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CADAR SAIBU v. SAYADU BEEBI.D. C., Kandy, 12,559.
Appeal to Privy Council—Value of matter at issue—Ordinance No. 1 of 1889,s. 42 (2)—Three actions rei vindicatio in respect of adjoining tenements,each of less value than Re. 6,000—Agreement between parties that decisionin one case should govern the two other cases—Aggregate value—Affidavit sworn before a Justice of the Peace, who was a proctor in thesuit—Inadmissibility of such affidavit.
Although the value of the matter at issue in a case, sought to babrought in review before the Supreme Court collectively preparatory toan appeal to Her Majesty in Her Privy Council, may be underRs. 6,000, yet it is permissible for a party aggrieved to show, undersection 42 (2) of the Ordinance No. 1 of 1889, that the matter involvesindirectly the title to property exceeding the value of Rs. 6,000.
The fact that the matter in which the application for leave to appealwas sought was one of three actions depending between the parties ortheir privies in estate for the recovery of a tenement in each casewhich, though separately assessed by the Local Board, formed neverthe.less one property; the fact that it was agreed between the parties thatthe decision, as regards title in the present case, should govern the twoother cases; and the valuation set upon each of the tenements in orderto show the aggregate value of the entire property may serve asevidence that the title involved indirectly exceeds Rs. 5,000.
Affidavits sworn before a Justice of the Peace, who is also a proctorin the case, are not admissible for the purposes of that case.
HIS was an application by the defendants in an action in theDistrict Court of Kandy for leave to appeal to the Privy
Council against a decree of the Supreme Court, which reversed adecree of the District Court of Kandy and gave judgment for theplaintiff.
The action was one to vindicate a small piece of ground withtemporary buildings on it, situate in the town of Nawalapitiya,forming the back premises of two tenements separately assessedby the Local Board, but let as a separate building. In the plaintthe latter tenement at the back of the other two was valued at asum of Rs. 350, and in addition a sum of Rs. 140 was claimed asdamages. The plaintiff at the same time brought two other actionsin respect of the two front tenements. These actions were broughtagainst the tenants of the defendants in the present case to recoverthe premises. It was agreed that the present action should befirst decided, and that the result of the present action shouldgovern the two other cases.
Bawa, for defendants.—Although the value of the property atstake in the present action was below the appealable limit, yet ifthe value of the property comprised in the other two cases were
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added to the value of this property, the sum total would amountto more than Es. 5,000, and therefore the title to property worthmore than Es. 5,000 was, in terms of Ordinance No. 1 of 1889,section 42 (2), “ indirectly at issue ” in the present case. Heargued on the facts also.
Wendt, Acting A.-G., contra.—Though the total value of thothree tenements in the property would, according to the basis ofvaluation of the defendant, amount to more than .Es. 5,000, yetthat basis of valuation cannot be admitted as correct. Accordingto a more reliable calculation, the value is proved to be much lessthan Es. 5,000. [Bonser, C.J.—The affidavits filed on behalf ofyour client appear to have been sworn before a Commissioner,who was the proctor for plaintiffs. Such affidavits are inadmissi-ble according to English practice. Are you prepared to havethem re-sworn before another Justice of the Peace?—Yes.]
Bonser, C.J., after reviewing the facts of the case and con-sidering in detail the basis of the calculation made by thedefendants and the plaintiff, held as follows:—
It seems to me that the plaintiff’s valuation of the property ismore trustworthy than that of the defendants, and in my opinionit is not proved that the decree appealed from has been pro-nounced in respect of a matter at issue above the value ofEs. 5,000, or involves directly or indirectly title to propertyexceeding the value of Es. 5,000.
There is one thing I should mention with respect to theaffidavits which have been filed on behalf of the plaintiff. Theywere sworn before a person who is a proctor in the suit, andaccording to English practice arc inadmissible. In my opinionthat practice is a practice which should be followed here. TheActing Attorney-General undertook to have the affidavits re-swornbefore another Commissioner, and as Mr. Bawa raises no objectionto that course being taken I have received the affidavits on thatcondition. The plaintiff will have his costs of the present appli-cation.
CADAR SAIBU v. SAYADU BEEBI