RANJIT v. KUSUMAWATHIE AND OTHERS

035-SLLR-SLLR-1998-V-3-RANJIT-v.-KUSUMAWATHIE-AND-OTHERS.pdf


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RANJIT
v.KUSUMAWATHIE AND OTHERS
SUPREME COURTDHEERARATNE, J.,
WIJETUNGA, J. ANDGUNAWARDANA, J.
S.C. APPEAL NO. 154/97
A. APPEAL NO. 649/86 (F)
C. NEGOMBO NO. 1980 PJUNE 24TH 1998
Appeal – S. 754 of the Civil Procedure Code – Meaning of ‘'judgment“ for purposesof appeal – Partition Law, No. 21 of 1977 – Order made by a District Court onan application made under S. 48 (4) (a) (iv) of the Law – Appeal procedure.
Where the District Court rejected an application made by a defendant in termsof S. 48 (4) (a) (iv) of the Partition Law, No. 21 of 1979.
Held:
The Order of the District Court is not a ■judgment” within the meaning of sections754 (1) and 754 (5) of the Civil Procedure Code for the purpose of an appeal.It is an “order” within the meaning of S. 754 (2) of the Code from which an appealmay be made with the leave of the Court of Appeal first had and obtained.
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Cases referred to:
Subramanium Chatty v. Soysa (1923) 25 NLR 344.
Palaniappa Chetty v. Mercantile Bank of India at. al (1942) 43 NLR 352.
Settlement Officer v. Vander Pooten (1942) 43 NLR 436.
Fernando v. Chittambaram Chettiar (1948) 49 NLR 217.
Usoof v. Madarakaj Chettiar (1957) 58 NLR 436.
Usoof v. The National Bank of India Ltd. (1958) 60 NLR 381.
Arlis Appuhamy et. al. v. Simon (1947) 48 NLR 298.
Marikar v. Dharmapala Unanse (1934) 36 NLR 201.
Rasheed Ali v. Mohamed AH and Others (1981) (1) NLR 262.
Siriwardene v. Air Lanka Ltd. (1984) (1) SLLR 286.
White v. Brunton (1984) 2 All ER 606.
Shubrook v. Tufhell (1882) 9 QBD 621; (1881-8) All ER 180.
Salaman v. Warner and others (1891) 1 QB 734.
Bozson v. Atrincham Urban District Council (1903) 1 KB 547.
Salter Rex & Co. v. Gosh (1971) 2 All ER 865 and 866.
Standard Discount Co. v. La Grange 1877 3 CPD 67.
Hunt v. Allied Bakeries Ltd. 1956 3 Aller 513 (1956) 1WLR 1326.
Anglo Auto Finance (Commercial) Ltd. v. Robert Dick – unreported.
APPEAL from the judgment of the Court of Appeal.
Anil Silva for 4th defendant-appellant.
S. F. A. Cooray with C. Liyanage for plaintiff-respondent.
Cur. adv. vult.
August 20, 1998
DHEERARATNE, J.
In this partition action the original 4th defendant filed his statementof claim on 14.9.1972. On the day of trial namely 27.9.1982, all partiesexcept the plaintiff, were absent. Evidence was led for the plaintiffonly and the judgment and the interlocutory decree were enteredaccordingly. On 4.10.1983, the original 4th defendant applied to thetrial court, in terms of subsection 48 (4) (a) (iv) of the Partition Law,for special leave to establish his right, interest and title to the corpus,seeking to explain his failure to appear at the trial.
The 4th defendant died on 5.11.1983 and on 13.4.1984 and 4Adefendant (the appellant) was substituted in his place. The applicationfor special leave was rejected by the District Court by its order made
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on 6.3.1986. The appellant then preferred an appeal to the Court ofAppeal against that order, in terms of subsection 754 (1) of the CivilProcedure Code, as if that order made by the District Court was a“judgment". The Court of Appeal rejected the appeal on the basis thatwhat was appealed from was an "order" within the meaning of subsection754 (2) of the CPC and that therefore an appeal could lie only withleave of the Court of Appeal first had and obtained. This appeal relatesto that rejection.
The procedural law relating to appeals in partition actions
In terms of section 67 of the Partition Law, No. 21 of 1977, anappeal lies to the Court of Appeal against any judgment, decree, ororder, made or entered in a partition action; and all provisions of theCPC are made applicable to any such appeal as though a judgment,decree, or order, made or entered in any action as defined for thepurposes of the CPC. Thus section 67 of the Partition Law attractsthe provisions of section 754 of the CPC.
Section 754 reads:
Any person who shall be dissatisfied with any judgment, pro-nounced by any original court in any civil action, proceedingor matter to which he is a party may prefer an appeal to theCourt of Appeal against such judgment for any error in fact orin law.
Any person who shall be dissatisfied with any order made byany original court in the course of any civil action, proceedingor matter to which he is, or seeks to be a party, may preferan appeal to the Court of Appeal against such order for thecorrection of any error in fact or law, with the leave of the Courtof Appeal first had and obtained.
(subsections (3) and (4) omitted)
Notwithstanding anything to the contrary in this Ordinance, forthe purposes of this chapter-
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“Judgment" means any judgment or order having the effectof a final judgment made by any civil court; and
"Order" means the final expression of any decision in any civilaction proceeding or matter, which is not a judgment.
For the sake of completeness, though not strictly relevant, I maymention here that since the Partition (Amendment) Act No. 17 of 1997(certified on 12th August, 1997) came into operation, an appeal bya person dissatisfied with an order to enter final decree after summaryinquiry by court (a) confirming with or without modification the schemeof partition; or (£>) ordering the sale of any lot which the commissionerhas reported to court that the extent of which is less than the minimumextent required by written law relating to the subdivision of land fordevelopment purposes; and an appeal by a person dissatisfied by anorder made by court in relation to confirming of a sale after inquiry,have to be filed with leave of the Court of Appeal first had andobtained. See new sections 36A and 45A. However, the provisionsof the former section 67 regarding appeals [now amended to read67 (1)] stand substantially the same, subject to the provisions of newsections 36A and 45A (referred to above), and subsection 67 (2)(requiring court to retain duplicate of plan and report in the event ofan appeal) and subsection 67 (3) (empowering court to make interimorders to prevent waste or damage to the corpus pending appeal).These amendments brought about by the 1997 (Amendment) Act haveno bearing on any order made under subsection 48 (4), except that,an application under subsection 48 (4) (a) has now to be made, onor before the date fixed for consideration of the scheme of partitionunder section 35; or at any time not later than 30 days after the returnof the person responsible for the sale under section 42, is receivedby court.
Learned counsel for the appellant contends that the order madeby the learned trial judge rejecting the 4th defendant's application forspecial leave under subsection 48 (4) (a) is a "judgment" within themeaning of subsection 754 (1) of the CPC, in as much as the 4thdefendant's claim is concerned, that is finally disposed of.
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The test to determine a "final judgment or order" or an "order"within the meaning of subsection 754 (5) of the CPC.
The determination whether an order (if I may use that wordgenerically) in a civil proceeding, is a judgment or an order havingthe effect of a final judgment; or, an order not having the effect ofa final judgment, has not been an easy task for courts. This problemhas cropped up principally in the consideration by courts of four distinctlegislative provisions. The first of those is the schedule to the repealedAppeals (Privy Council) Ordinance No. 31 of 1909, wherein the term“final judgment" appears. See eg the cases of, Subramanium Chettyv. Soysd']; Palaniappa Chetty v. Mercantile Bank of India et. al2)Settlement Officer v. Vander PooterP Fernando v. ChittambaramChettiat Usoof v. Nadarajah ChettiaP and Usoof v. The NationalBank of India Ltd®. The second, is section 36 of the repealed CourtsOrdinance, wherein the term "final judgment or any order having theeffect of a final judgment" in relation to the Court of Requests, appears.See eg. the cases of, Arlis Appuhamy et. al. v. SimorP and Marikarv. Dharmapala Unansd81. The third is Article 128 (1) of the Constitutionwherein the term "final order" appears. See eg the case of RasheedAli v. Mohamed AH and otherd®. The fourth, is section 754 (5) ofthe CPC wherein mutually exclusive terms "judgment" and "order"appear. See eg Siriwardene v. Air Ceylon Ltd]'®. In most of thoseinstances judicial interpretations in the UK, where the terms "finalorder" and "interlocutory order" were considered, had been referredto for guidance.
There have been two virtually alternating tests adopted by differentjudges from time to time in the UK to determine what final ordersand interlocutory orders were. In White v. Bruntod" Sir John DonaldsonMR labelled the two tests as the order approach and the applicationapproach. The order approach was adopted in Shubrook v. TufnelP®,where Jessel, MR and Lindely, LJ. held that an order is final if itfinally determines the matter in litigation. Thus the issue of final andinterlocutory, depended on the nature of the order made.
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The application approach was adopted in Salaman v. Warner &otherst'3), in which the Court of Appeal consisting of Lord Esher, MR,Fry and Lopes, UJ. held that the final order is one made on suchapplication or proceeding that, for whichever side the order was given,it will, if it stands, finally determine the matter in litigation. Thus theissue of final or interlocutory depended on the nature of the applicationor proceedings giving rise to the order and not the order itself.
In Bozson v. Altrincham Urban District Council, the Court ofAppeal consisting of Earl of Halsbury, Lord Alverstone, CJ. and JeuneP. reverted to the order approach. I may mention here that Sharvananda,
J.(as he then was) followed Bozson (supra) in Siriwardene v. AirCeylon (supra). In Salter Rex & Co. v. Gosh<1S) Lord Denning, MRsaid;
"There is a note in the Supreme Court Practice 1970 underRSC Ord 59, R4, from which it appears that different tests havebeen stated from time to time as to what is final and what isinterlocutory. In Standard Discount Co. v. La Grange<16) and Salamanv. Warner (supra) Lord Esher, MR said that the test was the natureof the application to the court and not to the nature of the orderwhich the court eventually made. But in Bozson v. Altrincham UrbanDistrict Council (supra) the court said that the test was the natureof the order as made. Lord Alverstone, CJ. said the test is; at548, 'Does the judgment or order, as made, finally dispose of therights of the parties?1 Lord Alverstone, CJ. was right in logic butLord Esher MR was right in experience. Lord Esher, MR's testhas always been applied in practice. For instance, an appeal froma judgment under RSC Ord 14 (even apart from the new rule)has always been regarded as interlocutory and notice of appealhas to be lodged within 14 days. An appeal from an order strikingout an action as being frivolous or vexatious, or as disclosing noreasonable cause of action, or dismissing it for want of prosecution- every such order is regarded as interlocutory; see Hunt v. AlliedBakeries Ltd.w So I would apply Lord Esher MR'S test to anorder refusing a new trial. I look to the application for a new trialnot to the order made. If the application for a new trial were granted,
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it would clearly be interlocutory. So equally when it is refused, itis interlocutory. It was so held in an unreported case, Anglo-AutoFinance (Commercial) Ltd. v. Robert Dic^ (4th December, 1967),and we should follow it today.
The question of final' and 'interlocutory' is so uncertain that onlything for practitioners to do is to look up the practice books andwhat has been decided on the point. Most orders are now beenthe subject of decision. If a new case should arise, we must dothe best we can with it. There is no other way".
Lord Esher's test and the nature of the application of the 4thdefendant leading to the order appealed from.
A party to a partition action making an application in terms ofsubsection 48 (4) (a) (iv) in order to establish his right, title or interest,has two hurdles to surmount. First he has to satisfy court, in termsof subsection (c) that (i) having filed his statement of claim andregistered his address, he failed to appear at the trial owing toaccident, misfortune or other unavoidable cause, and (ii) that he hada prima facie right, title or interest in the corpus, and (iii) that suchright, title or interest has been extinguished or such party has beenotherwise prejudicially affected by the interlocutory decree. Then onlythe court will grant special leave. After granting special leave, in termsof subsection (d), the court will settle in the form of issues thequestions of fact and law arising from the pleadings relevant to theclaim and then appoint a day for trial and determination of the issues.The second hurdle the party has to surmount is the determinationof those issues by court after trial, in terms of subsection (e).
The order appealed from is an order made against the appellantat the first hurdle. Can one say that the order made on the applicationof the 4th defendant is one such that whichever way the order wasgiven, it would have finally determined the litigation? Far from that,even if the order was given in favour of the appellant, he has to facethe second hurdle, namely the trial to vindicate his claim. In the wordsof Lord Esher in Salaman's case (supra) at 735:
CAEnso Nona v. Somawathie and Others239
"The question must depend on what would be the result of thedecision of the Divisional Court, assuming it to be given in favourof either of the parties. If their decision, whichever way it is given,will if it stands, finally dispose of the matter in dispute, I think forthe purposes of these rules it is final. On the other hand, if theirdecision, if given in one way, will finally dispose of the matter indispute, but if given in the other, will allow the action to go on,then I think it is not final, but interlocutory".
•
For the above reasons I hold that the order appealed from is nota "judgment" within the meaning of subsections 754 (1) and 754 (5)of the CPC. The appeal is dismissed but in all the circumstances wemake no order as to costs.
WIJETUNGA, J. – I agree.
GUNAWARDANA, J. – I agree.
Appeal dismissed.