[Full Bench.]m4
Present: Wood Kenton C.J., Ennis J., and De Sampayo A.J.
197—D. C. Puttalam. 9,356.
Application for leave to appeal to the Privy Council—Action for injunctionto restrain defendants from carrying a pagoda in procession—Application refused—Valve of action.
The plaintiffs as members of a Muhammadan mosque sued thedefendants, the trustees of the mosque, for an injunction restrainingthem from carrying a pagoda in procession from the mosque
premises. Eo damages were claimed by the plaintiffs inthe
action, but (be plaint was stamped on the basis that the claimv*3s above Rs. 5.000 in value.
The Supreme Court refused an application for leave to appealtc the Privy Council.
Wood Renton C.J.—I do not think that the rule laid down iuDelmegc r. Delmegc 1 has any application to such cases as the present,ir. which no loss of profits or emoluments is alleged, no damagesare claimed, and the alleged right asserted in the action is one onwhich no pecuniary value can be placed.
HIS was an application by the plaintiffs for leave to appeal tothe Privy Council from the judgment of the Supreme
Court (reported at page 111).
Bavja, K.G., for the applicants (plaintiffs).—-The parties to .thecase treated the case as one which involved a claim of over Rs. 5,000.
The fact that the claim was not expressly valued in the plaint doesnot matter. In the case reported in Austin's Reports 8 (Morgan'sDigest 57) the Supreme Court directed an inquiry to be made as to thevalue of the subject-matter of the action. Counsel^cited 91 L. T.
233, {1904) A. O. 776, 1 N. L. R. 271, 1 S. C. Ii. 1, 4 Moore's P. G.
' (1805-96) 1 N. L. R, 271.,
PiieJteTamby v.Ca*Hm *Marikar
( 118 )
(N. S.) 374, 67 L. T. 317, U A. C. 36. Persons other than theparties to this ease are, interested in the result of this case. AH,Muhammadans are interested in seeing that the defendants actaccording to the rules. This is pre-eminently a case in whichspecial leave should be granted.
F. M. de Saram (with him Samarawickrame), for respondents.—[Their Lordships wished to hear respondents only on the questionwhether special leave should be granted.] There is no doubt ordispute as to the question of law in this case. The only question iswhether sufficient cruse has been shown to justify an interferenceby the Court. The appeal is mainly one based on facts. Counselreferred to 3 A. C. 159, 8 A. C. 574.
Car. adv. vuLi.
October 29, 1914. Wood Benton C.J.—
This is an application by the plaintiffs in the action for leave toappeal to the Privy Council either as of right under rule 1 (a), orat the* discretion of this Court under rule 1 (b),o of the rulesscheduled to the Appeals (Privy Council) Ordinance, 1909 (No. 31of 1909). The plaintiffs as members of a Muhammadan mosque atPuttalam sued the defendants, the trustees of.the mosque, for aninjunction restraining them from carrying a pagoda in processionfrom the mosque premises. No damages were claimed by theplaintiffs in the action, but the plaint was stamped on the basis thatthe claim was above Bs. 5,000 in value. The plaintiff's counselcontended that, although no value was placed on the subject-matterof the action in the plaint itself, and consequently such cases asDelmege v. Delmege1 are not directly applicable, the principle ofthese decisions should be applied by way of analogy, and the Courtshould be guided as to the value of .the action by the scale underwhich the process in it had been stamped. I do not think that therule laid down in Delmege u. Delmege1 has any application to suchcases as the present, in which no loss of profits or emoluments isalleged, no damages are. claimed, and the alleged light asserted inthe action is one on which no pecuniary value can be placed. SeeD'Orliac t D'Orliac * The appellants' claim to appeal to thePrivy Council as of right must fail.
Rule 1 (ft) of the rules scheduled .to the Appeals (Privy Council)Ordinance, 1909 (No. 31 of 1909), empowers the Supreme Court togive special leave to appeal in any ease “ if, in the opinion of the Court,the question involved in the appeal is one which, by reason of itsgreat general or public importance or otherwise, ought to be submittedto His Majesty in Council for decision." It was conceded in theargument at the Bar—and I think that the point of view embodiedin the concession is correct—that the Supreme Court in exercising itspowers under this rule should be guided, mutatis mutandis, by the
i (1895-96) 1 N. h. R. 271.2 (18G6-B7) 4 Moore'* P. C. 374 (new series.)
( 119 )
principles on which the Privy Council itself acts in dealing with 1014..■applications for special leave to appeal in civil cases. The locus ^Voodclassics on that point is the case of Prince v. Gagnon/ where it was Renton C.J.held that no advice in favour of admitting an appeal by special ^leave will be given save “ when the case is of gravity, involving Tomb), v.matter of public interest or affecting property of considerable Meritoramount, or where the case is otherwise of some public importanceor of a very substantial character.*' The Privy Council also takesaccount, in considering applications for special leave to appeal, ofthe question whether .the judgment sought to be appealed againstdoes or does not appear to be of doubtful soundness. It is obviousthat- this latter test, although we cannot exclude it altogether, isone that we should ourselves apply with caution. But we arerequired by the terms of rule 1 (b) itself, before granting special leaveto appeal in any case, to be satisfied that the issue is one of greatgeneral or public importance. The words 4'or otherwise" in therule must clearly receive an ejusdem generis interpretation. Howeverglad the Judges of this Court might be, and would be, that theirdecision should be submitted to the Privy Council, we are boundto see that special leave to appeal is not granted except in casescoming fairly within the range of the principle above stated. Icannot think that the present case satisfies this test. Had theSupreme Court decided it in a contrary, sense, and held that thecircumstances were such as to justify a departure from the generalrule that secular Courts in this Colony will not interfere with purelyecclesiastical controversies, there might have been some ground forour .sanctioning an appeal as of grace. But the only point involvedin the decision of the Supreme Court is that on the evidence nosuch departure is justifiable. That is no doubt a decision on amatter of interest and of importance to the parties themselves.
But it turns entirely on questions of fact which have been disposedof in the same sense by the learned District Judge and by theSupreme Court.
I would dismiss the application with costs.
Eifirrs J.—I agree.
Db Sampayo, A.J.—I agree.
Application refused.
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1 (1882) 8 Appeal Cases 103