020-NLR-NLR-V-74-MALIBAN-BISCUIT-MANUFACTORIES-LTD.-Petitioner-and-R.-SUBRAMANIAM-et-al.-Respon.pdf
76Maliban Biscuits Manufactories Ltd. v. Subramaniam –
Present: Samerawickrame, J., and Pandita Gunawardene, J.
MALIBAN BISCUIT MANUFACTORIES LTD., Petitioner,and R. SUBRA^IANTAM el al., RespondentsS. C. 207J6S—Application for Conditional Leave toappeal to Her Majesty the Queen-in-Council inS. C. Application No. dOSjG7
Privy Council—Certiorari application—Order of Supreme Court ref using it—Appealdoes not lie therefrom to Privy Council—“ Civil suit or action ”—-Civil ProcedureCode, b.'C—Appeals {Privy Council) Ordinance {Cap. 100) , a. 3.
An application to tho Supremo Court for a writ of Certiorari is not a civil suitor action. Accordingly, tho Supremo Court will not grant lcavo to appealto Her Majcsty-in-Council from an ordor refusing an application for Writs ofCertiorari and Prohibition.
Colombo Apothecaries Co., Ltd. v. Wijesuriya (71 If. L. R. 25S) not followed.
77
SAMEK A WICKR AML*I, J.—-faliban Biscuit .1lanufarloric-s fAd. v.
Subraman tarn
.APPLICATION for conditional leave to appeal to the Privy Council.
Jlanyanalhan, Q.C., with S. J. Kudinjamcr, Q.C., S. .S'. Bacnayake,II. A. Abeyuardene and K. D. P. Yickramnsiiujke, for the petitioner.
iV. Satyendra, for the 2nd respondent.
Cur. aeh>. wit.
December 19, 1969. Samerawjckrame, J.—
The petitioner applies for leave to appeal to Her Majesty-in-Councilfrom an order of this Court refusing an application for writs of Certiorariand Prohibition. The Minister of Labour had referred certain disputesbetween employees of the petitioner represented by the 2nd respondentand the petitioner-company to the 1st respondent uho is President of aLabour Tribunal for settlement by arbitration. At the :nquiry the 1strespondent took up for adjudication as preliminary matter objections bythe petitioner that the order of the Minister referring the dispute wasnot valid and that (he Tribunal had no jurisdiction to inquire into thedispute. The 1st respondent over-ruled the objections and the petitionermade an application to this Court for a writ of certiorari to quash theorder of the 1st. respondent and a writ of prohibition against the 1strespondent prohibiting him from having any further inquiry in thematter.
Learned counsel for the 2nd respondent submitted that the order ofthis Court dismissing the application of (ho petitioner vas net one madein a civil suit or action and relied on the decision of the Divisional Benchin SilvcrUne. Bus Co. Ltd. 'v. Kandy Omnibus Co., Lid.1. Learnedcounsel for the petitioner submitted that that dee's'on had :n effect,though not expressly, been over ruled by the Privy Council hi Ter.ncLoonv. Dutaisamy -.
In the SilvcrUne Bus Co. case, Basnayakc C.J. considered the na'ureand scope of an application for a writ and said, “ The dicta I have citedgo to show that proceedings in certiorari do not fall within the categoryof proceedings knou n as suits or actions. In certiorari the Court exercisesits supervisory functions in order to determine whether the inferiortribunal has exceeded its jurisdiction or committed an error of lawapparent on the face of the proceedings, and is not called upon topronounce judgment on the merits of the dispute between the parliesbefore the inferior tribunal.”
1(J956) .5S N. L. It. 193.
l*»—K 3231 (4/T1)
1{195$) 59 N. L. 11. 43J.
*78
SAitERAWICKKA^LE, J.—Maliban Biscuit Ufanufactones Lid. v.
Subratnaniam
Later in his judgment Basnayake, C.J., referred to In re Goonesingka 1,in which Moseley J. held that an application for a writ of certiorari fellwithin the definition of action in section 6 of the Civil Procedure Codewhich reads :—
" Every application to a court for relief or remedy obtainable throughthe exercise of the court’s power or authority, or otherwise to inviteits interference, constitutes an action
With reference to Moseley J.’s decision Basnayake C.J. said, : Withgreat respect I find myself unable to agree with the conclus on of thelearned Judge. A writ of certiorari is not a means of obtaining anyrelief or remedy through the Court’s power or authority. It is a purelysupervisory function of the Court, while section G of the Civil ProcedureCode contemplates an entirely different function. In my view it wouldbe wrong to read section G by' itself without reference to the other provi-sions of the Civil Procedure Code. To my mind section 6 when read withthe other sections of the Civil Procedure Code leaves no room for the viewthat a writ of certiorari falls within the definition of action in theCode.”
Basnayake C.J., then considered the meaning of the expression “ Civil.suit or Action ” in section 52 of the Charter of 1S33 and Section 3 of theAppeals (Privy Council) Ordinance. Having referred to certain decisionsof the Privy Council he said, “ The above decisions of the Privy Councilconfirm me in the opinion I have formed that the words ‘ civil suit oraction ’ in section 3 of the Ordinance should be construed in their ordinarysense of a proceeding in which one party' sues for or claims somethingfrom another in regular civil proceedings and that an application for awrit of certiorari does not fall within the ambit of those words in thecontext in which they occur.”
It would appear that Basnayake C.J. held that an application for awrit of certiorari did not fall within the ambit of ’* civil suit or action ”on the following grounds :—
(а)Procccd ngs for ccrt orari are not suits or actions as in them the
Court exercises its supervisory' functions and is not called uponto pronounce j'udgmcnts on the merits of the dispute betweenthe parties before the inferior tribunal.
(б)such an application does not fall within the definition of action in
section 6 of the Civil Procedure Code,
(c) a " civil suit or action ” must be construed to be a proceeding inwhich one party sues for or obtains sometning from another inregular civil proceedings and an application for certioraritherefore docs not fall within that expression.
1(101-2) 14 N. L. It. 7-5.
79
SAMERAN ICKRAME, J.—Malibnn Biscuil yinnujactories Ltd. v.
Subramaniam
In Tennekoon v. Buraisamy (supra) the view ex pressed by BasnayakcC.J., in regard to tlie meaning to be given to tlie expression “ civil suit oraction ” has been expressly disapproved and accordingly the last groundgiven by him for regarding an application for certiorari as not bcing'acivil suit or action must be regarded as over-ruled. The Privy Councilexpressly refrained from otherwise dealing with the decision in theSilverline Bus Co. case (supra). It. said, “After the application forleave to appeal to the Privy Council had been granted in the presentcase a bench of five judges (one of whom dissented) in the case of SilverlineBus Co., Lid. v. Kandy Omnibus Co., Ltd., after a very full and carefulreview of two conflicting lines of authority, decided that an applicationto the Supreme Court for a writ of certiorari was not a ‘ civil suit or action ’within the meaning of section 3 of the Appeals Ordinance. Counsel forthe Commissioner in the present case did not contend that the decisionin the Silverline case was wrong : the point actually decided is not beforetheir Lordships, and they have heard no argument upon it. It follows,however, from the views which they have already expressed that theycannot accept the view of Basnayakc, C.J., that the words ‘ civil suit ofaction ’ in section 3 of the Appeals Ordinance should be limited to ‘ aproceeding in winch one party sues for or claims something from anotherin regular civil proceedings
Earlier in the judgment of the Privy Council the definition of action insection 6 of the Civil Procedure Code was set out and it was stated,This is what their Lordships think is the meaning of ‘ action ’ in theCharter and in the Appeals Ordinance though, as will have been seen,they do not found their decision on this section.” The judgment did notconsider whether an application for a writ did or did not fall withinthe definition for the Board had not before it an appeal from an orderon such an application. Nor did the Privy Council deal withBasnayakc C.J.’s view that such an application did not fall within thedefinition.
It would thus appear that though one ground given in the judgment inthe Stiverline Bus Co. case (supra) must be regarded as over-ruled, theother two grounds for the finding that an application for certiorari isnot a civil suit or action remain untouched by the Privy Council decision.The Divisional Bench decision was made by a Bench of five judges on areference under section 31 of the Courts Ordinance and must be conformedto by tliis Court constituted as it is by’ two judges. I am therefore of theview that we are bound by that decision and that it is not open to us totake any’ other view than that an application for writs of certiorari andprohibition is not a civil suit or action.
In Colombo Apothecaries Co., Ltd. v. E. A. Wijesooriya el al.1Tcnnekoon, J., took the view that in Tennekoon v. Duraisamy (supra)the Privy Council lias expressly over-ruled the ratio decidendi in the
1 IJ9GS) 71 -V. /,. H. 25S.
80
Wickremasinghe v. Dcvasagayam
Silverline Bus Co. case. With respect, I am unable to agree for thereason, as set out above, that some grounds of the decision in the lattercase remain untouched. In the case decided by Temrekoon, J., leavewas granted also on the alternative ground that it was a matter of publicimportance.
Learned counsel for the 2nd respondent also contended that the matterin dispute on the appeal did not amount to rupees five thousand andthat the appeal did not involve any property claim or question of thatvalue. It is unnecessary to consider that contention. I
I hold accordingly that the order sought to be appealed from is not onemade in a civil suit or action and that the petitioner is not entitled forleave to appeal. The application is therefore dismissed with costs.
Pa n d it a – G u n a v ar d e n e , J.—I agree.
Application dismissed.