023-NLR-NLR-V-42-KANAGASUNDERAM–v.-PODIHAMINE.pdf
Kanagasunderam v. Podihamine:
97
1940 Present: Howard C.J., Moseley S. P. J., and Soertsz J.KANAGASUNDERAM o. PODIHAMINE.
187—C. R. Avissawella, 20.
Appeal—Order of costs—Land Acquisition Ordinance, s. 31 (1) (Cap. 203).
There is no right of appeal to the Supreme Court from an order oftaxation of costs made under section 31 (1) of the Land AcquisitionOrdinance.
Government Agent, Uva v. Banda (13 N. L. R. 341) not followed.
T
HE Government Agent and the defendants agreed as to the amountof compensation to be allowed under section 9 of the Land Acqui-
sition Ordinance (Cap. 203) ; but, as the first defendant claimed theentirety of the compensation while the second claimed one-twenty-fifthof it, the third one-tenth, the fourth one-fourth, and the fifth one-fortieth,the Government Agent referred the matter under section 11 of theOrdinance to the Court of Requests. In the statements of claim filed inCourt, the third defendant claimed the value of the plantation. Afterinquiry' the Commissioner awarded the compensation deposited in Courtless the costs of the Crown to the first defendant. In the taxation ofcosts under section 31 of the Ordinance the Court fixed the costs incurredby the Crown at Rs. 12.75. The first defendant appealed against theorder of costs.
The Counsel for the respondent objected to the hearing of the appealon the ground that there was. no appeal from an order of taxation madeunder section 31 (1) of the Ordinance. The appeal was ultimatelyreferred to a Bench of three Judges on the preliminary objection.
H. H. Basnayake, C.C., for the respondent.—The Land AcquisitionOrdinance is a special statute which creates special machinery for deter-mining disputes between the acquiring authority and the persons whoselands are acquired. The District Court and Court of Requests are specialtribunals for the purposes of the Ordinance and can exercise when actingthereunder only the powers given by the Ordinance. The powers andprocedure under the Civil Procedure Code are not available except wherethey are expressly conferred.
[Soertsz J.—What is the procedure in Court of Requests landacquisition cases?]
By section 11, Court of Requests have jurisdiction similar to the DistrictCourt.
[Soertsz J.—-In uncontested money cases there is no right of appealunder section 833 of the Civil Procedure Code, is there?]
4 J. N. B 17623 (5/535
98Kanagasunderam v. Podihamine.
This is not a land case nor a money case. In an uncontested money casecosts would be Rs. 10.
Right of appeal is given in various Ordinances. Vol. V., Chapter 53,Municipal Councils Ordinance the appeal section is 124 (3). Section 32 ofthe Land Acquisition Ordinance is not capable of extension so as to give aright of appeal. Rights must be specially conferred. Rules of procedureand practice cannot be extended. Right of appeal must be express, andcannot be implied or inferred. Section 32 cannot in the light of authority beextenred. G.A., Uva v. Banda1 does not apply to the present case.An appeal is a right of entering a superior Court and invoicing its aid.(A. G. v. Simona at page 1209). G. A., TJva v. Banda was decided beforesection 30 was amended by 1911 Ordinance. Pitche Thamby v. Mariker 18N.LsR. at page 117 deals with special right of appeal. There is no right ofappeal where Legislature does not give a right of appeal. Creation of newright of appeal is plainly an act which needs legislative authority. A. G. v.H. J. Sillem", vide Revised English Reports 11 at page 1207. Appeal doesnot lie unless expressly given by the statute (King v. Joseph Hanson.n)Appeal cannot be given by implication, but must be given by expresswords (Queen v. Stock; 8 Adolphus & Ellis 405'). Under the Housingand Improvement Ordinance there is no right of appeal from a DistrictCourt to the Supreme Court, only a District Court may state a case(32 N. L. R. at page 92 Sangarapillai v. Municipal Council, Colombo).In maintenance cases, only orders from certain sections are appealable.
(Kathirasipillai v. Subramaniam. “)<
Court of Requests provides for taxation by chief clerk (section 833,Civil Procedure Code). Section 214 will not apply to Court of Re-quests. There must be a statutory right of appeal (Rangoon Co., Ltd.v. Collector, Rangoon; Law Reports Indian Appeals (Vol. 39, page 139.")In Special Officer v. Mottlavalla, it was held that proceedings under LandAcquisition are under a special statute. In In re Said Bank Trustees “—a case under Land Clauses Consolidation Act—the Court has nojurisdiction over a taxing master. Even in matters of review the statutemust give power of appeal. Costs must be given by statute. Section30 of Land Acquisition Ordinance provides for costs. The Court hasno inherent power to grant costs. (Vol. IV. Encyclopaedia of England,3rd e., p. 66.) Commissioner of Requests has no right to review thetaxation by the chief clerk. Section 55 of the Civil Procedure Code speaksof “chief clerk or secretary”. The Secretary refers to District Courtand chief clerk to Court of Requests.
N. Nadarajah, for appellant.—At the time the Acquisition Ordinancewas passed rule 41 gave a right of appeal. Rule 41 was incorporated undersection 32 of the Land Acquisition Ordinance. Ordinance No. 2 of 1889 re-pealed rule 41, and sections 208-214 of the Civil Procedure Code (OrdinanceNo. 2 of 1889, took its place. Section 214 of the Civil Procedure Codereproduces rule 41. Re the jurisdiction regarding costs 13 N. L. R. 341
‘ 13 A’. L. R. 241.* 7 c. h. 11'. 94.
• 10 H. L. Cases 703.‘ 14 Bombay L. R. 833.
3 4 Barnwell and Alderson 518.7 14 Bombay B. R. 1194.
*112 English Reports 892.6 * n n T p warn '7
HOWARD C.J.—Kanagasunderam v. Podthamine.
99
(G. A., Uva v. Banda) a full bench decision is binding. There is a right ofappeal, vide Wood Renton J. at page 344. Court of Requests procedure is atPart (X.), Civil Procedure Code. Section 833 of the Civil Procedure Codedoes not contradict the sections regarding costs. Section 214 of the CivilProcedure Code refers to registrar or secretary or chief clerk as the case maybe. Section 214 applies to the Court of Requests too. In Sehedule I. ofthe Civil Procedure all repealed rules are set out. The case G. A., Sabara-gamuwa v. Asirwathan' held that rules in sections 18 and 32 are stillexisting. In 39 Indian Appeal Cases at pp. 197 and 200, that an appealdoes not exist as of right. Section 32 of the Land Acquisition Ordinanceis wide enough to include sections 209-215 of the Civil Procedure Code. Itis too late in the day now to say there is no right of appeal specially aftersections 30 and 29. Section 31 lets in the entire machinery by which theCivil Procedure Code functions. The House of Lords Case can be distin-guished. It deals with “ process practice and mode of pleadings ”.
[ Soertsz J.—Sections 26 and 35 of the Ordinance are necessarilysuperfluous then if right of appeal lies ?]
No. They are necessary. The Land Acquisition Ordinance has specialmachinery. Section 30, sub-section (1), deals with costs. Inquiry undersection 11 is subject to an appeal under section 14. Section 34 deals withapportionment “inter se only”. Section 31 allows the taxation of thebill. (Vide Walter Pereira, pp. 133 and 134, Vol. I., 1913). . Similarlegislation need not be referred to. Therefore the cases cited cannothelp.
H. H. Basnayake, C.C., in reply.—Section 32 regulates procedure andpractice. Right of appeal is not procedure. See Poyser v. Miners2.
Cur. adv. vult.
December 19, 1940. Howard C.J.—
This case has been referred to a Bench constituted by three Judges ona preliminary objection by Counsel for the respondent that no appeal liesfrom an order of taxation made under section 31 of the Land AcquisitionOrdinance (Cap. 203 of the Legislative Enactments). The facts leadingup to the appeal in this case are as follows : — The amount of compensationto be paid by the Government for the land acquired was agreed on by theGovernment Agent and the parties interested under section 9 of theOrdinance. Rival claims to the whole of the compensation were madeby the first and third defendants. On August 12, 1940, the claim madeby the third defendant was withdrawn and decree was entered awardingthe compensation to the first defendant, less Crown costs. There hasbeen considerable argument as to whether the award was made undersection 35. The Government Agent in this case made his inquiry undersection 7 with the result that (1) the compensation was agreed, and (2)rival claims were set up to such compensations. A question, therefore,arose under section 11 (e) “ respecting the title to the land or any rightsthereto or interests therein arising between two or more persons ”. Inthese circumstances the Government Agent referred the matter to thedetermination of the Court of Requests. It is conceded that the
1 29 -V. L. R. 367.* 7 .4. B. D. (1881) p. 329 nt para. 333.
100
HOWARD C.J.—Kanagasunderam v. Podihamine.
Commissioner of Requests on such reference has acted under the provisionsof Part IV. of the Ordinance. The award of the Assistant GovernmentAgent stated as follows : —“ And that the said amount be apportioned inthe following manner, viz., in a manner to be determined by Court”.Hence the Assistant Government Agent deemed the matter to be one ofapportionment and referred it as such to the Commissioner of Requests.
If Part IV. is inapplicable, the only other provisions in the Ordinancethat could possibly confer jurisdiction on the Court to determine thematter in dispute are contained in Part III. But the phraseology ofseetions 14-29 indicates that these sections have no application when theamount of compensation is agreed as between the Government Agentand interested parties. I have^ therefore, come to the conclusion thatthe matter in dispute was one of apportionment. Being a dispute as tothe apportionment after the amount of compensation had been settledunder section 9, the Commissioner of Requests has acted under sections34 and 35. Although one of the claimants did not pursue his claim andthe question at issue was settled, the amount of compensation to be paidto the first defendant was made on order of Court dated August 15, 1940.This was, therefore, a decision under section 35 and in such circumstancessubject to appeal to the Supreme Court. It is also provided that suchappeal “shall be prosecuted within the time and in the manner andsubject to the rules and practice provided for or observed in appeals frominterlocutory orders of District Courts ”. Part IV. is silent with regardto costs. The decision on the apportionment is alone subject to appeal.Moreover the Government Agent is not interested in the decision. Henceit could be argued that no costs can be awarded. On the other handalthough no mention is made in Part IV. as to the applicability of sections30, 31 and 32 to a reference under this Part, I consider that their phraseo-logy indicates that they were intended to apply to such a reference.Section 30 (3) obviously contemplates the award of costs to the Govern-ment; Agent when'a question arises as to the correct apportionment of thecompensation. Moreover in the Government Agent, Uva v. Banda1, aFull Bench decided that such costs were payable. Section 31 (1) alsoprovides that the costs in all legal proceedings when there has been areference to the Court, shall be taxed by the Court. The drafting and' arrangement of the provisions of this Ordinance are certainly difficult tofollow but the words of section 31 (1) are wide enough to include areference under section 34. I agree with the contention of Mr. Basnayakethat this Court would have no right to entertain an appeal where thatpower is not expressly given by statute. The cases cited by him, namely,Sangarapillaiv. Chairman, Municipal Council, Colombo1; Fernando v.Chairman, Municipal Council, Colombo3; Attorney-General v. Sillem * ;The King v. Joseph Hanson*; and The Queen v. Stock*, are authority forthis proposition. In The King v. Joseph Hanson, Abbot C.J. stated asfollows: —
“For the rule of law is, that although a certiorari lies, unless expresslytaken away, yet an appeal does not lie, unless expressly, given by statute. ”
1 13 N. L. R. 341.• 11 E. R. 1200.
3 32 N. L. R. 92.i5 106 E. R. 1027.
3 38 N. L. R. 75.6 112 E. R. 892.
HOWARD C.J.—Kartag asunder am v. Podihamine.
101
This dictum was affirmed by Lord Denman C.J. in The Queen v. Stock(supra) with the words “ Abbot C.J. says, in Rex v. Hanson, speaking, notfrom any authority, but from his own observation, that a right of appealcannot be implied, but must be given by express words In his judgmentin Attorney-General v. Sillem (supra) Lord Westbury stated as follows :—“ The creation of a new right of appeal is plainly an act whichrequires legislative authority. The Court from which the appeal isgiven, and the Court to which it is given, must both be bound, and thatmust be the act of some higher power. It is not competent to eithertribunal, or to both collectively, to create any such right. Supposethe legislature to have given to either tribunal, the fullest power ofregulating its own practice or procedure, such power would .not availfor the creation of a new right of appeal which is in effect a limitationof the jurisdiction of one Court, and an extension of the jurisdiction ofanother. . A power to regulate the practice of a Court does not involveor imply any power to alter the extent or nature of its jurisdiction.”The question for decision in this case was whether section 26 of 22and 23 Viet. c. 21 permitted the Lord Chief Baron and two or more Baronsof the Court of Exchequer to make rules and orders creating a right ofappeal. Section 26 was worded as follows : —
“ It shall be lawful for the Lord Chief Baron and two or more Baronsof the Court of Exchequer from time to time to make all such rules andorders as to the process, practice and mode of pleading on the revenueside of the Court, and as to the allowance of costs, and for the effectualexecution of this Act and the intention and objects thereof, as mayseem to them necessary and proper ; and also from time to time, byand such rule or order to extend, apply, or adapt any of the provisionsof the ‘ Common Law Procedure Act, 1852 ’, and the ' Common LawProcedure Act, 1854 ’, and any of the rules of pleading and practice onthe plea side of the said Court to the revenue side of the said Court, asmay seem to them expedient for making the process, practice and modeof pleading on the revenue side of the said Court-as nearly as may beuniform with the process, practice, and mode of pleading on the pleaside of such Court.”
It was held by a majority of the Co'urt that the words—
“ ‘ process, practice, and mode of pleading ’ are not used in theabstract, but with reference to existing Courts, the word ‘ practice ’means the rules which guide the mode of proceeding within the wallsof the Court itself ; and the later words of the section give the Baronsthe power ‘ extend, apply and adapt ’ to the revenue side of theCourt of Exchequer no more than the ‘ process, practice, and mode ofpleading ’ which were already in use on the plea side of that Court, andthese words bear in the second part of the section the same meaning .asin the first part of the section.
Held, therefore, that rules, which, by applying to cases on the revenueside of the Exchequer, the provisions of the Common Law ProcedureAct of 1854 respecting appeals on motions for a new trial, gave an appealin such motions on the revenue side, were rules made without legislativeauthority, and were consequently void.”
102HOWARD C.J.—Kanag asunder am v. Podihamine.
In the course of his judgment Lord Westbury stated as follows : —
“ An appeal is the right of entering a superior Court, and invokingits aid and interposition to redress the error of the Court below. Itseems absurd to denominate this paramount right part of the practiceof the inferior tribunal. The mode of proceeding may be regulatedpartly by the practice of the inferior, and partly by the practice of thesuperior tribunal ; but the appeal itself is wholly independent of theserules of practice. The right to bring an action is very distinct from theregulations that apply to the action when brought, and which constitutethe practice of the Court, in which it is instituted. So the 34th and35th sections of the Act of 1854 which create new rights of appeal,and the 36th section which defines and binds certain Courts to receiveand determine such appeals, cannot with any accuracy or propriety betermed provisions which relate to process, practice, or mode of pleading,either in the Court appealed from, or that to which the appeal is to bemade. They are enactments creating new relations between certainCourts in cases which are defined, and they are as distinct from rulesof practice as international is distinct from municipal law.”
In applying the principles formulated by this case the following passagefrom the same judgment is also relevant: —
“ The principal argument of the Attorney-General was, that thewords, ‘ process, practice, and mode of pleading ’ were equivalent to theword ‘ procedure ’, and that the word ‘ procedure ’ denotes the wholecourse of a cause, from its commencement in the Court of First Instanceuntil its final adjudication in the ultimate Court of Appeal; and hethen contends that a provision giving a new right of appeal may beproperly termed a provision relating to the procedure in a cause. Icannot accept either of these two positions. The words ‘process,practice, and mode-of pleading ’ are not used in the abstract, but alwayswith reference to some Court or Courts ; and so used, they have a wellunderstood and definite meaning. They are used in the 26th sectionin connection with the plea side and revenue side of the Court ofExchequer, and properly denote the proceedings in a cause on eitherside within the walls of that tribunal. They have no extra territorialoperation, but if they received the larger construction of the Attorney-General, it would follow that under 26th section the Barons of theExchequer would have power to make rules as to procedure in theHouse of Lords—which would be absurd
The question, therefore, for our consideration is whether the languageof sections 31 and 32 of Cap. 203 gives not merely by implication but byexpress words a right of appeal. It is argued that the words “ the pro-ceedings in any District Court taken under this Ordinance shall be subjectso far as the same can be made applicable to the rules, practice andprocedure provided for or observed at the time of such proceedings incivil suits ”, do give such a right. Applying the principles laid down in„Attorney-General v. Sillem the.'word “proceedings” are limited by thewords “ in any District Court ’’ and do not denote the whole course ofan action fronu its/commencement in the Court of first instance until itsfinal adjudication in the ultimate Court of Appeal. The phraseology of
The King v. Mudalihamy.
103
the section merely regulates the practice and procedure of proceedings inthe District Court under Cap. 203 by importing the provisions providedfor or observed in ordinary civil suits.1
Counsel for the appellant has argued that a right of appeal from anorder of taxation under section 31 (1) is recognized as existing undersection 32 by the judgment of Wood Renton J. in the Government Agent,Uva v. Banda. The right of appeal does appear to be recognized in thefollowing passage : —
“ There can be no doubt but that, under section 209 and following ofthe Civil Procedure Code, it would be competent for a Court to ordereven a successful party to pay costs which had been rendered necessaryby his own conduct—the ground on which the District Judge has reliedin the present case—and also that the Supreme Court would notinterfere with the exercise of that discretion in appeal, unless it wasclear that a manifest injustice had been caused by its exercise.”
The question of the right to appeal was not argued in that case, and inview of the principles expounded in clear and unequivocal language inthe English cases I have cited I am not prepared to accept the contentionthat Government Agent, Uva v. Banda is an authority for the propositionthat such a right exists.
A further argument against the contention that a right of appeal ascontended for exists lies in the fact that rights of. appeal are given inclear and unequivocal language by sections 26 and 35 whereas no suchlanguage is employed in section C. J. If^section 32 does confer a right ofappeal, sections 26 and 35 so far as they confer such a right are redundant.
For the reasons I have given the preliminary objection must be upheldand the appeal dismissed with costs.
Moseley S.P.J.—I agree.
Soertsz J.—I agree.
Preliminary objection upheld.