BASNAYAKJE, C-J-—Samichchiappu v. Baronchihamy
1960Present:Basnayake, C.J., and Sansoni, J.
SAMICHCHIAPPU, Petitioner, and BARONCHIHAMY and others,
S. C. 100—Application for Final Leave to Appeal to the Privy Council
in S. C- 154JD. C. Tangalla, 6205
Privy Council—-Appeal to Supreme Court dismissed for non-appearance—Dismissaof application for reinstatement—Application by appellant for leave to appealto Privey Council—Computation of time limit—“ Pinal judgment ”—CivilProcedure Code, s. 769 (2)—Appeals (Privy Council) Ordinance, ScheduleBuies 1 and 2.
Where the appellant applies for leave to appeal to the Privy Council in a casewhere the Supreme Court has refused an application made under section769 (2) of the Civil Procedure Code to reinstate an appeal which was dismissedfor non-appearance, the final judgment, for the purpose of rule 1 (a) of thorules in the Schedule to the Appeals (Privy Council) Ordinance, is the judgmentby which the action between the parties was decided in appeal and not thejudgment refusing the application for reinstatement of the appeal. Accordingly,the petition for leave to appeal to the Privy Council must be filed withinthirty days from the date of the judgment of the Court dismissing the appeal.
Application for final leave to appeal to the Privy Council.
N.E. Weerasooria, Q.C., with W. Wimalachandra, for Defendant-Appellant-Petitioner.
H. W. Jayewardene, Q.C., with D. R. P. Goonetillehe, for 1st, 2nd and3rd Plain tiffs-Respondents-Respondents.
May 12, 1960. Basnayake, C.J.—
This is an application by the defendant-appellant for final leave toappeal to the Privy Council. The plaintiffs-respondents sued thedefendant-appellant to recover the value of the coconuts gathered by thedefendant-appellant from a plantation of 634 coconut trees standingon a land called Tennapita Serugahahena alias Karuwalahenayayawhich was the subject-matter of the Partition Case No. 5552 of the
BASNAYAKE, C.J.—Saviichchictppu v. Baronchihamy
District Court of Tangalla. In that action the plaintiffs prayed judg-ment in a sum of Rs. 3,900 against the defendant, and for furtherdamages at the rate of Rs. 600 per crop from 21 st September 1951 tillpossession of the land was given. After trial the learned District Judgedelivered judgment declaring that the defendant was liable to pay Rs. 300per crop from July 1949 in respect of the disputed coconut trees, and thatthe plaintiffs were entitled to be restored to possession and to recovercosts of the action.
The defendant appealed against the judgment and the appeal wasdismissed with costs on the 22nd October 1959. Neither his counselnor the defendant appeared at the hearing of the appeal. Thereafteran. application was made under section 769 (2) of the Civil ProcedureCode praying that the appeal be reinstated. That application washeard after notice to the plaintiffs and it was dismissed on the 16thDecember 1959.
Objection to the grant of final leave is taken on the followinggrounds :—
** (a) That the matter in dispute on the appeal does not amountto or is of the value of Rs. 5,000 or upwards ; and
(6) That the petition for leave to appeal was filed 30 days afterthe date of the judgment of the Court dismissing the appeal. ”
Learned counsel for the petitioner submits that the final judgmentfor the purpose of the application to the Court for the purpose ofrule 1 (a) of the rules in the Schedule to the Appeals (Privy Council)Ordinance is the judgment dismissing the application for the reinstate-ment of the appeal and not the judgment dismissing the appeal, itself.He further contends that as the final judgment is the judgment dis-missing the application for reinstatement of the appeal, the applicationfor final leave to appeal to the Privy Council is within time. We areunable to agree that the final judgment of the Court referred to inrule 1 (a) is the judgment dismissing the application for reinstatementof the appeal. The final judgment of the Court contemplated inmile 1 is the judgment by which the action between the parties wasdecided in appeal.
The application for final leave to appeal to the Privy Council is refused.
The respondents are entitled to their costs.
Sajstsoni, J.—I agree.
SAMICHCHIAPPU, Petitioner, and BARONCHIHAMY and others, Respondent