceeding in which one partysues for or claims something from another ” a petitioner in certiorariclaims as against tho tribunal a declaration that it has exceeded its juris-diction and that its order should be quashed. The object of the writis to demolish the order made without, or in excess of, jurisdiction. It
' (1017) 2 .1. E. It. 170.
is put out of tlio "way “ as one which should not be used to the detrimentof any of the subjects of Her Majesty ” per Lord Cairns L. C., in WalsallOverseers v. IS. <fc N. IK. Ry G. *.
As X think it is essential that in an action the plaintiff or petitioner mustseek some relief and should be in the position of a person who has a griev-ance, I consider that an application for certiorari by a person who is nota party grieved is not a suit or action, because in such a case the applicantcannot be said to be claiming any relief for himself. If the petitionerin this matter had not been a party who was adversely affected by thetribunal’s order, in my opinion it would not havo been a party to a civilsuit or action.
Mr. Porc.ra submitted that air action needs a cause of action. I thinkin this case the cause of action comprised the damage suffered by thepetitioner taken together ■with the alleged unlawful exercise of juris-diction, and it is the combination of these two things w'hich constitutesthe wrong for the relief of which the petitioner came into Court.
I would therefore grant this application for leave to appeal, with costs.
Application, refused.
1 (1S7Q) 4 A. C. 30 al 30.