I. D. JAYASUNDERA, Petitioner, and WEERAPPERUMA and another, Respondents

049-NLR-NLR-V-64-I.-D.-JAYASUNDERA-Petitioner-and-WEERAPPERUMA-and-another-Respondents.pdf


BASNAYAKE, C.J.—Jay asunder a v. Weerapperuma
265.
9'_
1982 Present: Basnayake, C.J., Herat, J., and Abeyesundere, J.
, I. D. JAYASUNDERA, Petitioner, and WEERAPPERUMA
;and another, Respondents
*» *
j |*
l S. Cl 406—Application for Final Leave to Appeal to the Privy Council
in S. C. 220/D. C. Galle 1218 M.B.
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Privy Council—Objection as to right to appeal thereto—Right to take it at the stage ofi application for fined leave—Application by a person to be added as a party to apending action—Refusal by Supreme Court—Right to appeal therefrom to PrivyCouncil—“ Final judgment in a civil suit.or action ”—Civil Procedure Code,8. 18—Mortgage Act, s. 16—Appeals (Privy Council) Ordinance, s. 3, Schedule,Rules 1 (a), 2, 3, 20, 21, 22.
There is nothing in the Rules of the Schedule to the Appeals (Privy Council)Ordinance which bars the party respondent to an application for leave to appealto the Privy Council from submitting td the Court at any stage before the grantof final leave that no appeal lies to the Privy Council; the Court is free at. anystage to determine that question ex mero motu or on objection taken. The grantof conditional leave to appeal, without the respondent being heard,' is hotconclusive on the question of the petitioner’s right to appeal.
A judgment of the Supreme Court reversing an order of a District Judgeallowing the application of a person to be added as a party to a pending mortgageaction is not a final judgment in a civil suit or action within the meaning of, section 3 and rule 1 (a) of the Rules in the Schedule to the Appeals (PrivyCouncil) Ordinance. Nor does the claim to be added as a party to the actionhave a monetary value.
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t .1*
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AlIMPLICATION for final leave to appeal to the Privy Council.
;Y|;: i■i }H. W. Jayewardene, Q.C., with N. R. M. Daluwatte, for 2nd Defendant-Appellant-Petitioner.
H. V. Perera, Q.C., with M. T. M. Sivardeen, for Plaintiffs-Respondents.
Cur. adv. wit.
October 10, 1962. Baskayake, C.J.—
This is an application by Indrapala Dias Jayasundera (hereinafterreferred to as the petitioner) for leave to appeal to the Privy Council fromthe judgment of this Court by which it set aside the following order of theDistrict Judge :—
“ Having heard both sides, in the interests of justice, I make orderunder section 18 of the C. P. C. read together with section 16 of-theMortgage Act allowing the petitioner to file answer in this case. Hewill however pay a sum of Rs. 52/50 as costs of today to the lawyersfor the pTtff. I add the petitioner as the 2nd deft in the case. The 2nd;deft’s answer on 8.10.1956. ”
^lxiv
’ 2~—R 6931 1.883—<11/62)
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BASNAYAKE, C.J.—Jayasundera v. Wecrapperuma
The material facts relating to the petitioner’s application to he addedas party are fully set out in the judgment from which the petitioner seeksto appeal reported under the name of Wecrapperuma v. de Silva in61 N. L. R. 481. For the purpose of this judgment it is sufficient to givea resume of those facts.
By Bond No. 18 of 18th October 1945 Balage Justin de Silva Wama-kulasuriya Gunawardena the 1st defendant-respondent (hereinafterreferred to as the 1st defendant-respondent) and his wife mortgaged toBon. Cyrus Amerasinglic for a sum of Rs. 41,SOO the lands described inthe schedule to that bond. On 28th January 1948 the 1st defendant-respondent’s wife transferred to him all her rights in the lands mortgagedby Bond No. 18. On 1st February 1948 by Bond No. 3514 for a sum ofRs. 47,500 the 1st defendant-respondent mortgaged to DangcderaGamage Seeli Weerappcruma and Bon Fredrick Subasinghe the plaintiffs-respondents (hereinafter referred to as the plaintifFs-respondents) the landsmortgaged by Bond No. 18. It is stated in the attestation clause ofBond No. 3514 that the sum of Rs. 47,500 was retained in the hands ofthe mortgagees for the purpose of paying off the debt due on BondNo. 18. On 11th March 1949 the petitioner filed an action No. 1077/Special in the District Court of Galle against Don Cyrus Amerasinghe for adeclaration that Don Cyrus Amerasinghe held half share of Bond No. 18in trust for him. To that action the 1st defendant-respondent and hiswife were made parties. The petitioner succeeded in that action and inJune 1952 the following decree was entered in his favour :—
“ It is hereby ordered and decreed that the 1st defendant abovenamedholds a one half share of mortgage bond No. 18 dated 18tli October 1945attested by Mr. G. D. Jayasundera of Colombo, Notary Public, and ofall moneys due and payable thereunder and of the security hypothe-cated thereby and of all moneys received by the said 1st defendantthereunder in trust for the plaintiff abovenamed.
“ It is hereby also ordered and decreed that the 1st defendant above-named do pay to the plaintiff above named the sum of Rupees TwentyThousand Nine Hundred (Rs. 20,900) and a one half share of all interestreceived by the said 1st defendant under the aforesaid mortgage bondNo. 18 from 14th January 1946 up to the date of this action, namely,11th March 1949. ”
An appeal to this Court from that order was dismissed. The petitionerthereupon took steps to execute his decree by obtaining writ of executionagainst Don Cyrus Amerasinghe. He also caused Don Cyrus Amerasingheto be examined under section 219 of the Civil Procedure Code. Thepresent action on Mortgage Bond No. 3514 in which the petitioner seeksto appeal to the Privy Council was instituted thereafter by the plaintiffs-respondents against the 1st defendant-respondent to enforce the bond.The petitioner sought to intervene and asked that he be added as a partydefendant. The plaintiffs-respondents opposed it. The District Judgeallowed the application, but in appeal his judgment was reversed. Thepetitioner now seeks to appeal to the Privy Council and leave has been
BASNAYAKE, C.J.—J ay asunder a v. Weerapperuma
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granted in the first instance under rule 3 of the Rules in the Schedule tothe Appeals (Privy Council) Ordinance (hereinafter referred to as theSchedule). The leave so granted is known in practice as conditionalleave and is so referred to in some of the rules in the Schedule (rules 20and 21). Having complied with the conditions the petitioner nOw asksfor final leave to appeal. His application is opposed by the plaintiffs-respondents on the ground that no appeal lies as of right from thejudgment of this Court under section 3 and rule 1 (a) of the Rules in theSchedule to the Appeals (Privy Council) Ordinance * l.
• Learned counsel for the petitioner at the outset of this hearing, by wayof preliminary objection, contended that the plaintiffs-respondents werenot entitled to oppcse his application at the stage of final leave as thepetitioner had already been granted leave under rule 3 of the Rules in theSchedule and that the objections that may be taken at the present stagewere only objections on the ground that the conditions subject to whichleave had been granted bad not been fulfilled. ‘Learned counsel’s sub-mission proceeds on the assumption that at the stage of the grant of leaveunder rule 3 the Court in every case decides, aDd has in this case decided,that the petitioner is as of right entitled to appeal to the Privy Council.The grant of leave under rule 3 does not in our view presuppose that theCourt has decided that the person seeking to appeal to the Privy Councilhas a right to do so. It is not usual for tins Court, and the Rules do notrequire it, to examine the question of the applicant’s right to appeal tothe Privy Council unless the application is opposed. It is generallyassumed that the applicant has the right. The Rules do not providethat, at the stage at which the conditions are imposed, notice of the 'hearing of the application for leave under rule 3 should be given to therespondent. But rule 22 provides that the Court, on an applicationfor final leave to appeal, may inquire whether notice or sufficient noticeof the application has been given by the appellant to all parties concerned,and if not satisfied as to the notice given, may defer the granting of thefinal leave to appeal. This rule speaks of notice of the application andnot of the intended application provided for in rule 2. By implicationit seems to impose on the appellant the obligation of giving notice of theapplication ce to all parties concerned ”, and not merely to the oppositeparty as in the case of the intended application. What is the applicationcontemplated in rule 22 ? It would appear from the context that it isthe application for final leave. It is inconceivable that so much impor-tance would be attached to the notice of the application for final leavebeing given “ to all the parties concerned ” if the only objection a party
1 Rule 1 of the Rules in the Schedule to the Appeals (Privy Council) Ordinance :
1. Subject to the provisions of these rules, an appeal shall lie
(o) as of right, from any final judgment of the Court, where the matter in disputeon the appeal amounts to or is of the value of five thousand rupees or upwards, orwhere the appeal involves directly or indirectly some claim or question to or respect-ing property or some civil right amounting to or of the value of five thousand rupeesor upwards : and
(6) at the discretion of the Court, from any other judgment of the Court, whetherfinal or interlocutory, if, in the opinion of the Court the question involved in theappeal is one which, by reason of its great general or public importance or otherwise,ought to be submitted to His Majesty in Council for decision.
2GS
BASNAYAIvE, C.J.—Jayusundera v. Wcerapperuma
notiecd may raise is that the security is bad or insufficient and isprecluded from raising the objection that the appeal does not lie. All theparties concerned are a wider group than the “ opposite party ” to whomnotice of the intended application is required to be given and if all theparties concerned are not respondents to the application it would be futileto give them notice if the only objection those who are not respondentscan take is that the security is insufficient for.the reason that not beingrespondents they would not be concerned about the sufficiency or other-wise of the security, but they may be interested in opposing the applicationon the ground that an appeal does not lie. The Court would, unless it isprecluded by any positive rule of law, be acting • contrary to law if itpermitted an appeal that does not lie to go forward. Even where noticehas been given of tho application under rule 3, if the Court is satisfiedeven at the stage of final leave that the applicant is in law not entitledto leave the Court is not powerless to so hold. This rule would fail of itspurpose if, when a person so noticed takes objection to the grant of finalleave on the ground that there is n o right of appeal, the Court is precludedfrom upholding his objection. There is nothing in the Rules which barsthe party respondent to an application for leave to appeal to the PrivyCouncil from submitting to the Court at any stage before the grant offinal leave that no appeal lies to the Privy Council, and the Court is freeat any stage to determine that question ex mero motu or on objection taken.This Court would be acting contrary to law if it were to grant final leavein a case in Avhich there is no right of appeal merely on the ground that thegrant of conditional leave is conclusive on the question of the petitioner’sright to appeal. The Court cannot be regarded as having decided anymatter to which its attention has not been drawn and which it has notbeen invited by the parties to decide.
It was contended by learned counsel for the petitioner that the noticeunder rule 2 afforded the respondent an opportunity of being heard inopposition to the application. We are unable to agree with that conten-tion. Rule 2 of the Rules in the Schedule requires that the applicationto the Court for leave to appeal should be made by petition within thirtydays from the date of the judgment to be appealed from and that theapplicant shall, within fourteen da^s from the date of the judgment,give the opposite party notice of such intended application. This rulemeans that the application should be lodged in the Registry within thethirty days and not that it should come up for hearing within that time.So that the notice that the opposite party receives is a notice that theapplicant intends to apply for leave to appeal to the Privy Council withinthe number of days specified in the notice, which can never be more thanthirty nor less than sixteen. The notice of the intended applicationis in effect a notice that the applicant intends to lodge in the SupremeCourt Registry a petition for leave to appeal to the Privy Council.According to the present practice the application is listed for hearing on adate on which the counsel for the petitioner informs the Registrar thatho is ready to support the application. That date is in some cases manymonths after the application has been lodged in the Registry. In the
BASNAYAKE, C.J.—Jayasundera v. Weerapperuma
269
instant case the application was lodged on 8th October 1958 and it cameup for hearing for the first time on 16th January 1959. The Rules in theSchedule do not require that the respondent should be given notice of theactual date of hearing of the application and applications are grantedin the first instance under rule 3, as in the instant case, without therespondent being heard. Nevertheless some Judges do not grant leavein the first instance except after notice has been issued and served on therespondent. If the notice under rule 2 is treated as a notice of the hearingof the application for leave, an obligation which the Rules do not providewould be imposed on the opposite party so noticed. It would becomeobligatory on him or his proctor to keep in touch with the Registry fromthe day he receives the notice under rule 2 till the application is lodged,and thereafter to ascertain when it would be listed for hearing. Suchan obligation is not implied in rule 2 and the opposite party is under.nolegal obligation to retain counsel and undergo the expense of visiting theRegistry in person or by proctor in order to ascertain first whether anapplication has been lodged in pursuance of the notice of intention toapply for leave to appeal and if such an application is lodged when itwould come up for hearing. As the Rules do not impose such anobligation a respondent who has not been noticed by the Court to appearat the hearing of the application in the first instance cannot be said tohave been afforded an opportunity of being heard and no order can bemade to his prejudice without offending the rule of audi alteram partem.In dealing with applications for leave to appeal to the Privy Councilthe better course would be for the Court to issue notice on the respondentbefore granting leave under rule 3. In the instant case that has not beendone and the respondent is not in our opinion precluded from objectingto the grant of leave at this stage, although leave under rule 3 has beengranted. It cannot be said that in granting that leave the Court decidedthe question that the petitioner was entitled as of right to leave underrule 1 (a). We therefore overruled the preliminary objection and permit-ted learned counsel for the respondent to make his submission thatthere was no appeal as of right from the judgment of this Court, and calledupon1 him to begin as.he was the objector..
Is shall now turn to the objection that the judgment of this Court bywhich it set aside the learned District Judge’s order allowing the petitionerto. file answer in the case is not a judgment from which the petitioner isentitled to leave as of right. Section 3 of the Ordinance states that theright of parties to civil suits or actions in the Supreme Court to appealto Her Majesty against the judgments and orders of such Court shall besubject to and regulated by the Rules in the Schedule. Rule 1 (a) of theRules in the Schedule states that an appeal shall lie as of right from anyfinal judgment of the Court where the matter in dispute on the appealamounts to or is of the value of five thousand rupees or upwards, or wherethe appeal involves directly or indirectly some claim or question to orrespecting property or some civil right amounting to or of the value offive thousand rupees or. upwards. It would appear from rule 1 (6) thatthe words “final judgment” contemplated inrule 1 (a) is thefinal judgment
2*R 5981 (11/62)
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13ASNAYAK.E, C.J.—J ayasundara v. 1V ccrapper tuna
in a civil suit- or action as contradistinguished from an interlocutoryjudgment in such suit or action. Now the suit or action before us is theaction on the Mortgage Bond No. 3514. That action is still pendingand has not yet been decided and in that action no judgment has yetbeen given. The application of the petitioner to be added as a partyis not a civil suit or action and the order thereon does not dispose of theaction in which that application was made. The words “ final judgment ”have acquired a meaning which is now well established. It is a judgmentwhich leaves nothing open to further dispute and which sets at rest thecause of action between the parties. It may also be defined as a judgment(which expression includes air order or decision) which decides therights of parties respecting the subject-matter of the suit and concludesthem until reversed or set aside in appeal. Of the various definitions ofthis expression which are to be found in law dictionaries I prefer thatgiven in Sweet’s Law Dictionary which is as follows : “ A final judgment,is one which puts an end to the action by declaring that the plaintiff hasor has not entitled himself to the remedy he sued for, so that nothingremains to be done but to execute the judgment. ” The meaning I havegiven to the expression "final judgment” and the definition quoted fromSweet’s Law Dictionary are in harmony with the opinion expressed inFernando v. Chittambaram Ghettiar1 and in Abdul Rahman <5 others v.D. K. Cassim «f? Sons * 2 cited to us by learned counsel. Although in thelatter case the Board was construing the words “final order” in section100 (a) of the Indian Civil Procedure Code, the considerations referredto therein arc applicable to the words “final judgment” in this context.Section 109 (a) 3 is not widely different from rulel (a) and the followingobservations of the Board on that provision support the meaning I havegiven to the expression “final judgment” :—
“ Lord Cave in delivering the judgment of the Board laid down,as the result of an examination of certain cases decided in the EnglishCourts, that the test of finality is whether the order c finally disposesof the rights of the parties’, and he held that the order then underappeal did not finally dispose of those rights, but left them ‘ to be deter-mined by the Courts in the ordinary way ’. It should be noted thatthe appellate Court in India was of opinion that the order it had made‘ went to the root of the suit, namely, the jurisdiction of the Courtto entertain it ’, and it was for this reason that the order was thoughtto be final and the certificate granted. But this was not sufficient.The finality must be a finality in relation to the suit. If, after theorder, the suit is still a live suit in which the rights of the parties havestill to be determined, no appeal lies against it under s. 109 (a) of theCode.”
} (194S) 49 N. L. it. 217.
3 (1933) A. I.'M. (Privy Council) 59.
3 ticclion 109 (a) of the Indian Civil Procedure Code :
109. Subject to such rules as may, from time to time, by His Majesty in Councilregarding appeals from the Courts of British India and to the provisions hereinaftercontained, an appoal shall lie to His Majesty in Council—
(a) from any decrco or final order passed on appeal by a High Court or by anyothor Court of final appeal jurisdiction.
271
Cargo and Tanlcship Management Corporation v.
The Ship “ Valiant Enterprise ”
In the instant application not only is the judgment from which theapplicant seeks to appeal to the Privy Council not a final judgment butthe subject of the dispute is also not of the value prescribed in the rule.The matter in dispute was the claim to be added as a party to the action.That claim has no monetary value. Nor did the appeal involve directlyor indirectly a claim or question to or respecting property or some civilright amounting to five thousand rupees or upwards. Rule 1 (b) providesan appeal from other judgments than final judgments, whether they befinal or interlocutory, where the grant of leave is at the discretion of theCourt, if in the opinion of the Court the question involved in the appealis one which, by reason. of its great general or public importance orotherwise, ought to be submitted to His Majesty in Council for decision.The petitioner does not seek to come under the rule 1 (&) and it is notnecessary to consider that limb of rule 1. The application is thereforerefused with costs.
We were referred by learned counsel on both sides to several decisionsboth of this Court and of Courts elsewhere. But it is not necessary forthe purpose of this application to refer to them specifically as thosedecisions rest on the special circumstances of each case.
Herat, J.—I agree.
Abeyesundere, J.—I agree.Application refused.