ABRAHAMS C.J.—Ameen v. Rasheed.
1936Present: Abrahams C.J. and Dalton S.P.J.
AMEEN v. RASHEED.
D. C. Colombot 3,684.
Appeal—Order postponing action—Application for revision—Order isappealable.
An order postponing an action is appealable.
j^PPLICATION for revision of an order of the District Judge ofColombo.
A. E. Keuneman, K.C. (with him J. A. T. Perera), for plaintiff, petitioner.N. Nadarajah (with him E. B. Wikramanayake), for respondent.
Cur. adv. vult.
July 7, 1936. Abrahams C.J.—
I am of the opinion that this preliminary objection should succeed.The learned District Judge made an order postponing the action until thedecision of an appeal which he considered as having an important bearingon the action. The plaintiff thereupon applied to this Court, undersection 75 of the Courts Ordinance, for revision of this order on the groundthat it could not be justified in law. A preliminary objection has beentaken to the effect that as the order made is appealable, this applicationshould be rejected.
Is this an appealable order ? There is no specific list of orders whichare appealable, nor is the definition of “ order ” in the Civil ProcedureCode at all helpful since the practice of these Courts, unlike that of theCourts in India, does not require the drawing up of any order. A numberof cases have been cited to us in which different kinds of orders have beenheld appealable, and it would appear from them that any order madejudicially is appealable. Moreover, in Kdthirasen Chetty v. Thevarayenand others', the Court (Hutchinson C.J. and Wendt J.) dismissed anappeal against an order refusing postponement and appeared thereby notto q.uestion that such an order was appealable.
1 1 Leader L. R. 87.
AKBAR J.—Gooneratne v. The Bank of Chettinad.
Counsel for the petitioner contends that an order for postponement is aministerial and not a judicial order. I cannot agree that in allowing anapplication for the postponement of a trial a Judge cannot be said to actjudicially. Once a case is fixed for trial the parties expect it to be heardon the day assigned, unless good reasons are advanced for its postpone-ment. Postponement may result in embarrassing consequences for one orother of the parties—indeed in this instance the petitioner himself com-plains that he has been subjected to some financial prejudice—and it isobvious that when considering an application for postponement a Judgemust bring his mind to bear upon the reasons for the application and theobjections made thereto, and decide judicially.
It has been represented to us on the part of the petitioner that even ifwe find the order to be appealable, we still have a discretion to act inrevision. It has been said in this Court often enough that revision of anappealable order is an exceptional proceeding, and in the petition noreason is given why this method of rectification has been sought ratherthan the ordinary method of appeal.
. I can see no reason why the petitioner should expect us to exercise ourrevisional powers in his favour when he might have appealed, and I wouldallow the preliminary objection and dismiss the application with costs.
Dalton S.P.J.—I agree.
AMEEN v. RASHEED