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DELMEGE et al. v. DELMEGE.
D. C., Colombo, C 4,988.
Chil Procedure Code, I. 781—Application for certificate at to fulfilment ofrequirementt of t. 42 of the Court* Ordinance—Plaint for injunction anddamages—Value of subject-matter in issue.
Where, in an action raised to restrain the defendant from tradingunder a certain name and to recover Rs. 9,000 as damages consequentupon the use of such name, no value was assigned in the plaint to the useof such name, and no issue relating to damages was framed, nor anyattempt made to prove damage at the trial, and the dismissal of plaintiffs’case was affirmed by the Supreme Court—
Held that, under section 42 of the Courts Ordinance, the value of thesubject-matter of the suit was to be determined by the statement in theplaint, whether proved or not, and that a party desiring to appeal toHer Majesty in Her Privy Council was entitled to the certificate referredto in section 781 of the Civil Procedure Code.
rpHIS action -was raised to restrain the defendant from trading-1- under the name and style of Delmege, Reid 4b Co., and torecover Re. 9,000 as damages. No value was placed on the rightto use the name. The District Judge refused the injunction anddismissed the plaintiffs’ case, as no damages were proved.
Deo. 13 and14, and Jan.
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Dee. 13 and14, and Jan.3,1898.
On appeal, this judgment was affirmed by the Supreme Court, andnow the plaintiffs, preparatory to an appeal to the Privy Council,applied to the Supreme Court for a certificate under section781 of the Civil Procedure Code, that as regards amount, value,and nature the case fulfilled the requirements of section 42 of theCourts Ordinance.
Layard, A.-G. (with him Dornhorst and Loos), appeared insupport of the motion, and cited D. C. Colombo, 2,298 (Hadjiar v.Pitchey), in which the Privy Council gave leave to appeal,on the footing that the value of the subject-matter of thesuit was to be determined by the statement in the plaint.
Dumbleton (with him Van Langenberg and De Saram), fordefendants.Cur. adv. vult.
3rd January, 1896. Bonser, C.J.—
This is an application for a certificate under section 781 of theCivil Procedure Code by plaintiffs, whose action has been dis-missed by the District Court and by this Court, and who wish tohave the case heard in review by the Full Court. My brotherLawrie, to whom the application was first made, having somedoubt as to the propriety of granting the certificate, has referredit to this Court. The certificate which is asked for is one “ either“ that as regards amount, value, and nature, the case fulfils the“ requirements of section 42 of the Courts Ordinance, 1889, or that“it is otherwise a fit one for appeal to Her Majesty in Council.”The petitioner does not attempt to make out that the case comeswithin the second alternative, but alleges that it satisfies therequirements of section 42 of the Courts Ordinance. These are,that the judgment appealed from “ shall be given or pronounced“ for or in respect of a sum or matter at issue above the amount or“ value of Rs. 5,000, or shall involve directly or indirectly the title to“ property or to some civil right exceeding the value of Rs. 5,000.”The plaintiffs and defendant were formerly carrying on businesstogether in partnership, under partnership articles, which partner-ship determined by effluxion of time. The defendant thereuponcommenced business on his own account under the old partnershipname. The plaintiffs allege in their plaint that this was awrongful act on his part, and that they have suffered damagethereby to the amount of Rs. 9,000, and they claim (1) an in-junction to restrain the defendant from the use of the old name,and (2) Rs. 9,000 as damages. No value was placed upon theright to use the name as required by section 40 of the CivilProcedure Code, so that the only question for us to decide iswhether or not the judgment was given or pronounced for or inrespect of a sum at issue above the amount of Rs. 5,000.
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The history of the case is shortly this. The plaintiffs applied 1896.for and obtained an interim injunction till the trial. On appeal January s.to this Court, the injunction was dissolved. The case then came Bohsrb, CJ.on for trial in the District Court. At the trial no evidence wasadduced. The plaintiffs’ counsel merely stated that his groundswere the same as those argued before the District Court and theSupreme Court on the question of the interim injunction, andthat “ the Court can decide on our claim."
The Court did not, as it ought to have done, under our procedure,frame any issues (see section 14G of the Civil Procedure Code).
But I think it may be taken that the issue which the plaintiffssubmitted to the Court was whether or not the plaint disclosed acause of action, and I think that this was the only issue which,speaking strictly, was before the Court at the trial. The questionof damages was not raised at the trial, nor was any evidenceadduced in respect of it. Judgment was given dismissing theaction on the ground that the plaint disclosed no cause of action,and this judgment was affirmed by this Court in appeal It isthat judgment of this Court that the petitioners seek to bring underreview. Although, strictly speaking, the question of damagewas never at issue, for no issue respecting it was framed andrecorded, yet I think that the judgment was one “given in respect“ of the claim for damages,” for plaintiffs are by that judgmentaltogether shut out from recovering any sum by way of damages,and that the question of damages was substantially at issuebetween the parties. The only doubt which I felt was whetherwe were justified in certifying that the amount at issue was aboveRs. 5,000, there being no evidence whatever before us as to theamount of damages, or indeed that any damages at all have beensustained by the plaintiff. We have been referred, however, toa recent case of Hadjiar v. Pitchey, where the Privy Council gaveleave to appeal, as of right it would seem, an< not of grace,although this Court had refused such leave. In that case, theaction was to recover land stated in the claim to be worthRs. 4,050, and mesne profits at a rate which would make up theclaim to over Rs. 5,000. I have referred to the record, and find thatthere was no evidence before this Court as to the value of the land,or of the mesne profits, and, therefore so far as this Court had anyjudicial knowledge, their value might have beep nil. This Courtrefused leave to appeal on the ground that, as regards value, they hadonly the speculative estimate of the plaintiff in his plaint. The PrivyCouncil gave leave to appeal without assigning any reason, but Igather that their Lordships acceded .to the argument of theappellant’s counsel that, for the purpose of giving leave to appeel,
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ISM. the value of the subject-matter of the suit is to be determined by3. the statement in the plaint without more. This seems decisiveIiAwaia, J. of the present application, which accordingly is granted.
On the authority of the allowance by the Privy Council of theappeal in D. C., Colombo, 2,298, I am of opinion that the certi-ficate may be granted.
DELMEGE et al. v. DELMEGE