108-NLR-NLR-V-57-H.-E.-TENNEKONE-Commissioner-fo-the-Registration-of-Indian-and-Pakistani-Reside.pdf
1955J>rr*(’)tf:Basnayake, A.C.J., and Gratiaen, J.
IT. 1%. TKXXRKOXK (Commissioner for tlie Registration of Indianand Pakistani Residents). Petitioner, and I5. K. JIU.RAISWA'MY,
Respondent
S. C. 160—In the matter of an Application for Conditional Leave to Appealto the Privy Council in re an Application made under ■section 7 of the Indianand Pakistani Residents (Citizenship) Act. No. 3 of 1019
Priaj Council— Conditional leave to appeal—Indian and Pakistani Resident# {Citizen-ship) Act; So. •> of 1919, s. to—Judgment of Supreme Court—-Right of appealtherefrom—“ Civil suit or action ”—Appeals {Privy Council) Ordinance(Cap. So), s. Rule J (b) of Schedule.■
A judgment- given in an appeal under sect ion 1 ;*> of the Indian anti PakistaniResidents (Citizenship) Act is a judgment in a " civil suit or action in the SupremeCourt !> within the meaning of section ’J of the Appeals (Privy Council)Off linn nee.
./^lPPJ,IGATIOX for conditional leave to appeal to tlie Privy Council.
J1 /. 2'iruchelcam. Deputy Solicitor-General, with 1'. 7’cnnckoon. GrownCounsel., for the Respondent-Petitioner.
Walter Jaymeardenn, with S. P. A nierasivyhmn. for the Appellant-Respondent.
Cur. adv. mil.
December 20, 1955. B.asx.avakk. A.G.J.—.
At the conclusion of the argument of this application for conditionalleave to appeal to the Privy Council, we made order allowing the appli-cation and reserved our reasons to be delivered on a later date.
It is common ground that the question involved in the appeal is onewhich, by reason of its great general or public importance, ought to besubmitted to Her Majesty the Queen in Council for decision.
The only question in dispute was whether an appeal under section 15of the Indian and Pakistani Residents (Citizenship) Act, Xo. 3 of 1949(hereinafter referred to as the Act) conies within the ambit of section 3of t he Appeals (Privy Council) Ordinance (hereinafter referred to as theOrdinance). That section reads :'
"■ From and after the commencement of this Ordinance the right ofparties to civil suits or actions in the Supreme Court to appeal to His.Majesty in Council against the judgments and orders of such Courtshall be subject to and regulated by—
the limitations and conditions prescribed by the Rules set out in
the Schedule, or by such other Rules as may from time to timebe made by His Majesty in Council; and
such general Rules and Orders of Court as the Judges of the
Supreme Court may from time to time make in exercise of 'any power conferred upon them by any enactment for thetime being in force !
Learned Counsel for the respondent opposed the application on theground that the judgment from which the applicant sought to appealwas not a judgment in a " civil suit or action in the Supreme Court ”.He relied on certain decisions of this Court in which applications for leaveto appeal were refused. I shall presently refer to those decisions. Butbefore I do so I think I should refer to the relevant statute law by whichthe right of appeal to the Privy Council has been granted and regulatedsince its grant.
The right of appeal to the Privy Council was granted by section 52of the Charter of Justice of 1S33 (hereinafter referred to as the Charter),the relevant portion of which reads as follows :—
" And we do further grant, ordain, direct and appoint that it shallbe lawful for any Person or Persons being a Party or Parties to anyCivil Suit or Action depending in the said Supreme Court to appeal toUs, Our Heirs and Successors in Our or Their Privy Council againstany final Judgment, Decree, or Sentence, or against any Rule or Ordermade in any such Civil Suit or Action, and having the effect of a finalor definitive Sentence ”.
The exercise of that right was at first regulated by the Charter itselfand later, till their repeal by the Ordinance, by section 42 of the CourtsOrdinance and section 779 of the Civil Procedure Code. Finally in 1909,when the Ordinance was. enacted in order to bring about uniformity ofpractice in all the Colonies, the provisions of the Courts Ordinance andthe Civil Procedure Code were repealed. The history of the legislationshows that' the Ordinance was merely re-enacting the already existinglegislation in a slightly different form and in a form capable of easyrevision of the" procedural aspects of it-.- –
An examination of the decisions of this Court as to the meaning andscope of the words “ civil suit or action ” in the Charter, tlie legislationthat was repealed by the Ordinance, and the Ordinance itself, shows thatthe question that arises for decision is not entirely free from doubt. . Italso reveals that there arc two conflicting lines of decisions. I shallfirst refer to the line of decisions on which Counsel for the respondentrelics.
In the case of Sockalingam Chefty v. Jllanikam 1, this Court, followingthe decisions of In re .LcdwanlIn re Keppcl Jones 3, and In re De Vos J,held that there was no right of appeal to the Privy Council flora a judg-ment of the Supreme Court in insolvency proceedings. In Soerlsz v.Colombo Municipal Council 5, it was held that- there was no right of appealto the Privy Council from a judgment of the Supreme Court on a case,stated under section 02 of the Housing and Town Improvement Ordinance.That decision was followed in the case of B. M. A. B. A. B. B. itI. v. TheCommissioner of Income Tax G; and Settlement Officer v. I 'under Poortend al. 7. In tiic latter case it was held that no appeal lies as of right to thePrivv Council from an order made by the Supreme Court dismissing anappeal from an order of the District Court made in the exercise of aspecial jurisdiction vested in it under the Waste Lands Ordinance.
I shall next refer to the line of decisions on which the petitioner relies.The first of that line of decisions is Subramanicun Chctty v. Soysa s, whereit was held that proceedings under section 2S2 (2) of the Civil ProcedureCode to have a sale in execution sot- aside on the ground of a materialirregularity in conducting it, was a civil suit or action for the purposeof the Ordinance. The next is the case of In re Goonesinha 9 where itM as held that an application for a writ of certiorari, being an applicationfor relief or remedy obtainable through the Court’s power or authority,constitutes an action and comes within the ambit of the Ordinance. Inthe case of Controller of 1'cxtilcn v. Mohamcd Miya 10. a similar appli-cation for leave to appeal to the Privy Council was granted, but thequestion whether proceedings for a writ of certiorari come within theambit of the expression “ civil suit or action ” does not appear to have-been decided. Hut in the later case of G. S. A'. KodaTan Pillai r. P. B.Mudanayahe n. another application for leave to appeal from an ordergranting a writ of certiorari, it was held that such proceedings came withinthe scope of the expression ‘' action The last of this line of eases isAttorney-General v. I'. Bainasaami Iyengar where it was liold by mybrother Gratiacn that a judgment of this Court in an appeal under section43 of the Instate Duty Ordinance is a judgment in a civil suit or action.
In this state of the decisions of this Court I formed the view, thoughnot without hesitation, that the better course would be to grant the leaveapplied for. I was influenced largely by two considerations—one beingthat leave has been previously granted by this Court in the case of an
– 43 X. L. If. 430.8 23 X. L. P.. 314.* 41 X. L. li. 75.10 49 X. If. 105"51 X. L. If. 350.'= 55 X. /,. If. 572.
> 32 X. L. 11. 05.
– 3 Lorenz 234 (1S-50).
3 {IS77) Pain. 379.
J (IS99) 2 IIrotrue 331.■- 32 X. L. It. 62.
« 37 X. L. 11. Ji7.
•appeal under this very Act, in the ease of Badurdcen r. Commissioner forJhe Registration of Indian and Pakistani Residents 1, without objectionbeing taken either in this Court or in the Privy Council, and the otherthat the question that arises for decision is admittedly one w hich by reasonof its great importance should be submitted to Her 3Iajestv in Council for•decision.
Gratiakx, J.—
At the conclusion of the argument, we over-ruled the objection that theorder of this Court dated ISth Februaiy 1935 under the Indian and Pakis-tani Residents (Citizenship) Act No. 3 of 19-19 (as amended in 1950) hadnot been made in “ a civil suit or action ". It was conceded that thequestion involved in the ajipcal was “ of great general or publicimportance Accordingly, we exercised our discretion in favour of thepetitioner under Rule 1 (B), and granted conditional leave to appeal toHer Majesty in Council. I shall now set out my reasons for holding thatthe proceedings before this Court under the Act constituted a “ civil .suit or action within the meaning of the Appeals (Privy Council)Ordinance.
The Deputy Commissioner had refused the respondent’s applicationfor the registration of himself, his wife and minor children as citizens ofCejdon under the Act. The respondent appealed to this Court againstthe Deputy Commissioner’s order and the present petitioner (as Com-missioner) was made a party to the appeal in accordance with establishedpractice; vide Karuppanan’s case The appeal was in due courseallowed by Sansoni J. and myself, and the present petitioner was directedto tak- appropriate action under section 14 (7) on the basis that a prima,facie case for registration had been established. This is the order{reported in 56 N. L. R. 313) against which the petitioner seeks leave to•appeal to Her Majesty in Council.
In refusing the respondent’s application for registration as a citizen•of Ceylon, the Deputy Commissioner had performed a judicial function,but it may be conceded that the proceedings before him, as a statutorytribunal, did not at that stage constitute a “ civil suit or action ”. Never-theless, a person aggrieved by a refusal of his application has a remedy byway of appeal to this Court, which is then empowered in an appropriatecase to enter a mandatory decree directing the Commissioner (as res-pondent to the appeal) to take further steps under the Act on the basisthat the aggrieved person (as appellant) is prima facie entitled to the bene-fit of registration as a citizen of this country. This decree fundamentallyaffects the civil status of the person concerned and, with great respectto ray Lord the Acting Chief Justice, I had no hesitation in reaching theconclusion that the parties to the appeal were parties to “ a civil suit oraction in the Supreme Court ” within the meaning of the Appeals (Privy-Council) Ordinance.
In this context, the words “civil suit or action" stand primarily in-contradistinction to "criminal ” proceedings. ' In addition, they excludejudgments and orders made by the Supreme Court in the exercise of a
(1953) 54 X.L.R. 4S1 at 4S4.
1 52 N-. L. R. 354.*
statutory jurisdiction which is merely of a consultative or administrativecharacter or in proceedings .which can be equated to arbitration!proceedings. The present application related to an order for a mandatorydecree affecting civil rights and therefore falls within the ambit of theOrdinance. There is no earlier ruling of this Court which compels usto refuse the remedy of an appeal to Her Majesty in Council..
Application allowed.