121-NLR-NLR-V-39-AMMAL–et-al.-v.-IBRAHIM-et-al.pdf
Ammal v. Ibrahim.
443
1937Present: Abrahams CJ. and Hearne J.
AMMAL et al. v. IBRAHIM et al.
287—-D. C. Nuwara Eliya, 1,589.
Privy Council—Application for conditional leave—Notice to opposite party—Parity to original action, who is not party to appeal—Person interested—Appeals (.Privy Council) Ordinance, 1909, Rule 2, Schedule I.
*Any party to an original action, who has not been a party to anappealcannot be deemed to be a party interested in an appeal to the PrivyCouncil, who is entitled to notice under Rule 2 of the rules in Schedule I'of the Appeals (Privy Council) Ordinance, 1909.
■A. PPLICATION for conditional leave to the Privy Council.
C. Nagalingam, in support.
A. Rajapakse (with him N. Nadarajah), contra.
444
ABRAHAMS C.J.—Animal v. Ibrahim.
July 21, 1937. Abrahams C.J.—
The petitioner’s application for conditional leave to appeal to the PrivyCouncil from a judgment of this Court is objected to for two reasons.
A brief recitation of certain preliminary facts is perhaps necessary. Thecited respondents in this matter were three plaintiffs in the District Courtof Nuwara Eliya. They brought a partition action in respect of certainlands and buildings in which they allotted to themselves certain shares,to six defendants certain other shares and to seven other defendants alsocertain other shares. The last mentioned seven defendants claimed thewhole of the properties aforesaid. The learned District Judge dismissedthe plaintiffs’ action, and in the course of his judgment observed that thesix defendants above named had renounced any rights they may have-had to any share in the land and premises.
The plaintiffs appealed to the Supreme Court, and Fernando A.J. in ajudgment, with which Moseley J. agreed, set aside the judgment of theDistrict Judge and sent back the case for an order of partition to beentered on the footing that the plaintiffs were entitled to the shares theyclaimed. From this judgment the seven defendants now apply forconditional leave to appeal to the Privy Council.
The first objection raised by the-named respondent is that this is nota final judgment within the meaning of Rule 1 (a) of the Rules in ScheduleI of the Appeals (Privy Council) Ordinance, 1909. This objection hasnot been strongly urged. What is a final judgment has been the subjectof more than one decision of this Court, and the difficulty in attemptinga comprehensive definition of it has been acknowledged more than once.
1 do not propose to attempt a definition. I content myself by sayingthat the judgment of the Supreme Court in this case is a final judgmentbecause it purported to settle finally the issues between the parties tothe action, and that nothing more was required to be determined save thepurely quantitative.matter of working-out the shares of the parties. ,
The other objection is this, Rule 2 of the above-mentioned Rules saysthat “ Application to the court for leave to appeal shall be made bypetition within thirty days from the date of the judgment to be appealedfrom, and the applicant shall, within fourteen days from the date of suchjudgment, give the opposite party notice of such intended application.”It is now submitted that the six defendants who were parties to the actionin the District Court ought to receive notice of this application for leaveto appeal because they can be deemed as much opposite parties to thepetitioners as are the three plaintiffs who have been cited by the peti-tioners. In other words any party to the original action who is shown tobe interested in the decision of the appeal to the Privy Council must be -deemed to be an opposite party, although he has not been made a partyto the appeal. Counsel for the petitioners has rejoined that the DistrictJudge stated in his judgment that these six defendants had renouncedany rights they may have had, and that they did not appeal against thatdecision, and he pointed out that the judgment of Fernando A.J. allowedthe appeal only so far as it concerned the plaintiffs and that there wasnothing in the judgment that implied that he intended to admit anyrights in the six defendants. Counsel for the plaintiffs, however, saysthat he did at the hearing of the appeal e.xpose the error made by the
Appuwa v. Homapala.
445
learned District Judge in respect of this alleged renunciation and that thejudgment of Fernando A.J. necessarily implies a finding allotting theirshare to the six defendants. It is certainly singular that the six defend-ants themselves should have taken no steps to correct the alleged errorof the District Judge, and that the judgment in the appeal should haveomitted any mention at all of this question of renunciation.' But what-ever the true facts may be on this point, the question of the obligation onthe part of the petitioners to make the six defendants opposite parties is,in my opinion, completely disposed of by the fact that the six defendantscannot be said to be interested in the result of the appeal to the PrivyCouncil. If they actually did renounce their rights, then obviously theyindicated that they had no interest in the matter and abandoned anyflaim they might have to a share of the property. If on the- other handthey did not renounce their rights, then, on the assumption that thejudgment t)f the Supreme Court purported to establish those rights, thepetitioners, by not making them opposite parties, must be taken toconcede their claim, and if the petitioners succeed in appeal against theplaintiffs that cannot make any difference to the rights of the six defend-ants’ shares in the property, as their shares can in no way depend uponthe shares of the plaintiffs. It is a fallacy to assume that because thepetitioners claim the whole of the property they must perforce getjudgment for the whole of it as against parties whose rights have beenadmitted by a non-citation. I would therefore grant leave to appealon the usual conditions.
Hearne J.—I agree.
Application allowed.