046-NLR-NLR-V-27-SILVA-v.-SILVA-AND-KING.pdf
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Present: Dalton J. and Akbar A.J.
SILVA v. SILVA and KING.
56—D. C. Colombo, 10,899.
Privy Council—Application for conditional leave—Several respondents—Separate security for costs—Ordinance No. 81 of 1909, Rule 3 (a).
In an application for conditional leave to appeal to the PrivyCouncil the Supreme Court has no power to order that the costs ofseveral respondents should be separately secured.
A
PPLICATION for conditional leave to appeal to the PrivyCouncil from a judgment of the Supreme Court.
J. S. Jayewardcne (with him Arulanandan), for applicant.
Croos Da Brera, for first defendant, respondent.
Choksy, for second defendant, respondent.
November 30, 1925. Dalton J.—
This is an application in Supreme Court case No. 56,D.C., Colombo,No. 10,899 for conditional leave to appeal to the Privy Councilfrom a judgment given by this Court on October 28, 1925. Thejudgment appealed from is a final judgment of the Court withinthe terms of rule 1 (a) of Ordinance No. 31 of 1909, and it is also inrespect of a matter amounting to, or of the value of, Rs. 5,000 andupwards. The plaintiff, who is the appellant, is consequentlyentitled as of right to appeal. It has been urged however, by therespondents, of whom there.are two, the first defendant and theco-defendant in the original action, that they are entitled tosecurity for costs under the provisions of rule 3 (a) of OrdinanceNo. 31 of 1909, each in a sum of Rs. 3,000 for the due prosecutionof the appeal and for the payment of all such costs that may becomepayable to the respondents in the event of the appellant not obtainingan order for final leave to appeal or of the appeal being dismissedor, of the Privy Council ordering the appellant to pay the respon-dents3 costs of appeal. The question to be decided is whether ornot under that rule this Court can order security to be given bythe appellant for each respondent in a sum not exceeding Rs. 3,000.The point has been decided before in this Court, and we have beenreferred to the case of Costa v. Silva1 which came before WoodRenton C.J. and Shaw J. In that case an earlier decision
1 {1915) 18 N. L. R. 281.
1926.
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1926^
Dalton J.
Silva v. Silvaand King
of Lascelles C.J. was also referred to. That later case doesnot appear to have been reported, but from the extract whichis cited by Wood Benton C.J. in the 18 N. L. R. case it wouldappear that Lascelles C.J. refused to accede to the applicationof the respondents that they should have separate security, on theground that in that particular case there was no difference betweenthe cases of the respondents ; in other words that in substance theircases were one and the same. In Costa v. Silva (supra) the decisionappears to go beyond that. It is true that Wood Renton C.J.does say in the course of his judgment that the respondents therewere all in the same interest, but he deals specifically with thequestion as to whether the language of the rule 3 (a) allowed thisCourt to order separate security when there was more than onerespondent. In his view, and Mr. Justice Shaw agrees with him,the language of the rule does not support the view that the costs ofseveral respondents should be separately secured. He points out acase in which a hardship might arise to appellants should such aninterpretation be placed upon the rule. He specifically refers to apartition case. It is in my opinion possible also to refer to a case ofhardship which might arise on the opposite construction of the rule,but, as I said in the course of the argument, we have to interpretthe rule as it stands, and we cannot give effect to hardships whichmight arise should we come to the conclusion that the rule must beinterpreted in one particular way. In spite of hardships whichmight arise, it seems to me that the language of the rule is definite.Further, neither counsel has been able to refer to any case whatso-ever in which any other view of the language set out in the rulehas been accepted. ' They are unable to refer to any case atall in which separate security has been given when there aremore than one respondent. We have been referred to the provisionsof section 756 of the Civil Procedure Code which deals with securityfor costs of the appeal from lower courts to this Court, but in thatsection there is no limit up to which security may be given, and I donot think any argument based upon the provisions of that sectionis of any assistance in interpreting the provisions of rule 3 of theSchedule of the Ordinance dealing with appeals to His Majesty inCouncil.
I would, therefore, follow the decision of Costa v. Silva (supra),with which I may say, I respectfully agree, with regard to thelanguage of the rule, and I wouid, therefore, order that securitybe given by the appellant in a sum not exceeding Rs. 3,000 in favourof the respondents.
The appellant is, in my opinion, entitled to the costs of theapplication.
Akbak A.J.—I agree.
Application allowed.