A. E. M. USOOF, Petitioner, and NADARAJAH CHETTIAR, Respondent

040-NLR-NLR-V-61-A.-E.-M.-USOOF-Petitioner-and-NADARAJAH-CHETTIAR-Respondent.pdf


H. N. G. FERNANDO, J.—Usoof v. Nadarajah Chettiar
173
Present: H. N. G. Fernando, J., and Sinnetamby, J*M.USOOF, Petitioner, and NADARAJAH CHETTIAR,
Respondent8. C. 490—Application for Conditional Leave to appeal to the Privy Council
in D. C. Colombo 3,140jMB.
Privy Council—Application for restitutio in integrum—Order of Supreme Court—Right to appeal therefrom to Privy Council—“ Pinal judgment in a civil suit oraction ”—Appeals (Privy Council) Ordinance (Cap. 85), s. 3, Schedule, Rule 1.
An order of the Supreme Court granting or refusing an application forrestitutio in integrum in respect of a decree alleged to have been obtained byfraud is not a final judgment from which leave to appeal to the Privy Councilcan be claimed as of right under Rule 1 of the Schedule to the Appeals (PrivyCouncil) Ordinance.
JDodtoeU v. Ravrther (1899) 3 N. L. R. 325, not followed,
A
^APPLICATION for conditional leave to appeal to tlie Privy Council.
1958A. E.
Thiagalingam, Q.C., with C. CheUappah and T. Parathalingam, forthe defendant-appellant petitioner.
E. B. Wibramanayake, Q.C., with F. Arulambalam, for the plaintiff-respondent.
Cur. adv. vult.
January 17, 1958. H. N. 6. Feknasdo, J.—
This is an application for conditional leave to appeal to Her Majesty inCouncil against an order of this Court dismissing an application by wayof restitutio-in-integrum in which the present petitioner sought to have2 * J. K. B 18300 (11/59)
174
H. N. Gr. FERNAUDO, J.—Usoaf v. Nadarajah Chettiar
vacated a decree entered of consent on 21st December 1953 in actionNo. 3,140 D. G. Colombo. In that action, which was for the recovery ofsums alleged to be due on a mortgage bond, the petitioner was thedefendant and the respondent was the plaintiff. The ground of theapplication for restitutio was that the -present-petitioner-had consented tothe terms o± the consent decree (whereby judgment was entered for theplaintiff subject to certain conditions as to execution) on the faith of an(unrecorded) undertaking by the plaintiff which the plaintiff had there-after fraudulently refused or neglected to implement.
The only ground of objection to the application for conditional leave isthat the former proceedings for restitutio are not a civil suit or action andthat no appeal lies to the Privy Council from the judgment of this Courtin those proceedings. Counsel for the petitioner appeared to think thatif he succeeded in showing that an application for restitutio in the SupremeCourt is a “ civil suit or action,” a right of appeal would necessarily Heagainst the order of this Court thereon. But section 3 of the Appeals(Privy Council) Ordinance (Cap. 85) does not itself confer a right of appeal;it merely provides that the right of appeal shall be subject to, inter alia,the limitations and restrictions prescribed by the 1st Buie in the Scheduleto the Ordinance. In the case therefore of every application for leave toappeal, the provisions in that Buie are brought into consideration andthe question of law which must always be determined is whether therelevant order of this Court is a final judgment in a civil suit or action,.That in my opinion is the substantial question which has been raised inthe objection taken by the respondent.
The principal argument for the respondent has been based on thedecision of a majority of a bench of five Judges in the case of TheSilverline Bus Company Limited v. Kandy Omnibus Company Limitedto the effect that an application to this Court for a writ of certiorari isnot a “ civil suit or action ” within the meaning of section 3 of theAppeals (Privy Council) Ordinance. Since the jurisdiction of the SupremeCourt to grant relief by way of restitutio is of a different nature to thejurisdiction in certiorari, it is necessary to consider first the subject ofrestitutio before examining the bearing which the decision relied on mayhave on the present case.
The history of the remedy of restitutio-in-integrum was considered byWood Benton, J. in Abeysekere v. Haraananis Appu a. In Roman Lawthe remedy was granted by the Praetor who himself conducted theproceeding in which a judicium rescindens might ultimately be granted,and by the time it was received into the Roman Dutch Law, restitutiomight be granted to any party on the ground of metus, dolus, absentia, oxminority, as well as to a partial extent on the ground of laesio enormis.The learned Judge cites a sketch of the subject by Burge in his Chapteron Guardianship of Minora (Vol. IV—2nd Edition). Burge refers to theproceeding as an action to undo what legally had been done but em-phasizes that the granting of such relief could not be claimed as a matterof right but was an act of grace in the exercise of the Boyal Prerogative.Wood Benton, J. cites a number of eariier cases in Ceylon and reachesthe conclusion that in the then state of the law it was too late for a1 [19S6) SS N. L. 3. 133.~ (1911) 14 N. L. 3. 353.
JEL N-. G. FERNANDO, J.— Usoof v. Nadar ayah Chtttiar
175
bench of two Judges or probably even for the Full Court to hold that theremedy of restitution ought no longer to be recognised, and he laid downwhat seemed to Him to be the appropriate procedure to be followed inthe case of an application to the Supreme Court for restitution. Hehimself appears to have thought, like Wendt, J. and Middleton, J, in theearlier case of Silindu v. AJeura 1, that where relief is claimed from adecree alleged to have been improperly obtained, what this Court shoulddo if a prima facie case for relief is made out, is to direct the originalCourt which passed the decree to hear all necessary parties and todetermine whether the relief should be granted. In the Full Benchcase of Sinnetamby v. Nallatamby 2, where a consent decree was allegedto have been entered by mistake, the same view that this Court if itchose to act would give a direction to the lower Court to investigate thematter, had also been expressed. That too was the view expressed inGunaratne v. Dingiri Banda 3. Neither the submissions of Counsel normy own somewhat limited researches have revealed any decision of thisCourt in which an application for restitution against a decree alleged tohave been obtained by fraud has met with success, and I have thereforeno precedent as to the actual action to be taken by this Court upon afavourable view of such an application. But in the absence of any suchprecedent I feel quite entitled to assume the correctness of the pro-cedure envisaged in the judgments to which I have referred, namely thatthis Court would merely direct the Court which entered the decree tohear the parties and to determine whether or not the statiis quo beforedecree should be restored. If such be the order which this Court wouldmake, it would be difficult to claim for it the character of a final judgmentwithin the meaning of the 1st Buie in the Schedule to the Privy CouncilAppeals Ordinance. Lord Atkinson when considering in the PrivyCouncil the question what is a “ final judgment ” (Tata Iron and SteelCo. Ltd. v. Chief Revenue Authority, Bombay 4) cited with approval theopinion of Lord Selboume that “ nothing more is necessary than thatthere should be a proper litis contestatio and a final adjudication betweenthe parties on the merits. Applying this test in a case where restitution issought through the aid of this Court, it seems clear that what would befinal if at all is the judgment of the original Court after hearing theparties, or, in the context of an appeal to the Privy Council, the judgmentof this Court on an appeal from a determination of the original Courtsetting aside or refusing to set aside its decree. The direction of thisCourt requiring the original Court to review its own decree would benothing more than an order putting the original Court in motion with aview to its making a final adjudication. It is true that the presentapplication is for leave to appeal after a failure to obtain such a directionfrom this Court, but if a successful termination in this Court of an applica-tion for relief is not a final judgment, I can see no reasonable basis for theopinion that an unsuccessful termination would constitute a finaljudgment. On this aspect of the matter alone, namely, having regard tothe fact that the authorities contemplate merely the making of an orderby this Court directing a District Court to review its own decree if propergrounds are made out, I would hold that the order which this Court
(1904) 7 N. L. R. 298.
(1903) 7 N. JO. R. 139.
8 (1393) 4 N. JO. R. 249.
* H923) A. I. R. (P. C.) IdS.
176
H- N. G. FERNANDO, J.-—Usoof v. Nadarajah Chettiar
•would have to make upon application for restitution, whether it be-favourable or unfavourable to the applicant, is not a final judgment, andthat leave to appeal to the Privy Council therefrom cannot be claimed asof right. But there are other reasons which lead me to the sameconclusion.
In The Silverline Bus Co. Ltd. v. Kandy Omnibus Co. Ltd.* Basnayake,
J., distinguished cases of regular actions for damages or trespass inrespect of the unlawful assumption of jurisdiction by a tribunal fromcases where an aggrieved party invokes the aid of the High Court by wayof certiorari or otherwise to correct the error of a tribunal. The factthat in the former cases the decision of the Court which tries the actionfor damages or trespass would be subject to an appeal does not in theopinion of the learned Chief Justice render the alternative proceedings inthe High Court a civil suit or action. I shall state why it seems to methat this reasoning is applicable to the present case.
In Obeysekere v. Gunasekera 2 it was held that a District Court hasjurisdiction to set aside a judgment obtained by fraud but that a separatesuit would have to be instituted for the purpose. In Sinnetamby v.NaRatamby 3 (which was a case of alleged mistake), Middleton, J. whilesaying that fraud in seeming a decree gives rise to a cause of action,thought that the remedy is by way of action if the fraud is discoveredafter the lapse of time. The case itself was a partition action in whichthe plaintiff relied on a decree entered of consent in an earlier action, andthe question which the Court had to decide was whether the Judgehearing the partition action could entertain the counter-claim that theearlier consent decree was entered by mistake. The Pull Court decidedthat the proper course was not to make such a counter-claim, or even toinstitute a separate suit to correct the mistake, but to apply to thisCourt by way of restitutio for an order on the lower Court to review theconsent decree. There was the additional circumstance that in anyevent, a Court exercising special jurisdiction under the Partition C rdin-ance had no power to entertain the counter- claim against the validityof an existing decree. While two of the three members of the Benchexpressed themselves in terms which are open to the construction that intheir opinion the only means of setting aside a decree improperly obtained,including a decree obtained by fraud, would be by the process ofrestitutio-in-integrum in the Supreme Court, the case itself was one whereonly mistake was alleged and any n. ference purporting to cover cases offraud was therefore obiter. In fact Middleton, J. makes the distinctionbetween the two types of cases quite clear. In the later case ofAbeysekere v. Haramanis Appu 4 Wood Renton, J. cites without dis-approval the case of Obeyselc&re v. Gunasekera 2 and that of Perera v.Ekanaike 5 where two Judges had held that a judgmer.t obtained byfraud might be set aside by a regular action, as well as his own similarobservations in Buyzer v. Eckert ®. Wood Renton, J. also refers to theSouth African case of Peale v. National Bank of South Africa Ltd. 7which held that an action for restitution may be brought before thetribunal which pronounced the judgment.
(1956)58 N. L. R. J93.* {1911) 14 N. L. B. 353.
(J1884)6 S. C. G. 102.* {1897) 3 N. L. R. 21.
{1903)7 N. L. R. 139.* {1910) 13 N. L. R. 371.
7 {1908) 26 S. A. Z. J. 230.
Joseph Fernando v. Pearlin Fernando
177
These decisions establish in my opinion that two alternative coursesare open as a means of setting aside a decree alleged to have beenobtained by fraud, one course being the institution of a separate actionin the self-same Court. If, as would seem to be the case, such an auctionis a proceeding for the redress of a wrong, then the judgment, if any,pronounced in appeal by this Court would appear to be a final judgmentand therefore appealable under the Privy Council (Appeals) Ordinance.But it does not follow that an appeal would lie if the alternative course ofapplying to this Court for restitution were tQ be adopted. One reachestherefore a similar conclusion as that to which the present Chief Justicearrived in regard to the distinction between the order of this Court madein a civil action for an excess of jurisdiction, and the order of this Court•in a proceeding by way of certiorari or prohibition.
One further ground which impresses me is that the power to grantrelief by way of restitutio-in-integmm is a matter of grace and discretion.It is difficult to accept tire contention that an appeal lies as of right againsta refusal to grant relief by way of grace in the exercise of a jurisdictionoriginally vested in the Sovereign.
The case of Dodwcll v. Rawiher et cd.1 in which Withers, J. sittingalone granted leave to appeal to the Privy Council against a refusal bythis Court to allow restitution should not in my opinion be followed.There is nothing in the judgment to indicate that the objection taken inthe present case was considered or agitated. ,
I would hold that the order against which leave to appeal is now-sought is not a final judgment from which there is an appeal as of right.It was not argued that the case raises any question of great general orpublic importance. I would accordingly refuse the application withcosts.
.SrsnjfjSTAMBY, J.—I agree.
Application refused.