083-NLR-NLR-V-54-G.-S.-N.-KODAKAN-PILLAI-Petitioner-and-P.-B.-MUDANAYAKE-Registering-Officer.pdf
350
N AG ALIN GAM J.—Kodalcan Pillai v. Jktudanayake
1951Present: Nagalingam J.
G. S. N. TCOBATC AW PILLAI, Petitioner, and P. B. MUDANAYAKE(Registering Officer) et al., Respondents
S. C. 522—Application for conditional leave to appeal to thePrivy Council
Privy Council—Conditional leave to appeal—Certiorari—“ Civil suit or action ”—Appeals {Privy Council) Ordinance (Cap. 85), s. 3.
A mandate in the nature of a writ of certiorari affecting a civil right is art-action within the meaning of section 3 of the Appeals (Privy Council)Ordinance.
.^APPLICATION for conditional leave to appeal to the Privy Council.
S. J. V. Chelvanayalcam, K.C., with. S. Nadesan and A7-. Nadarasa,for the petitioner.
Walter Jayawardene, Crown Counsel, for the 1st and 2nd respondents.
Cur. adv. vult.
October 25, 1951. Nagalingam J,—-
This is an application by the petitioner for conditional leave to appealto His Majesty in Council. It is conceded on the petitioner’s behalfthat the application is not one that is made as of right but that it ismade with a view to securing the exercise of the Court’s discretion ingranting leave on the basis that the questions involved in the appealare such that by reason of their great general or public importance theyought to be submitted to His Majesty in Council for decision.
NAGrAZjXN'GAM J.—Kodalcan PiUai v. Mudanayake
351
Learned Crown Counsel who appeared on behalf of the 1st and 2ndrespondents while submitting that he could not very well combat thatquestions of great general and public importance are involved in theappeal within the meaning of Rule 1 (6) of the Schedule to the Appeals(Privy Council) Ordinance (Chapter 85) contended that neither part (a)nor (6) of Rule 1 had any relation to the application made by the peti-tioner. It was urged that before the Rule could be applied it mustbe shown that the appeal was permitted by the provisions of the Ordi-nance itself, and it was particularly emphasised that section 3 of theOrdinance conferred the right of appeal only on parties to civil suitsor actions. It was further said that the order appealed from was notone which could properly be regarded as one made between parties tocivil suits or actions, as a mandate in the nature of a Writ of Certiorariis properly an information rather than a civil suit or action. In support,of his contention Mr. J ay a war dena cited cases which, far from supportinghis contention, established the contrary.
The case of Bradla/ugh v. Clarkex, the first case cited by him, wasdecided in the House of Lords, and considered among other matterswhat was the proper meaning to be attached to the term “ action ”.It was contended that as the Statute that was under considerationthere prescribed that a penalty imposed by it could be “ recovered byaction in one of Her Majesty’s Superior Courts at Westminster ” andas the King could only proceed in the Court of Exchequer for recoveryof penalties, and that by way of information and not by action, the useof the term “ action ” in connection with the words, “ in one of HerMajesty’s Superior Courts at Westminster ” indicated that the rightto recover the penalty was not vested in the King but in a commoninformer. Earl of Selborne L.C. in rejecting this contention observedthat :
“ the word ‘ action ’ is (as Lord Justice Lush said) a generic term,inclusive, in its proper legal sense, of suits by the Crown, and, therefore,not furnishing any sufficient ground for implying a right of actionin a common informer.”
Lord Blackburn in the same case made this interesting observation :—-
“ In the popular use of the words an information by the Attorney-* General to recover a debt due to the Crown is spoken of as an infor-mation and not as an action, which in popular language would be takento mean an action by a subject. But in legal phraseology ‘ action ’includes every suit, whether by a subject, or in the name of theSovereign, or by an information by the Attorney-General on behalfof the Crown.”
It would thus be seen that the term “ action ” has been expoundedby the House of Lords in the widest possible sense as including evenan information in the technical sense of the term.
The other case relied upon by learned Crown Counsel is that ofSubramaniam Chetty v. Soysa2 (Divisional Bench). The questionthat arose there was whether an appeal lay as of right to the Privy
1 L. R. 8 A. C. 354.2 (1923) 25 N. L. R. 344.
352
NAGALINGAM J.—ICodakan Filial v. Aludanayake
Council from an order of this Court setting aside a sale in execution.That the subject matter itself was over Rs. 5,000 in value was not in-dispute. But there, as here, it was sought to be argued that the ordermade by this Court was not in regard to a civil suit or action as thequestion that arose was between the purchaser and the judgment creditorand therefore no appeal lay within the meaning of section 3 of theAppeals (Privy Council) Ordinance. In reference to this contentionBertram C.J., after referring to the definition of the term “action”in section 5 of the Civil Procedure Code referred to the extended meaninggiven to that term by section 6 thereof, and, observing that “ it wouldbe highly inconvenient if the word * action ’ in this Ordinance (PrivyCouncil) were given a different meaning from that which is given toit in our Code of Civil Procedure ”, reached the conclusion that theapplication to set aside a sale in execution proceedings was one whichfell within the description of an action as the application to set asidethe sale was, in the language of section 6 of the Civil Procedure Code,an application to the Court for relief or remedy obtainable throughthe exercise of the Court’s power or authority or by otherwise invitingits interference. This case, again, is therefore no authority for theargument advanced by learned Crown Counsel.
In the case of Rex v. Woodhouse 1, Fletcher Moulton L.J. had occasionto indicate the nature, scope and extent of a Writ of Certiorari :—
“ The writ of certiorari is a very ancient remedy, and is the ordinaryprocess by which the High Court brings up for examination the actsof bodies of inferior jurisdiction. In certain cases the writ of certiorariis given by statute, but in a large number of cases it rests on thecommon law. It is frequently spoken of as being applicable onlyto ‘ judicial acts ’ but the cases by which this limitation is supposedto be established shew that the phrase c judicial act ’ must be takenin a very wide sense, including many acts that would not ordinarilybe termed ‘ judicial ’. For instance, it is evidently not limited tobringing up the acts of bodies that are ordinarily considered to beCourts. From very early times the common law courts consideredthat they had jurisdiction to examine into rates by certiorari. Theprocedure of certiorari applies in many cases in which the body whoseacts are criticised would not ordinarily be called a court, nor wouldits acts be ordinarily termed ‘ judicial acts ’. The true view of thelimitation would seem to be that the term ‘ judicial act ’ is used incontrast with purely ministerial acts.”
In the present case, the facts are that the petitioner applied to theRegistering Officer to have his name included in the relevant Voters’Ust but the application was refused, whereupon an appeal was lodgedwith the Revising Officer, who ordered the inclusion of the petitioner’sname, reversing the order of the Registering Officer. Thereupon theRegistering Officer applied to this Court for a Writ of Certiorari to quashthe order of the Revising Officer. That, undoubtedly, was a remedywhich was sought by the Registering Officer by invoking the aid of this
1 {1000) 2 K. B. 501..
?JAG ALIN GAM J.— Kodakan PiUai v. JHudanayake
353
Court, and it is common ground that there was no other remedy opento the Registering Officer in the circumstances. The application ofthe Registering Officer for a Writ of Certiorari was a remedy for reliefobtainable by inviting this Court to exercise its power or authority andwould, therefore, fall within the meaning of the term “ action ” asdefined in the Civil Procedure Code.
Learned Crown Counsel, alternatively, sought to argue that the term“ action ” need not necessarily receive the same meaning as that given,to it in the Civil Procedure Code but must be given its ordinary meaning.
Justinian 1 defines the term “ action ” thus :—- .
" Actio autem nihil aliud est, quam jus persequendi in judicio,quod sibi debetur ”—An action is nothing else than the right of suingbefore a Judge for that which is due to us.
In England, too, there is the high authority of Bracton 1 2 * who definesthe term “ action ” thus :—
“ Actio nihil aliud est quam jus prosequendi in judicio quod aliquo-debetur ”—An action is nothing else than the right of suing in aCourt of justice for that which is due to someone.
“ That which is due to us or someone ” is wide enough to include thecase of a declaration of status.
Even on the basis of these general concepts of the term “ action ”the order made upon the application for a Writ of Certiorari cannot-but be regarded as one relating to an action.
Similar questions as in the present case were raised and consideredin the cases of In re Goonesinghe 3 and Controller of Textiles v. MohamedMiya4. In the former of these two cases the question that arose waswhether an order of this Court refusing an application for a Writ ofCertiorari to quash the order of an Election Judge was one which was-a civil suit or action within the meaning of section 3 of the Appeals(Privy Council) Ordinance. Moseley J. in delivering the judgmentof the Court expressed himself as having <c little difficulty in arrivingat the conclusion that an application in the nature of a Writ of Certioraribeing an application for relief or remedy obtainable through the Court’spower or authority constitutes an action, and therefore comes within thecompass of section 3 of Cap. 85 of the Legislative Enactments.”In the latter case which was an application for leave to appeal to thePrivy Council from an order of this Court granting a mandate in thenature of a Writ of Certiorari quashing an order of the Textile Controllerrevoking two licences, this Court held that an appeal lay as of right te
1Bk. IV Tit. VI, Sanders' translation p. 426.
2Bk. 3, Chapter 1.
s (1942) 44 N. Zr. R. 75.
4(1948) 49 N. L. R. 105 at 107.
354
SWAN J*.—Chacho v. JSdody
"the Privy Council. In delivering the judgment of the Court, Caneke-ratne J. made certain observations in regard to the considerationsthat would weigh with a Court in granting an application. The learned•Judge said,
“ There are many other circumstances which would properlyinfluence the decision of a Court as to the propriety of allowing anapplication such, for instance, as was once remarked, a constitutionalright …. An order designed to create or to dissolve a status,would affect the civil right of a person—an order that a man shouldnot be permitted to exercise the franchise may, perhaps, be one.”
I am of the view that both on principle and precedent the applicationof the petitioner is one which falls within the scope of section 3 of theAppeals (Privy Council) Ordinance.
I therefore allow the application of the petitioner on the usual condi-•tions. The 1st respondent will pay to the petitioner the costs of argument.
Application allowed.