SETTLEMENT OFFICER v. VANDER POORTEN et al

104-NLR-NLR-V-43-SETTLEMENT-OFFICER-v.-VANDER-POORTEN-et-al.pdf


436
Settlement Officer v. Vender Poorten.
.1942Present: Howard C.J. and de Kretser J.
SETTLEMENT OFFICER v. VANDER POORTEN et al.
220—D. C. (lnty) Ratnapura, 6,940.
• Privy Council—Application for conditional leave—Final Order—Order madeby the District Court on the exercise of special jurisdiction—No appealto Supreme Court—Order not appealable to Privy Council—The Appeals(Privy Council) Ordinance (Cap. 85), s. 3.
No appeal lies to the Privy Council from an order made by the SupremeCourt dismissing an appeal from the District Court from an order madeby the latter in the exercise of a special jurisdiction vested in it under theWaste Lands Ordinance.
A final order means an order which finally disposes of the rights ofparties.
Palaniappa Ch-ettiar et aV v. The Mercantile Bank of India et al(43 N. L. R. 352) referred to.
T
HIS was an application for conditional leave to appeal to the PrivyCouncil.
H. V. Pereira, K.C. (with him E. G. Wickremanayake) f for the petitioner.-H. H. Basnaydke, C.C., for the Settlement Officer (respondent).
Cur. adv. vult.
HOWARD C.J.—Settlement Officer i>. Vander Poorten.437
July 14, 1942. Howard C.J.—
This is an application for conditional leave to appeal to the PrivyCouncil under Rule 1 (a) contained in the Schedule to The Appeals(Privy Council) Ordinance (Cap. 85). The application is opposed byCounsel for the respondent on the following grounds : —
(a) The order from which leave to appeal is prayed is not a final judg-ment of the Court;
(o) The order from which leave to appeal is prayed was not made ina civil suit or action in the Supreme Court within the meaningof these words in section 3 of Cap. 85 ;
(c) As the Supreme Court held that there was no appeal from the orderof the District Judge, there was no suit or action in the SupremeCourt and hence there could be no appeal to the Privy Council.
With regard to (a), various cases have been cited by Counsel for theapplicant including Palaniappa Chettiar and Two Others v. MercantileBank of India and Others'. In my judgment in that case, I cited thefollowing passage from the judgment of Fry L.J., in Salaman v.Warner ’: —
“I think the true definition is this. I conceive that an order is* final ’ only where it is made upon an application or other proceedingwhich must, whether such application or other proceedings fail orsucceed, determine the action. Conversely, I think that an order is‘ interlocutory ’ where it cannot be. affirmed that in either event theaction will be determined.”
In citing this definition I was misled by the following passage from thejudgment of Viscount Cave in Ramchand Manjimal and Others v. Goverd-hands Vishandas Ratnachand and Others *: —
“The question as to what is a final order was considered by theCourt of Appeal in the case of Salaman v. Warner and that decision wasfollowed by the same Court in the case of Bozson v. Altrincham UrbanDistrict Council. ”
Reference to the case of Bozson v. Altrincham Urban District Council 'shows that Salaman v. Warner (supra) was not followed, but an earlier caseShubrook v. Tufnellz, which was in conflict with the decision in Salaman v.Warner. The principle laid down in Shubrook v. Tufnell (supra) was that,if the judgment entered put an end to the action, the order was final.
The test of finality was further considered by^the Privy Council in thelatter case of Abdul Rahman v. Cassim and Sons ’' where the earlier casewas cited. It was held that the test of finality is whether the order“ finally disposes of the rights of the parties ”. Where the order does notfinally dispose of those rights, but leaves them “ to be determined by theCourts in the ordinary way ” the order is not final. Having regard to thedecisions in Bozson v. Altrincham Urban District Council (supra) and AbdulRahman v. Cassim & Sons (supra) the passage cited by me in PalaniappaChettiar v.Mercantile of Bank India (supra) from the judgmentofFry L. J.inSalaman v.Warner (supra) cannot be regarded as the law. The test offinality
1 43 24. L. R. 352.= .4.1. R. 1920, P. C. 86.3 (1882) 9 Q. B. D. 621.
* (1891) 1 Q. B. 734.1 (1903) 1 K. B. 547.* AJJt.1933 P. C. 58.
438HOWARD C.J.—Settlement Officer v. Vander Poorten.
is that formulated in Shubrook v. Tufnell (supra). The rights of the partiesin the present case were in my opinion finally disposed of by the order madeby the Supreme Court. Hence is was a final order.
The question as to whether the order was made in a “civil sui: oraction in the Supreme Court ” does not lend itself to such easy solution.It has been contended by Mr. Basnayake for the respondent that :heDistrict Court in this case was not exercising the jurisdiction conferred onit by the Courts Ordinance, but was sitting as a special tribunal.The Courts Ordinance provides for an appeal to the Supreme Court onlyin cases where the District Court is exercising the jurisdiction conferredon it by the Courts Ordinance. No appeal to the Supreme Court wasprovided by the Waste Lands Ordinance or the Land Settlement Ordinance.In these circumstances there was no “ civil action or suit in theSupreme Court”. In support of this contention Mr. Basnayake citedvarious decisions of this Court. In Soertsz v. Colombo Municipal Council ’it was held that there is no right of appeal to the Privy Council from ajudgment of the Supreme Court on a case stated under section 92 of theHousing and Town Improvement Ordinance, No. 19 of 1915. In comingto this decision a bench, constituted by Fisher C.J. and Drieberg J., heldthat in dealing with the matter under consideration the SupremeCourt was not acting in exercise of the appellate jurisdiction vested in itby the Courts Ordinance nor was the District Court acting in exercise ofany jurisdiction vested in- it by that Ordinance. The Supreme Courthad authority to deal with the matter under section 92 of the Housingand Town Improvement Ordinance. This Ordinance, however, wassilent with regard to applications for leave to appeal from decisions underthat section and hence finality was imposed of them. A right of appeal,if not expressly given, could not be inferred. Moreover, so far as appealsfrom District Courts to the Supreme Court are concerned, the appellatejurisdiction of the Supreme Court and the powers of the Court of Appealrelate solely to the exercise by District Courts of the jurisdiction conferredupon them by the Courts Ordinance. This case was followed in R. M.A. R. A. R. R. M. v. The Comrpissioner of Income Tax ~ where it was heldthat there is no right of appeal to the Privy Council from a judgmentof the Supreme Court on a case stated under section 74 of the Income TaxOrdinance.
■ The applicability of these two cases involves a consideration of thejurisdiction that was being exercised in this matter both by the SupremeCourt and the District Court. Proceedings in respect of the premiseswere originally commenced under the Waste Lands Ordinance, No. 1 of1897, by settlement notice being published in the Government Gazette onSeptember 21, 1928. During the course of the proceedings the WasteLands Ordinance was repealed by the Land Settlement Ordinance, 1931(now Cap. 319).. The proceedings were continued under the WasteLands Ordinance and find order dated March 29, 1940, was made underthat Ordinance as amplified by sections 3 (3) and 32 of the Land Settle-ment Ordinance. No claim in pursuance of the notice of September 21,1928, had been made by the applicant or by A. J. Vander Poortenwithin the time prescribed. Thereafter the applicants, purporting to act1 31 -V. L. R. 612 57 -V. L. Ji. 447
Govt. Soap Factory, Bangalore v. Comnr., Income Tax439
undvr section 24 of the Land Settlement Ordinance, presented a petition tothe District Judge claiming the premises. This petition was dismissed withcosts. The applicants subsequently appealed to the Supreme Court againstthe decision of the District Judge and on the respondent taking a preliminaryobjection that no appeal lay, the objection was upheld and the appealdismissed. The applicants now desire to appeal to the judicial Com-mittee of the Privy Council against the dismissal of their appeal by theSupreme Court.
In the Supreme Court, Counsel for the applicants conceded that noappeal lay under section 24 of the Land Settlement Ordinance, butcontended that the petition constituted a good and sufficient claim undersection 20 of the Waste Lands Ordinance. The Court held, however,that section 20 did not confer a right of appeal from an order madethereunder and the preliminary objection must prevail. In view of thecircumstances in which the claim of the applicants had arisen, can it besaid that the latter were parties to a civil suit or action in the SupremeCourt ? Inasmuch as the District Court was not exercising any jurisdic-tion conferred by the Courts Ordinance, the appeal to the SupremeCourt was not made in pursuance of any right of appeal given by theCourts Ordinance. It was, however, contended that there was an appealunder section 20 of the Waste Lands Ordinance. This contention wasrejected- If the contention, however, had been upheld and the SupremeCourt had proceeded to hear the appeal on its merits and dismissed itthere would, having regard to the decision in Soertsz v. Colombo Muni-cipal Council {supra), have been no right of appeal to the Privy Council,in view of the fact that no specific right of appeal to such authority isgiven by the Waste Lands Ordinance. In my opinion, the applicantsare not in any better position by reason of the fact that the appeal wasdismissed by reason of a preliminary objection which was upheld withregard to the jurisdiction of the Supreme Court.
For the reasons I have given, the application fails and must bedismissed with costs.
be Kretser J.^-I agree.
Application refused.