068-NLR-NLR-V-73-THE-SINHALESE-FILMS-INDUSTRIAL-CORPORATION-LTD-Petitioner-and-H.-M.-C.-MADAN.pdf
The Sinhalese films Industrial Corporation Ltd. v. Aladanayakt
SS9
1969Present: Sirimane, J., and de Kretser, J.THE SINHALESE FILMS INDUSTRIAL CORPORATION LTD.Petitioner, end H. 51. C. MADANAYAKE, RespondentS. C. 31S/69—Application for Conditional Leave to appeal to thePrivy Council
Appeals (Privy Council) Ordinance (Cap. 100). Schedule, Ilule I (a)—“ final
judgment ",
Plaintiff's claim fur specific performance of an agreement for the sale of certain- immovable property was dismissed by tho Supremo Court on appeal, and thoeaso was sent hack to tho District Court with directions to assess tho amount towhich tho plaintiff would bo entitled ns compensation in respect of improvementseffected by him on the property.
Held, that the judgment of tho Supreme Court was a final judgment withinthe meaning .of Rule 1 (a) of tho Schedule to the Appeals (Privy Council)Ordinance and that the assessment of the amount of compensation was only asubsidiary matter.
!*•—3 18701(11/70)
300
SIRIMAXT3, J.—The Sinhalese Films Industrial Corporation Ltd. t>.
Hl'adanaijake
Application for conditional leave to appeal to tho Privy Council.
J. Fernando, for the plaintiff-petitioner.
II. IF. Jayewardene, Q.C., with Ben Eliyalamby, for tho defendant-respondent.
Cut. adv. vult.
October 4, 1969.- SmptAXE, J.—
This is an application for Conditional Leave to appeal to tho PrivyCouncil.
The plaintiff claimed that ho was entitled to specific performance ofan agreement for the sale of immovable property. That was his principalclaim. In tho event of that claim being disallowed, he prayed forcompensation for certain improvements that he had effected on theproperty of which he was in possession.
The District Court held that the plaintiff was entitled to specificperformance and, therefore, did not assess the quantum of compensationto which the plaintiff might have been entitled had the plaintiff’sprincipal claim failed.
In appeal, this Court reversed the finding of the District Court andheld that the plaintiff was not entitled to claim specific performance.A decree has been entered on that basis. This Court also decided on theimprovements for which the plaintiff was entitled to compensation andsent the case back to the District Court with directions to assess theamount to which tho plaintiff would be entitled.
The plaintiff applies for Conditional Leave to Appeal to the PrivyCouncil against the judgment refusing specific performance, and thedefendants object.
It is contended for the defendants that the judgment of this Court isnot a final judgment within the meaning of Rule 1 (a) of the Scheduleto the Appeals (Privy Council) Ordinance, Chapter 100. Whether ajudgment Is final or not in relation to tho matter in dispute between theparties is a question of fact. But it is not always an easy question todecide.-
In Perera v. Mohamed Yoosoof1 relied on by the defendant, theplaintiffs claimed that the land sold to the defendant’s predecessors wassubject to a fidei commissum in their favour ; there were other questionsinvolved,.e.g., questions relating to improvements, compensation anddamages. The parties had agreed that certain issues should be tried first.
The District Court held that there was no fidei commissum, and that(he defendant bad acquired title by prescription. In appeal it was
» (1931) 32 N. L. S. 285.
SnmiAXE. J.—The Sinhalese Films Industrial Corporation Ltd. w.
Madanayake
391
held that there was a valid fidei commissum, and the case was sent backfor a decision on the other matters. In an application for leave to appealLyall Grant, J. (with whom Drieberg, J. agreed) held that the judgmentof the Supreme Court was not a final judgment. He said—
“ In the present case very much more remains to be done than mereaccounting ”
and made it clear that the view expressed on the question of the finalityof the judgment referred to the facts of that case only.
Thereafter this question had been referred to a Bench of three Judges inMohnmcd Sheriff v. Mutlunalchial.
Garvin, J. said in tho course of that judgment-—
“ Now, there is ample authority for the proposition that a judgmentof this Court may be a final judgment within the meaning of Rule1 (a) nothwithstanding that before the action or proceeding is completelydisposed of some further inquiry may be necessary, such, for instance,as taking of an account or the computation of the amount payable byone party to the other upon the basis of their respective right or rightsas determined by the judgment of this Court.”
He also said—
“ Similarly, an order which finally determines the rights of the parties,though it docs not completely dispose of the action in that.it necessi tatesfurther proceedings upon the basis of the rights as determined by thejudgment in appeal, may be a final judgment.”
Drieberg, J. was one of the Judges in that case.
That deci ion wis followed in The Ce,lon Exports Hi. v. Abeysundereand another2. The Appeal Court decided the qu?s:ion of titloand sent thj ca^e back to the lower Court for fuitlnr inquiry asto the precise identity of certain parcels of land, and whothor thedefendant was entitled to compensation. The Court held that theprincipal point in issue was the question of titlo, and tho decision onthat point was a “ final judgment”.
Mr. Jayewardcne, for the defendants, also relied on a decisionof tho Pi ivy Council in a case fiom Rangoon, Abdul Rahuman v.Cassini and Sons3, but I think the facts in that case are qu'to easilydistinguishable. A Company brought a suit for damages against twonamed defendants, but became insolvent during the pendency ofthe suit. According to tho procedure of the courts in that country,
1 33 {1932) AT. L. tl. 379.« (1933) 13. C. L. R 80.
1 (1963) A. I. R Privy Council 38.
392
SIRIMAXE, J-—The Sinhalese Films Industrial Corporation'Ltd. v.
yjadunayahe
a Deputy Registrar had directed that the Official- assignee“ be brought on the record as plaintiff The Official Assigneestated that the insolvent had not furnished him with security,and the case had been placed before the Judge for an order ofdismissal, which was accordingly entered. There was, therefore, noadjudication at all of the rights of the parlies. The Company appealedaeainst the- order of dismissal and contended that it was entitled tocontinue the suit as the claim for damages was not property which vestedin the assignee under the Insolvency Act. The High Court thereuponset aside the order of dismissal and remitted the case for trial on themerits.
One of the defendants applied for leave to appeal to the Privy Councilagainst this order. It was in these circumstances that the Privy Councilsaid (at page 60) :
“ If, after the order, the suit is still a live suit in which the rights of
the parties have .still to bo determined, no appeal lies against it under
section 109 (a) of the Code.”
But that very judgment shows that when ‘‘-the cardinal point ” in acase is decided and only subsidiary points remain for decision, an appeal,would lie.
In the present case, only the question of the quantum of compensationremains to be determined. If the petitioner is satisfied with the amountawarded, it would be futile for him to appeal against that order and anappeal against the present judgment at that time may very well be out of .time as provided by Rule 2 of the Schedule to Chapter 100.
We might also mention that when Counsel for the defendant expresseda fear that he may have to face another appeal to the Privy Council ohthe quantum of damages, plaintiff’s Counsel gave an undertaking thatthere would be no such appeal as his real claim was one for specificperformance.
We are of the view that the finality contemplated in Rule 1 (a) of theSchedule to Chapter 100 refers to the finality of “ the matter in dispute ”,which must exceed Rs. 5,000 in value. It does not mean that in everycase the party affected by the judgment must await the assessment of theamount of compensation which is a subsidiary matter, and does notaffect the judgment sought to be appealed against.
We think that the application should be allowed, and Conditional Leaveto Appeal is granted subject to the usual conditions.
The petitioner is entitled to costs of this application.
pB Kbetskb, J.—I agree.
Application allowed.