020-NLR-NLR-V-13-ABDUL-AZIZ-v.-ABDUL-RAHIM-et-al.pdf
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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,Jan.27,1910
and Mr. Justice Middleton.~~
ABDUL AZIZ v. ABDUL BA HIM et al.
D. C., Colombo, 26,976.
Appeal to Privy Council—Decree dismissing possessory, action icith libertyto plaintiff to amend plaint and proceed with action as a rei vindicatioaction—Civil Procedure Code, s. 781.
The Appeal Coart dismissed plaintiff's possessor; action andgave him liberty to amend bis plaint and proceed with the actionas an action to vindicate his title to the premises in dispute.
Held, that the decree was a final decree, and that‘ it was open tothe plaintiff to appeal to the Privy Conncil against that decree. Acertificate nnder section 781, Civil Procedure Code, was granted tothe plaintiff.
T
HE Appeal Court by its judgment reported in 12 N. L. B. 330dismissed plaintiff’s possessory action and gave him liberty
to amend his plaint and proceed with the action as an action tovindicate title to the premises in dispute.
1 (1909) 2 Oh. 129.
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Jan. 27* 1910 The plaintiff, with a view to appeal to the Privy Council, appliedAbdul Aziz v. ^°r a certificate under section 781, Civil Procedure Code.
Abdul Rahim
Bawa (with him F. M. de Saram), for plaintiff.—An order dismissinga possessory action is a final order. An appeal lies to the PrivyCouncil in a possessory action, if the value of the land regardingwhich the action is brought is above Es. 5,000. The 0. B. C.Estates Co. u. Brooks & Go.1 Counsel also cited The Ceylon TeaPlantation Co. v. Carry.2
Van Langenberg (with him H. A. Jayewardene), for the defend-ants.—This case was sent back to the District Court, and liberty wasgiven to the plaintiff to proceed with the action after amending hisplaint. There is no final decree in the case. Jackson v. Brown *Counsel also cited Iiaronchihami v. AngohamiA
Bawa, in reply.—The cases cited do not apply to the present case.
January 27, 1910. Hutchinson C.J.—
The decree of this Court in this action was that the decree of theDistrict Court be set aside, and the plaintiff*s claim as constitutedbe dismissed, with liberty to the plaintiff to amend his plaint andproceed with the action as an action to vindicate his title to thepremises mentioned in the plaint; and it was ordered that if he shouldamend his plaint, the Court should at the further proceedings trycertain issues therein mentioned. Perhaps this decree is not quitein accordance with the judgment of this Court, but I think thatwhen it says that the action as constituted is dismissed, it meansthat the claim made in the plaint is dismissed. The plaintiff hasnot yet availed himself of the liberty given to him to amend hisplaint. The respondent claims now that the order of this Courtwas not a final decree, and had not the effect of a final or definitivesentence, because if the plaintiff amends his plaint there will be afurther issue to be tried, and the case will then be the same as if theplaint had originally contained two causes of action: (1) the claimas in a possessory action, and (2) a claim as in an action to vindicatetitle, and that no appeal would lie against an order dismissing oneof such claims, until the other claim also is adjudicated upon, andthe whole of the action so decided. If, however, the plaintiff doesnot amend his plaint, the decree which has already been made willbe a final decree, finally disposing of the whole of the action, and Icannot see that it will make any difference that he has at present a. right given to him by this Court to amend his plaint.. I think Iam bound to say that the decree of this Court is in effect ajudgment, and therefore the certificate must be granted.
1 {1892) 1 8. C. R. 1.
* {1909) 12 N. L. B. 367.
8 (1892) 1.8.0. R. 313.4 (1901) 6 N. L. R. 193.
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Middleton J.—
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In my opinion the decree here is a final and definitive sentence ofthis Court, and no less so .from the fact that it is qualified with theoption to the plaintiff to amend his plaint. That option is entirelyhis, and I think that we must take it that if he doeB not avail himselfof it, he has chosen at any rate to treat the judgment against himas final and definitive as he now desires us to do in this application.
Jan. if, 1910
Abdul Aziz v.Abdul Rahim
Application allowed.