T. S. EISRbTA&CDO, J.—Marikhcr v. Axeez
1962Present: T. S. Fernando, J., and Herat, J.
SHEBIFF MLABIKELAB, AppaS®*^ m& ABDUL AZ3082,38*asp3adaatS. C. 9 (Ink/.) of 1959—D. C. KegaUe, 1113$Appeal—Consent order—No right of appeal therefrom—Courts Ordinance, ss. 73, 73.
No appeal lias where parties have agreed fco be bound by the order ofthe Judge sought to be appealed from.
Accordingly, in. an action, for a right of way, no appeal lies from an ordergiven by Court in accordance with an agreement recorded by the Court asfollows :—“ It is agreed that the parties will accept any order made by meafter an inspection. ”
Appeal from an order of the District Court, Kegalle.
3. W. Jayewardene, Q.C., with G. P. Fernando, for the plaintiff-appellant.
N. E. Weerasooria, Q.G., withrespondent.
R. Gunaratne, for the defendant-
Cur. adv. vult.
February 22, 1962. T. S. Fek:n-ant>o, J.—
A preliminary objection to the hearing of this appeal was raised onbehalf of the defendant-respondent and, after hearing argument, wemade order rejecting the appeal with costs on the ground that no appeallies. We set down below shortly our reasons for so holding.
This was an action instituted by the plaintiff claiming (i) a declarationthat he is entitled to use a certain strip of land as his private cart road,(ii) an injunction restraining the defendant from damaging the said stripof land until the final determination of the action, (iii) that the defendantbe ordered to remove certain obstructions erected on the said strip ofland and (iv) that he be placed in quiet possession of the said strip of landfor use as a cartload. The defendant denied that the plaintiff wasentitled to the right of cart-way claimed, denied that he had damagedthe strip of land or had erected any obstruction thereon.
On the day fixed for trial, the parties reached an agreement which wasrecorded by the learned District Judge as follows :—“ It is agreed that theparties will accept any order made by me after an inspection. ” Inaccordance with this agreement the land was inspected by the DistrictJudge on 26th February I95S in the presence of the parties and theirlawyers, and the record indicates that the District Judge was shown bythe defendant an alternative road which he had constructed for theuse of the plaintiff. After having heard counsel on behalf of the partieson 17th July 1958, the learned District Judge made order on 2SthJuly 1958 “ ordering the defendant fro complete the construction of thenew road, subject to the condition that he will warrant and defend theplaintiff’s right to use the same. On the road being completed, theplaintiff will be declared entitled to the use of the same. ” The plaintiffappealed to this Court against this order of the 2Stb 1958.
T. S. FERNANDO, J.—Marikkar v. Aze.cz
Mr. Weerasooria, on behalf of the defendant, submitted that no rightof appeal lay. He relied on a series of decisions of this Court that noappeal lies where parties have agreed to be bound by the order of theJudge sought to be appealed from. In the earliest of the cases broughtto our notice, Peries v. Peris the decision rested on the ground that theparties Jiave constituted the judge an arbitrator and have thereforewaived their right of appeal. In Babunhamy v. Andris Afpu2, Hutchin-son C.J., holding against the existence of a right of appeal, expressedhimself thus :—“ Each party agreed to be bound and waived the right ofappeal in case the decision should be against him. ” Four years later,in 1914, in the case of Ameru v. Appu Singkc3, Wood Renton C. J., withwhom De Sampayo, A.J. agreed, stated that both parties thought thatthe only question in the case “ might fairly be left, and be left finally,to the decision of the District Judge 3 In that case too, this Court heldthat no right of appeal lies. These three cases were followed in 1919 bySchneider J. in De Hoedt v. Jinasena 4, and, in 1922, Porter J. in Mudi-yanse v. Loku Banda5, agreeing with the judgment of Schneider J. inDe Hoedt v. Jinasena (supra) observed: “ It seems to me to be impossibleon a record which contains no evidence that on appeal the Appeal Courtcan differ from its findings The last of the cases relied on byMr, Weerasooria is Punchi Banda v. Noordezn 6 where Akbar J. in 1929held that no appeal lay from the decision of a Commissioner of Requestswhere the parties to the action before him had agreed to abide by hisdecision to be made after an inspection of the premises Id dispute.
Mr. Jayewardene attempted to find a way out from the effect of thislong line of decisions by submitting that none of these decisions had takeninto consideration the existence of sections 73 and 78 of the Courts Ordi-nance which confer on a party dissatisfied with any judgment, decreeor order of a District Court or with any order having the effect of a finaljudgment of a Court of Requests a right to appeal to the Supreme Court.It is correct that section 73 or 78, as the case may be, of the CourtsOrdinance is not specifically referred to in any of the judgments reliedon but the reason for such omission is to be found in the circumstancethat the ratio decidendi of these judgments is that where parties haveagreed to accept or abide by the decision of a Court there is an impliedwaiver of the right of appeal. There is.nothing to prevent parties soagreeing to waive a right given to them by law.
Mr. Jayewardene .finally contended that a waiver of a party's rightmust be strictly construed, and that the order made by the learnedDistrict Judge in this case goes outside the subject-matter of theaction. Having regard to the fact that the relief claimed by the plaintiffwas essentially a grant to him of a right of cartway, we are unable toagree also with his final contention.
Herat, J.—I agree.Appeal rejected.
1 (1900) 1 Browne'* Rep. 420•UmO) 5 Bal. Rep. 89.
5 (1914) 4 Bal. N. C. 24.
(1919) 6 C. W. 1?. 178.
(1922) 24 N L. R190.*(1929) 30 N. L. R. 481.
SHERIFF MARIKKAR, Appellant, and ABDUL AZEEZ, Respondent