( 367 )
[Full Bench.]
Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,Mr. Justioe Middleton, and Mr. Justice Wood Benton.
D. C., Negombo, 7,224.
Decree ordering a party to account—Final order—No appeal lies to PrivyCouncil—Value not ascertained—Courts Ordinance, «. 42.
A decree ordering a party to a suit to render an account (whichdecree finally decides the rights of the parties on the principalquestion at issue between them) is a final decree within the meaningof section 42 of the Courts Ordinance.
But an appeal to the Privy Council would not lie against such a■ decree, inasmuch as it is impossible to say till the account has beentaken that the decree is for or in respect of a sum or matter at issueabove the amount or value of Rs. 5,000.
LAINTIFF brought this action to compel the defendant torender an account generally from the beginning of his employ-
ment under him. He alleged in the plaint that it would appearwhen the account was taken that the defendant owed him Bs. 30,000.
The defendant admitted his liability to account for the last threeyears of his employment only. The District Judge ordered thedefendant to render an account as prayed for in the plaint; theSupreme Court in appeal affirmed the decree of the District Court.
The defendant applied for a certificate preparatory to an appeal tothe Privy Council, that as regards amount or value and nature thecase fulfils the requirements of section 42 of the Courts Ordinance.
The Supreme Court issued notice to the plaintiff to show causewhy the certificate should not be granted.
EUiott, for the plaintiff, respondent.—The order is not a “ finalorder.” The order in this case was made under section 203, CivilProcedure Code. Form 41 of the schedule gives the form of a decreeto be entered under sections 203 and 204; the decree must specify thedate of further hearing. Section 204 expressly speaks of the decreeas postponing the final determination of the action. There can beonly one final decree in a case. The present order was purely inter-locutory, as it merely postponed the date of trial. Counsel alsoreferred to Jackson v. Colombo Commercial Co.,1 Periannan Chettyv. Rahappa Chetty.2 Sections 508 and 509 are general sections;section 204 is the particular section that applies to this case.
Even if the order in this case is a_final order., the defendant has notshown that the order he is seeking to get rid of renders him liable topay Bs. 5,000 to the plaintiff. The case must be looked at from the1 {1892) 2 C. L. R. 127.* 3 S. C. C. 39.
November 17.
( 368 )
1908. point of view of the person who wants to get rid of the judgmentNovember 17. (Allan v. Pratt,1 Bandara v. Bandara 2). [Wood Renton- J.—Whatis the effect of the words “ or is otherwise a fit one ” ?] These wordshave been inadvertently taken over from the Indian Code (Jacksonv. Colombo Commercial Co.s).
H. A. Jayewardene (with him Wadsworth), for the defendant,petitioner.—The order in this case has the effect of a final order(Rahimbbhoy Habibbkoy v. Turner ,4 Saiyid Muzhar Hossein v. Mussa-mat Bodha Bibi6). These judgments of the Privy Council over-rulethe Ceylon judgments cited. [Wood Renton J. —The Privy Councildid not consider the question of “ value.” The cases cited by youwere applications for special leave tp appeal, and the Privy Councilmight have granted leave even if the amount involved was only onerupee.] The Privy Council says that the Indian Courts were wrongin refusing a certificate, and does not grant the certificate as anindulgence. Counsel also referred to Kahoranchihami v. Angohamy .’
Elliott, in reply, cited re Estate of Kuda BandaJ
Cur. adv. milt.
November 17, 1909. Hutchinson C.J.—
This is an application for a hearing in review preparatory toappeal to the Privy Council, and for a certificate that as regardsamount or value and: nature the case fulfils the requirements ofsection 42 of the Courts Ordinance.
The decree of this Court against which the appellant wishes toappeal affirmed a decree of the District Court to the effect that theappellant was liable to render an account generally from the begin-ning of his employment with the plaintiff. He had admitted hisliability to account for the last three years, but no more. Theplaintiff alleged in the plaint that it would appear when the accountwas taken that the defendant owed him Rs. 30,000, but the decreeis simply for an account.
I agree that this was a “ final decree,” inasmuch as it finally decidesthe rights of the parties on the principal question at issue betweenthem, and the working out of the decree is merely a matter ofaccount. But an appeal to the Privy Council will not lie unless,in the words of section 42, it is “ for or in respect of a sum or matterat issue above the amount or value of Rs. 5,000, or shall involvedirectly or indirectly the title to property or to some civil rightexceeding the value of Rs. 5,000 and 1 do not think that it fulfilsthe requirement. It is the amount which the appellant is orderedto pay which is the test; and it may be that he will only be orderedto pay a sum less than Rs. 5,000.
1 (1890) I. L. R. 15 Bom. 155.
« (1894) 1. L. R. 17 All. ‘122.
• (1901) 5 N. L. R. 193.
(1905) 2 Bat. 87.
» (1888) 13 A. C. 780.
» (1909) 1 Cur. L. R. 52.» (1892) 2 C. L. R. 127.
( 369 )
The authorities are discussed by my brothers Middleton J. and 1909.Wood Benton J. in their judgments. I agree with them that the November 17.application should be refused with costs.Hotohtobon
Middleton J.—
The only question really to be decided in this case is whetherthe order directing an account is in respect of a sum or matter atissue above the amount or value of Rs. 5,000—section 42 (2), Ordi-nance No. 1 of 1889. The ruling of the Privy Council in RahimbbhoyHabibbhoy v. Turner.1 I think, makes it clear that the order inquestion must be deemed a final one.
In the first place, it is contended that we cannot derive anyassistance from a decision as to value founded on sections 595and 596 of the Indian Civil Code, as the wording of section 596makes the criterion the amount or value of the subject-matter of’the suit.
In Macfarlane v. Ledaire 3 the Privy Council laid down that indetermining the question of the value of the subject-matter indispute upon which the right of appeal depended, the propercourse was to look at the judgment as to the extent that it affectedthe interest of the party prejudiced by it and seeking to relievehimself from it by appeal. In that case the value to the defendantof the adverse judgment was greater than the value laid by theplaintiff in liis claim. Here the order may or may not in its arith-metical result affect the interest of the defendant up to an amountof Rs. 5,000. The amount or value of the matter at issue isRs. 30,000 as claimed in the plaint, but the order is made in respectof no actual sum or matter which can be estimated in value, andlooking at the authorities I have quoted, in my opinion the words“ at issue ” must be taken to refer to the matter at issue in the orderitself and not as laid in the plaint.
In Allan v. Pratt 3 the Privy Council held that the measure ofvalue for determining a defendant’s right of appeal is the amountwhich the plaintiff has recovered, and in Mohideen Hadjiar v.
Pitchey4 the measure of value for determining an appellant’s rightof appeal was held to be the amount for which the defendant hassuccessfully resisted the decree.
In Allan v. Pratt? Lord Selborne, delivering the judgment of thePrivy Council, said that case was the converse of Macfarlane, v.
Ledaire, ubi supra, and that the injury to the “ defendant if he iswrongly adjudged to pay damages is measured by the amount ofdamages which he is adjudged to pay. That is not in the leastenhanced to him by the fact that some greater sum had been claimedon the other side.”
3 (1888) 13 A. O. 780.‘ (1893) A. C. 193.
» J1880) I. L. R. IS Bom. 1SS.1 (1862) 15 Moore P. C. 181.
( 3?0 )
November 17.
In Mussumat Amuna Khatoor v. Radhabenod Misser1 it was heldthat in estimating the appealable value restricted by the order inCouncil of April 1, 1838, for regulating appeals from the Supremeand Sudder Dewanny Courts in the East Indies to Rs. 10,000 asthe amount in dispute, regard should be had to the whole matterinvolved in the suit, and not to the value of a fractional part of theproperty sought to be recovered.
In the present case the order against which the defendant appealsis incapable of estimation in value, and I think it lies on the partyseeking to obtain the order now sought for to show that it affectshis interest up to the appealable value. If the defendant nowobtains leave to appeal, it may subsequently in a trial of the actionresult in an order against him considerably less in value thanRs. 5,000, but he will have had his appeal to the Privy Council, atgreat expense, it may be, to both parties.
If, on the other hand, the taking of the account result in tin.award of a sum up to or exceeding Rs. 5,000, he will then have hisundoubted right to appeal, and can then raise, in addition, thequestion of the propriety of the order for an account he is nowseeking to bring before the Privy Council.
In my opinion, looking at the cases I have quoted, and I canfind no others which appear to touch on the matter in question,the appellant is not entitled to an order for leave to appeal undersection 781 of the Civil Procedure Code, and leave, in my opinion,ought not to be granted.
If tins order be wrong, the appellant can apply to the PrivyCouncil for special leave to appeal : but if leave were granted, itseems to me doubtful, if the decision of this Court in granting leavewere reversed, whether special leave would be granted by thePrivy Council (Allan v. Pratt? vbi supra).
I would dismiss the petition with costs.
Wood Renton J.—
By the decision of the Supreme Court in appeal in this case theappellant has been ordered to account to the respondent for alonger period of time than that for which he was prepared to givean account. In my opinion that is a “final judgment” withinthe meaning of section 42 of the Courts Ordinance and section 779of the Civil Procedure Code. On that point the Indian cases citedby Mr. Hector Jayewardene are, I think, conclusive (RahimbbhoyHabibbkoy v. Turner * and Saiyid Muzhajr Hossein v. Mussamat BodhaBibi 4).
‘ (1859) IS Moore P. C. 470.2 (1890) I. L. R.15 Bom. 155.
* (1888) 13 A. C. 780.1 (1894) I. L. R. 17 All. 1S2.
( 37i )
In the case of Jackson v. Colombo Commercial Co.1—ato action for 1009.the infringement of a patent—the Supreme Court held that a November 17.judgment finding that the plaintiff’s patent had been infringed and woodgranting an injunction, but directing an inquiry as to damages, Benton J,which had not yet been assessed, was not a final judgment withinthe meaning of the sections which I have cited above. The caseof Jackson v. Colombo Commercial Co.1 was a decision of two Judgesonly. With the greatest respect, I am unable to follow it. As amere matter of authority, I think it must be taken to have beenimpliedly over-ruled by the Indian cases above mentioned, whichare decisions of the Privy Council: and as a matter of interpretationI do not see how a judgment, which determined the main point atissue in the case—the question of infringement—and left only thequantum of damages to be fixed, can be held not to have possessedthe characteristic of finality as between the parties to the action.
,Tt is necessary, however, under section 42, rule 2, of the CourtsOrdinance, and section 781 of the Civil Procedure Code, that ajudgment from which it is desired to appeal to the Privy Councilshould not merely be final but should be for or in respect of a sumor matter at issue above the amount or value of Rs. 5,000, or shouldinvolve, directly or indirectly, the title to property or to some civilright exceeding the value of Rs. 5,000. It was held by the PrivyCouncil in the case of Allan v. Pratt2 that the measure of value fordetermining the defendant’s right of appeal is the amount whichthe plaintiff has recovered, and that where tills falls short of theappealable amount, the Court cannot give leave to appeal (seealso Macfarlane v. Ledaire 3 and Mohideen Hadjiar v. Pitchey 4). Inthe present case it cannot be said that the applicant has had judg-ment given against him for a sum above the amount or value ofRs. 5,000. Till the account ordered by the j udgment of the SupremeCourt lias been taken, it is impossible to say whether liis liabilityto account will amount to or exceed that sum. Mr. Hector Jaye-wardene argued that if we construe the provisions of sections 42 ofthe Courts Ordinance and 781 of the Civil Procedure Code in thissense, we shall be over-ruling, in effect, the decisions of the PrivyCouncil in Rahimbbhoy Habibbhoy v. Turner6 and Saiyid Muzha/rll. ossein v. Mussamat Bodha Bibi.* In both of those cases, however,the. Indian High Court had refused leave to appeal on the groundthat the order objected to was not a final order within the meaningof section 595 of the Civil Procedure Code, from which an appealwould lie as of right. They were brought before the Privy Councilon petition for special leave to appeal. In the case of RahimbbhoyHabibbhoy v. Turner5 the question of appealable value was notdiscussed at all, and it was, of course, open to the Privy Council to
(1892) 2 G. L. R. 121.1(1893)A. G. 193.
(1888) 13 A. G. 780.s(1890)1. L. R. IS Bom. 155.
(1862) 15 Moore P. C. 181.•'(1891)1. L. R. 17 All. 122.
( 372 )
1909. grant special leave to appeal, irrespective of tliat question altogether.
November 11. In the case of Saiyid Muzkar Hossein v. Mussamat Bodha Bibi1special leave was also granted, and Lord Hobhouse, who deliveredRkotoh J. the judgment of the Judicial Committee, stated incidentally thatthe value of the property affected by the decree made in two cognatesuits was such as would have allowed the High Court to grant leaveto appeal in the ordinary course. I do not think that either ofthose decisions is in any way in conflict with the case of Allan v.Pratl* or would justify us in holding that, whenever a final order hasbeen made in an action for an account which has not yet been taken,the question of appealable value is to be determined by reference tothe value which a plaintiff-respondent has put upon the subject-matter of the suit. Mr. Jayewardene laid hold of a paragraph inthe respondent’s plaint, in which he, for revenue purposes, estimatedthe appellant’s liability at Rs. 30,000. The prayer of the plaint,however, contains no reference to that or to any other sum, andmerely asks that the appellant should be compelled to account. Onthe strength of these facts, Mr. Elliott contended that, even if theappellant was entitled to have recourse to the respondent’s pleadingsfor the purpose of finding an appealable value, the sum of Rs. 30,000could not fairly be taken as a measure of that value. Whether thatis so or not, we are, in my opinion, bound to apply the principlelaid down by the Privy Council in Allan v. Pratt* and, in the caseof a defendant’s appeal, to seek for the measure of appeal-able value in the terms of the judgment of which he desiresto get rid.
At the first argument of the appeal before His Lordship the ChiefJustice and myself, the appellant’s counsel abandoned his claimin reconvention, the amount of which exceeded the appealablelimit; and at the re-argument of the case before three Judges noattempt was made by Mr. Hector Jayewardene to re-open thatquestion.
In the course of the argument 1 called Mr. Elliott’s attention tothe clause in section 781 of the Civil Procedure Code, which appar-ently empowers the Court to grant the certificate with which thatsection deals, if the-case “ is otherwise a fit one for appeal to HisMajesty in Council.” It was suggested by the Supreme Court in thecase of Jackson v. Colombo Commercial Co.* that these words hadprobably crept into the Code through inadvertency, and not throughany deliberate intention to confer on the Supreme Court an unlimiteddiscretion to allow such appeals. It is unnecessary, however, toconsider that point now, for Mr. Jayewardene did not seek to bringhis case within the clause in question, and we have before usno materials on which we could say that it is applicable to thepresent case.
» (1894) 1. L. R. 17 All. 122.4 (1888) 13 A. C. 780.
3 (1892) 2 0. L. R. 127.
In my opinion the judgment from which it is now desired toappeal to the Privy Council, while it is final in character, does notsatisfy the statutory requirements as to appealable value, and canonly be brought before the Privy Council by the special leave of thattribunal itself. I should, perhaps, add that it was not argued thatthe case could be brought within the meaning of the clause in rule 2of section 42 of the Courts Ordinance as to title to property or tosome civil right.
I would dismiss the application with costs.
November 17.
WoodKenton J.
Application dismissed.