H. N. G. FERNANDO, C.J.— TVijelunge v. Scnanayake
19G8 Present: H, N. G. Fernando, C.J., and Abeyesundere, J.
U.N. WIJETUNGE, Petitioner, and
J.SENANAYAKE el al., RespondentsS. C. 111)67—Application for conditional leave to appeal to thePrivy Council in 653164/D. C. Kandy, 7179jL
Appeals (Privy Council) Ordinance (Cap. 100)—Schedule, Ilule 1 (b)—Appeals toPrivy Council al the discretion ojthe Supreme Court—Considerations applicable.
Eoavo to appeal to tho Privy Council unclor Rulo 1 (b) of tho Schedule to thoAppeals (Privy Council) Ordinanco will not bo granted at tho discretion of thoSupremo Court in a case whore tho question to bo decided, although it may boono of gonortil or public importance, is not ono of unusual difficulty.
Application for conditional Icavo to appoal to tho Privy Council.
S. Wijeuardene, for tho defendant-petitioner.
C. Panganathan, Q.C., with I. S. de Silva, for tho plaintiffs-respondents.
February 7, 1968. H. N. G. Fernando, C.J.—
In this action for ejectment the position for tho plaintiff was that thopremises wero excepted premises as defined in tho schedule to tho RentRestriction Act (Cap. 274). Tho defendant contested that positionand in addition made two claims in rcconvention, ono in respect ofadvances paid by way of rent or premium, and tho other in respect ofalleged improvements to tho building of a value of about Re. 17,000.Tho learned District Judge entered decreo for ejectment holding that thopromises wero oxeepted promises within tho moaning of tho Act, and
H. X. O. FEENAKDO C.J.—IVijctvnge v. Senanayahe
also allowing tho claim of tho defendant in rcconvcntion.in respect oftho advances or premium. But ho dismissed the claim in rcconventionin respect of alleged improvements.
In appeal the judgment and decree of the District Court wero affirmed,in a judgment which has been reported in 69 N. L. R. at page 445.
Tho present application for leave to appeal to the Privy Council fromtho judgment of this Court is made on two grounds. Tho first groundis that one of tho matters in dispute is tho claim in reconvention forcompensation in respect of improvements. In regard to this claim,although tho petition of appeal to tho Supremo Court docs include itas ono of tho grounds of appeal, tho judgment of this Court makes noreferenco whatsoever to any argument concerning that claim inreconvontion. Having regard to tho fact that the judgment of thisCourt was a reservod judgment, it seems to us that tho only properinference must bo that the appeal in regard to tho claim in rcconventionwas not in fact pressed at tho hearing beforo this Court. Counsel whonow appears for tho appellant was one of tho counsel who appeared atthe hearing of the appeal, and he does not state to us that any argumentwas then addressed to the Court concerning tho claim in reconventionfor improvements.
Tho second ground now urged in support of the application for leaveto appeal is that the interpretation of certain words in the schedule totho Bent Restriction Act involves a question of great general or publioimportance. Wo agree that tho question is of such importance, for thoreason that there must bo a large number of cases in which alterationsof the annual value of premises can have the result that premises formerlysubject to rent control may coaso to bo so subject upon a change ofassessment. Nevertheless the element of importance does not in ouropinion end the question to be determined under Rule 1 (6) of the scheduleto tho Privy Council Appeals Ordinance. A further point which thisCourt has to decide is whether the question ought to bo submitted toHer Majesty in Council for decision. Since in the opinion of tho presentBench, as well as of the Bench which decided the action in this case,and in addition the Judge who decided the case reported in 59 N. L. R.,page 525, tho words in the schedulo do have the meaning contended forby the plaintiff in this action, and since wo do not think that tho questionto bo decided is one of unusual difficulty, wo hold that tho present casoIs not ono whicli calls for tho exerciso of tho discretion of this Court.
Tho application for conditional leave is refused with costs.
Abeyksttndere, J.—I agree.
U. N. WIJETUNGE, Petitoner, and J. SENANNAYAKE et al., Respondents