033-NLR-NLR-V-57-K.-SUBRAMANIAM-Petitioner-and-K.-KUMARASWAMY-et-al-Respondent.pdf
1955Present :Gunasekara, J., and Sansoni, J.
K.SUBRAMANEAM, Petitioner, and K. KUMARASWAMYet al., Respondents
<5. C. 403—Application for Conditional leave to appeal to thePrivy Council in D. C. Point Pedro 4,320
Res adjudicate—Point of law—Erroneous decision thereon—Right of parlies to raisesame point of law in another suit. •
Appeals (Privy Council) Ordinance (Cap. So)—Rule 1 (a) caul (b) of Schedule—“ Directly or indirectly ”—“ General or public importance ”.
An erroneous decision on a pure quoslion of law will opornto ns res adjudicalain regard only to tho subjoct-mntter of the suit in which it is given. It doesnot prevont tho Court from subsequently deciding tho same question correct Iv-in another suit between tho same parties when tho subject-matter of tho suitis different. Thoreforo, if the subjcct-mattor of a suit is a land of tho valueof loss than Rs. 5,000, tho aggrieved party seoking to appeal to tho l’rivyCouneil on a point of law is not entitled to claim that tho appeal involves“ indirectly ” a quostion respecting proporty of tho value of over Rs. 5,000within tho moaning of Rule 1 (a) of the Schedule to tho Appeals (Privy Council)Ordinanco merely bccauso a disputo between tho same parties regarding other-lands of over Rs. 5,000 in value will involvo tho same point of law.
Held further, that tho discretion vestod in the Supremo Court under Rule1 (b) of tho Schodulo to tho Appeals (Privy Council) Ordinanco will not boexorcised in favour cf a party when his only ground for invoking tho Rule isthat ho is dissatisfied with tho decision of tho Supreme Court.
jA.PPLICATIOX for conditional leavo to appeal to the Privy Council.
S. J. V. Chclvanayakam, Q.C., ■with H. TH Tambiah and S. Sharvananda,for the 1st defendant- petitioner.
C. Renganalhan, -with T. Arulanandhan, for the 8th, 10th and 11thdefendants respondents.
Cur. adv. cult.
May 2, 1955. Sansoni, J.—•
This is an application by the 1st defendant for conditional leave toappeal to tho Privy Council against the judgment of this Court whichis roported. in 56 N. L. R. 44. The application is based on two grounds :(1) that the question of law decided in that judgment affects tho 1st
‘ (1950) 51 X. L. R. 322.
defendant’s rights in other properties valued at over Rs. 100,000, andtherefore “ tho appeal involves diroctly or .indirectly a question respectingproperty of tho value, of Rs. 5000 or upwards ” within tjie meaning ofRule 1 (a) of tho Schedule to tho Appeals (Privy Council) Ordinance,Cap. S3 ; (2) that “ the qxiestion involved in tho appeal is one which, byreason of its great general or public importance ought to be submittedto Her Majesty in Council for decision ” under Rule 1 (b) of that Schedule.The Sth, 10th and lith defendants object to the application being grantedon either ground.•
The question of law involved, and I should add that it is a pure questionof law and nothing else, is the correct interpretation of certain provisionsof the Jaffna Matrimonial Rights and Inheritance Ordinance (Cap. IS)and Ordinance Xo. 5S of 1947, by which it was amended. Tho 1st defen-dant by deed acquired soveral allotments of land from time to tinioduring tho subsistence of his marriage with ono Easammah. She hitsdied leaving her husband (tho 1st defendant) and four children (Sth to11th defendants). The judgment against which it is sought to appealdecided the rights of the 1st, Sth, 9th, 10th and 11th defendants in respectof ono land so acquired.•
Mr. Chelvanayakam submits that as t-Jiis judgment is res adjudicateas regards the rights of those parties in respect of all the other lands whichwere similarly acquired by the 1st defendant, it is necessary to have thedecision considered by the Privy Council. If this submission werecorrect it would be! a strong reason for allowing this application. ButMr. Renganathan challenges its correctness and lie relies on tho judgmentin Katirilamby v. Parupathipillai 1. It was thero decided that an erro-neous decision on a puro question of law will operate as res adjudicatequoad the subject matter of the suit in which it is given, and no further.Unlike a decision on a question of fact or of mixed Jaw and fact, anerroneous decision on the law does not prevent the Court from decidingtho same question arising between the same parties in a subsequent suitaccording to law. Caspersz on Estoppel was cited as an authority byGarvin, A. J., in his judgment (de Sampayo, J., agreeing). This judgmentwas followed in Gunaralne v. Punchi Banda 2 by Schneider, J., (Maar-tensz, A.J., agreeing). In viow of theso two decisions of this CourtI do not consider it necessary to discuss the other authorities cited intho course of tho argument. ^Assuming, then, that tho other landswhich were purchased upon other deeds by the 1st defendant duringthe subsistence of his marriage with Rasanunah were purchased undercircumstances which were exactly similar to those under'which tholand now in dispute was purchased, tho rights of the parties under thosedeeds and the manner of devolution of those lands upon tho death ofRasammah raise pure questions of law to which tho rulo already enun-ciated would apply. It should, therefore, be open to the 1st defendant,if he is so advised, to canvass the correctness of tho judgment alreadygiven when those questions arise for decision. Tho first ground of hisapplication therefore fails.
1 {1021) 23 X. L. JR. 209.* {1927) 29 -V. L. B. 249.
■ With regard to the second ground, Rxile 1 (6) vests a discretion in thisCourt. , Kow soeing that the valuo of the interest in dispute in t hisaction is less than Rs. 1000, the expense involved in- an appeal to thePrivy Council seems to mo to bo out of all proportion to that interest.Tho respondents will suffer serious prejudice for they do not appear tobe able to bear the oxpensc involved in retaining Counsel to representthorn. This is not a ease .where there are conflicting decisions of thisCourt on tho particular question of law involved. Tho only point whichcan be urged in support of the second ground seems to be that the 1stdofendant-petitioner is dissatisfied with the decision of this Court : butthis.is no reason for allowing the application. I do not consider thisa case in which our discretion should bo exercised in favour of thoapplicant.
I would refuse this application with costs.
Gusasekaka, J.—I agree..
.’Application refused.