078-NLR-NLR-V-18-COSTA-et-al.-v.-SILVA-et-al.pdf
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Present : Wood Benton C.J. and Shaw J.
COSTA et al. v. SILVA et al,
77 and 78—D. 0. Colombo, 35,701.
Appeal to the Privy Council—Security for costa.
Where, plaintiffs' actiou against several defendants was dismissedand they applied for leave to appeal to the Privy Council, theywore ordered to give security for costs for all respondents in thesum of Bs. 3,000.
" The language of rule 3 .(a) does not support the view that thecosts of several respondents should be separately secured.11
(JjHE facts appear from the order.
Drieberg, for. plaintiffs, appellants.
F. M. ,do Sarnm. for the first, second, and .third defendants,respondents.
F, de Silva, for fourth and fifth defendants, respondents.—Buie3 (a) of Schedule I. speaks of costs of “ respondent/' If there areseveral respondents there should be separate sets of costs.
Under rule 5 the Supreme Court has power to order adequatesecurity. The sum of three .thousand rupees is. given where there isone respondent. The sum is clearly inadequate where there areseveral respondents. Counsel referred to Dinga v. Sinda et al. 1
Allan Drieberg, for the plaintiffs, appellants.—Three thousandrupees is the maximum amount which can be fixed by Court assecurity for costs. Buie 3 (a) says, '"in a sum not exceeding threethousand rupees.”
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Bawa, K, CM amiem rur/Vr, referred to 168—D. C. Colombo, 31,882*
Cur. adv. vuli.
June 14, 1915. Woon Renton C.J.—
This is an application by the plaintiffs in Nos. 77 nud 78—D. C.(Final) Colombo, 35,701, for conditional leave to appeal to the PrivyCouncil from the judgment delivered by this Court on May 10dismissing their action with costs. The judgment of this Court is afinal one within the meaning of rule 1 (a) of the rules scheduled to the-Appeal; to the Privy Council Ordinance, 1909.(No. 31 of 1909), andthe matter in dispute is over the appealable value. Counsel for thefourth and fifth defendants-respondents moves, however, that they
* aiusi U N. L. R. m.
1915.
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should be allowed security for their costs, ^dependent of .the securityWoou requited for the costs of the first, second', and third defendants.
Bbsson Ci. Counsel for the plaintiffs objects, and I think that, his objection
Costa v. SUva i* entitled to succeed. Rule 3 (a) of the scheduled rules provides forsecurity for the prosecution of fhq appeal and the payment of thecosts of *' respondents," and fixes the maximum amount of securityat Rs. 3,000. The language of the rule does not support the viewthat the costs of several respondents should be separately secured.The plaintiffs sued all the respondents in one and the same action.The first and second defendants filed one answer; the third andfourth defendants filed separate answers; they appeared by separateproctors and counsel ip the District Court and at the hearing of thisappeal, and there were distinct petitions of appeal. But they wereall in the same interest, and apart- from the difficulty arising underrule 1 (a) of the scheduled rules, it would be unreasonable that theyshould have separate security for costs. If the contention now putforward on behalf of the respondents were sound, a plaintiff appealingto the Privy Council from a decision of this Court in a heavypartition case might well be called upon to give independentsecurity for the costs of a score of different respondents. We oughtnot, I think, to give a ruling which could render such a resultpossible, unless we are constrained to do so by judicial authority.On the argument before us, Mr. Bawa, Solicitor-General, kindlycabled our attention, as amicus curia; to the fact that this very point,had been raised in another case (No. 168—D. C. Colombo (Final),31,882), in which two defendants-respondents to the appeal appearedby separate proctors and counsel, and in which security for onlyone respondent was allowed. I have referred to the minute of theSupreme Court of January 26, 1013. and hftve ascertained thatthat was so. “ It was contended. ” said Sir Alfred Lascelles, “ bythe respondents that the (maximum limit) is applicable separatelyto the costs of each respondent, and that the appellant should beordered to give security separately, in an amount not exceedingRs. 3,000, for the costs of each respondent. * On the other hand,, theappellants contended that the maximum amount of Rs; 3,000 isintended to cover the costs of both respondents. Now in this casethere i9 really but one appeal. As regards matter of evidence andthe admission which the defendants are said to have made, it is truethat there is some difference between their cases. But in substancetheir cases are one and the same."
These observations are directly applicable to the present case,' anddispose of the point before us. But I may add that the practice ofthe Court of Appeal in England would seem, to be that where thereare several respondents to an unsuccessful appeal in the sameinterest only one set of costs is allowed against, the appellant, and(he Privy Council acts on the same principle (see Lyall v. Jardin, 1
i (1670) Moore's J>. C. N. 8. 266.
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Bamalal r. Saiyed Mehde Hussain, 1 and Harbin v. Masterman -*).. 1M5.
These … »c authorities are, oi course, not connected with security' Woodfor *i*pKW*tsv costs of appeal, but they ezrbody a principle of BmumrClJ.whicv we Bjegr weB-lto^e account by way of analogy. In my Qo^^silvaopini*©, conditional leave to appeal should be granted on theusua) terms, namely, that one appellant should./give good andsufficient security for the p* osecution of the appeal, and costs of therespondents .to the amount of Bs. 3.000. The appellants, areentitled to. the costs of ihis application,
Shaw J. -I auti«e1v agree.