062-NLR-NLR-V-51-NAGALINGAM-Petitioner-and-THANABALASINGHAM-et-al-Respondents.pdf
Nagalingam v. Thanabalasingham
[Is the Privy Council]
1949
NAGALINOAM, Petitioner, and THANABALASINGHAM et al„,Respondents
S. C. 1-2—D. C. Point Pedro, 2198
Privy Council—Application for conditional leave to appeal—Refusal bySupreme Court—Application for special leave to appeal.
Application to the Privy Council for special leave to appeal froma judgment of the Supreme Court which is reported in 60 N. L. R. 97.
Stephen Chapman with Kamala Tyabji for the petitioner.
No appearance for the respondents.
In Nagalingam v. Thanabalasingham et al. (1919) 60 N. L. R. 396,application was made for conditional leave to appeal to the Privy Councilfrom a judgment of the Supreme Court dated October 13, 1948. Noticeof tho application served on the respondents had wrongly describedthe judgment in respect of which the application was to bo made as beingdated October 11, whereas in fact there was no judgment of that date,the correct date being October 13. The Supreme Court dismissed theapplication mainly on this ground, holding that the requirements ofthe ruloe sot out in the Schedule to the Appeals (Privy Council) Ordinanceshould be strictly complied with. The petitioner, thereupon, appliedto His Majesty in Council for special loave to appeal from the judgment
1 {1933) 35 New Law Reports 352.
258
Xagaiitu/am < Tiiuutl.nl-.-xitiyham
of the Supreme Court dated October 13, 1948. The following was theorder of His Majesty in Council dated May 31, 1949, granting specialleave to appeal * :—
Whereas there was this day read at the Board a Report from theJudicial Committee of the Privy Council dated the 9th day of May, 1949,.in the words following, vi2. :—
“ Whereas by virtue of His late Majesty King Edward the Seventh’sOrder in Council of the 18th day of October 1999 there was referredunto this Committee a humble petition of A. Nagalingam of Polik&ndy,.Valvettithurai, in the matter of an appeal from the Supreme Courtof Ceylon between the petitioner (plaintiff) and (1) ArumugainThanabalasingham (2) Kandavanam Vadivelu (3) KandavanamChclliah (4) Kandavanam Kandasamy, all of Polikandy, Valvettithurai(defendants) respondents setting forth (amongst other matters):that the petitioner was on the 3rd February 1949 refused conditionalleave to appeal to Your Majesty in Council from a judgment of theSupreme Court in proceedings in which the subject matter exceededRs. 5,000 so as to entitle the petitioner subject to the rules containedin the Schedule to the Appeals (Privy Council) Ordinance (Chapter85 in the Revised Legislative Enactments of Ceylon) to an appeal osof right to Your Majesty in Council: that the grounds of the SupremeCourt’s refusal of conditional leave were that in technical respects thepetitioner had failed to comply with the requirement of the said rulesas to giving notice of an intended application for leave to appeal:that the original proceedings were instituted in the District Court ofPoint Pedro by the petitioner as plaintiff against the first respondentwho is his younger brother claiming the partition of certain landknown as Mungkodai and Mavat-tai: that by the plaint the petitionerallotted a half share in the land to the said respondent who acceptedthis as his correct share and did not file an answer : that he was not-represeuted and did not take any part in any of the subsequentproceedings: that the second, third and fourth respondentsintervened in the proceedings to claim that full title to the land inquestion was vested in them by virtue of a deed of gift made in favourof their fathor: that the Court of the District Judge awarded themajor portion of the land in question to the petitioner and the firstrespondent: that from this decision the petitioner and also thesecond, third and fourth respondents appealed to the Supreme Court:that the appeals were consolidated and by judgment dated 13th October1948 the appeal of the second, third and fourth respondents wasallowed with costs and the petitioner’s appeal was dismissed withcosts: that the petitioner duly applied to the Supreme Court forconditional leave to appeal and his application was opposed by thesecond, third and fourth respondents whose main objection was thatdue notice of the intended application had not boon given withinthe 14 days laid down by rule 2 of the Schcdulo to the Appeals (PrivyCouncil) Ordinance: that this objection was upheld by the Supreme
* It is not tho practice of the Lords of tho Judicial Committee of the PrivyCouncil to give reasons either for granting or refusing special loave to appeal, and,in accordance with that practice, no reasons were given in this case.—Ed.
Samarakoon v. Tikiri Banda
259
Court in a judgment dated 3rd February 1949 : And humbly prayingYour Majesty in Council to grant the petitioner special leave to appealfrom the judgment of the Supremo Court dated 13th October 1948and for such further and other relief as to Your Majesty in Councilmay seem just:
*' The Lords of the Committee in obedience to His late Majesty’ssaid Order in Council have taken the humble potition into considerationand having heard Counsel in support thereof (no one appearing inopposition thereto) Their Lordships do this day agree humbly to reportto Your Majesty as their opinion that leave ought to be granted to thepetitioner to enter and prosecute his appeal against the judgmentof the Supreme Court of Ceylon dated the 13th day of October 1948upon depositing in the Registry of the Privy Council the sum of £400as security for costs :
“ And Their Lordships do further report to Your Majesty that theproper officer of the said Supreme Court ought to be directed to transmitto the Registrar of the Privy Council without delay an authenticatedcopy under seal of the record proper to be laid before Your Majestyon the hearing of the appeal upon payment by the petitioner of theusual fees for the same.”
HIS MAJESTY having taken the said report into consideration waspleased by and w ith the advice of His Privy Council to approve thereofand to order as it is hereby ordered that the same be punctually observed,obeyed and carried into execution.
Whereof the Governor-General or Officer administering the Govern-ment of Ceylon for the time being and all other persons whom it mayconcern are to take notice and govern themselves accordingly.
Application allowed.