004-SLLR-SLLR-2006-V-2-SIVAYANAMA-AND-ANOTHER-vs.-PEOPLES-BANK-AND-OTHERS.pdf
CA
Slvayanama and Another vs
People’s Bank and Others
29
SIVAYANAMA AND ANOTHERVSPEOPLE’S BANK AND OTHERSCOURT OF APPEAL.
BALAPATABENDI, J. (P/CA).
IMAM.J.
CA 592/2000(F).
DC MATALE 4349/L.
AUGUST 23,2004.
FEBRUARY 28,2005.
Finance Act, No. 11 of 1963, sections 72 (2), 72 (3) – Property vested in Bank -State Mortgage and Investment Bank, sections 70 (B), (5), (6) – Finality ClauseOuster- Interlocutory order – Final Order – Interpretation Ordinance, section 22- Civil Procedure Code, section 754 (5).
The plaintiff-appellants instituted action praying inter alia for a declarationagainst the 1st defendant Bank, that the property in suit is not liable to beacquired under the provisions of the Finance Act.
The defendant Bank contended that once a property is so vested with theBank the said vesting cannot be called in question in any Court of Law andmoved for a dismissal of the action. This issue was taken as a preliminaryissue and the trial Judge answered the said issue in favour of the DefendantBank and dismissed the action.
The plaintiffs appealed against the said order.
At the hearing of the appeal, the Respondent Bank contended that the orderof the trial Judge was not a final order but only an interlocutory order and hencethe appeal is misconceived in law.
HELD:
(1) Applying the principles laid down in Siriwardane vs. Air Ceylon Ltd, theplaintiff’s appeal is not misconceived in law, the impunged order is afinal order.
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Sri Lanka Law Reports
(2006) 2 Sri LR.
HELD FURTHER:(2) The plaintiff cannot have and maintain this action in the District Court inview of the finality clause read with section 22 of the InterpretationOrdinance. Declaratory relief is available against the Bank where thereis a total lack of jurisdiction only.
APPEAL from the District Court of Matale.
Cases referred to:Ranasinghe vs. Ceylon State Mortgage Bank 1981 1 Sri. L. R. 121(distinguished)
Ranjit vs. Kusumawafhie and Others 1983 Sri L. R. 232
Siriwardane vs. Air Ceylon Ltd. 1984 1 Sri L. R. 286
White vs. Brunton (1984) 2 ALL E. R. 606
A. R. Surendran, PC with Ms. Safana Gul Begum and Nadaraja Kandeepan for1" and 2nd plaintiff-appellants.
Manohara R. de Silva, PC with David Weeraratne for 1*' and 2nd defendants -respondents.
Cur. adv. vult.
July 31,2006.
IMAM, J.The Plaintiffs-Appellants (hereinafter referred to as the (“Appellants”)filed this Appeal in this Court seeking to set aside the judgment of thelearned District Judge of Matale delivered on 20.06.2001 in caseNo. 4349/L and inter alia other reliefs as sought for in the prayer to thePetition.
The facts of the case are briefly as follows: The ‘Appellants’ filed thisaction in the District Court of Matale praying inter alia for a declarationagainst the 1st Defendant Bank that the property in suit is not liable to beacquired under the provisions of the Finance Act No. 11 of 1963 as amended.
CA
Slvayanama and Another vs
People’s Bank and Others (Imam J.)
31
The 1“ and 2nd Defendant-Respondents filed Answer, and took up theposition that-
the said property was vested with the Bank by the order publishedin the Government Gazette bearing No. 44/11 dated 11.7.1979published in terms of section 72 (2) of the Finance Act as amended;
once the property is so vested the 1 st Defendant Bank becomesthe lawful owners of the said property without being subject to anyencumbrances;
in terms of section 72 (3) of the said Act once a property is sovested with the Bank, the said vesting cannot be called in questionin any Court of Law;
accordingly that the Plaintiffs-Respondents have no right to haveand maintain this action in the District Court, Matale and in thecircumstances to dismiss the action filed by the Plaintiffs.
When this case came up for trial on 20.6.2001,07 admissions wererecorded, and the following 03 issues were raised as preliminary issues ofLaw by the Defendants
Whether the property in question is vested with the People's Bankin terms of a decision taken by the People Bank in terms of section70 (B) (5) and (6) of the State Mortgage and Investment Bank asamended.
Whether the said decision taken in terms of the provisions of theState Mortgage and investment Bank Act cannot be called intoquestion in any Court of Law.
If the answers to the aforesaid questions are answered in the“affirmative” whether the Plaintiff can have and maintain this action.
Both parties tendered their written submissions in respect of this matter,and the learned District Judge made order on 20.6.2001 answering thesaid preliminary issues in favour of the 1st Defendant-Respondent and
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dismissed the action with costs. Being aggrieved by the said order thePlaintiffs-Appellants have filed this Appeal.
When the Appeal came up for hearing before this Court on 23.08.2004,Counsel for the Respondent raised a preliminary objection that the orderagainst which this Appeal has been lodged is not a final order, but only aninterlocutory order. He further submitted that thus the Appellants couldnot have lodged this Appeal against the aforesaid order. This Court directedthe parties to tender written submissions on the aforesaid preliminaryobjections. The 1st Defendant Peoples Bank in its answer took up theposition that the decision made by the Bank was final and conclusive, andthat the same could not be challenged in a Court of Law.
It was submitted on behalf of the Plaintiffs-Appellants that the decisionmade by the People’s Bank could be challenged in a Court of law, andcited in support of their position the judgment of the Supreme Court inRanasinghe vs. Ceylon State Mortgage Bank1* where His Lordship NevilleSamarakoon CJ with their Lordships Ismail, J, Sharvananda, J andWanasundara, J agreeing held that a decision made by the People's Bankunder Act No. 33 of 1968 could be challenged in a Court of law. Howeverthe learned District Judge did not follow the judgment in the aforesaidcase on the purported basis that the facts pertaining to Ranasinghe’scase were different from the facts in this case. Consequently the learnedDistrict Judge answered the issues in favour of the 151 and 2nd Defendants-Respondents, and dismissed the 1st and 2nd plaintiffs-Appellants action.The Plaintiffs-Appellants lodged this Appeal mainly on the basis that thefailure of the learned District Judge to follow the Judgment of the SupremeCourt in the case of Ranasinghe Vs Ceylon State Mortgage Bank(supra)was erroneous in as much as the learned District Judge was not entitledto ignore a binding judgment of the Supreme Court merely on the purportedbasis that the facts of the instant case were different from the facts ofRanasinghe Vs. Ceylon State Mortgage Bank, (supra)
The Appellants aver that the learned District Judge was in grave error innot following the judgment of Their Lordships Neville Samarakoon CJ, Ismail,J, Sharvananda, J and Wanasundara, J who have clearly held that adecision made by the People’s Bank under the provisions of the StateMortgage and Investment Bank Act, No. 33 of 1968 could be challenged in
CA
Sivayanama and Another vs
People's Bank and Others (Imam J.)
33
a Court of law. The Appellants contend that consequent to the erroneousdecision of the learned District Judge, the Plaintiffs action had beendismissed solely on the basis that the decision made by the People'sBank was final and conclusive without an adjudication on the merits of thePlaintiffs case.
Hence the Plaintiffs-Appellants have challenged the judgment of thelearned District Judge on substantial grounds, namely that the failure ofthe learned District Judge to follow a binding judgment of the SupremeCourt was fundamentally erroneous and therefore should be set aside. Itwas contended on behalf of the “Respondents” that the order of the learnedDistrict Judge dated 20.06.2001 was hot an appealable order. Counsel forthe Respondents cited the case of Ranjit Vs. Kusumawathie and Others!2>in which case Dheeraratne, J had held that an order would be consideredas a final order only where it could be shown that which ever way the orderwent, it would finally dispose of the matter in dispute.
In Siriwardena Vs. Air Ceylon Ltd.{3) His Lordship Sharvananda, J (as hethen was) with Their Lordships Parinda Ranasinghe, J. and Collin Thome,
J.agreeing, in this landmark judgment of the Supreme Court concludedthat the test to be applied in order to determine whether an order is anappealable order or not, in order to be treated as an Appealable order, itmust be an order finally disposing of the rights of parties.
I have examined the preliminary objections of the Defendants-Respondents and the Appeal of the Appellants in detail. Section 754 (5) ofthe Civil Procedure Code provides as follows:-
“Notwithstanding any thing to the contrary in this Ordinance for thepurposes of this Chapter "Judgment” means any judgment or order havingthe effect of a final judgment made by any Civil Court and "Order” meansthe final expression of any decision in any civil action, proceeding or matter,which is not a judgment.
His Lordship Sharvananda J (as he then was) in his judgment inSiriwardena Vs. Air Ceylon (supra) having analyzed many cases concludedthat “The Test of finality is whether the order finally disposes of the rightsof parties.” In my view the decision in Siriwardena l/s Air Ceylon (supra)
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sets out the correct test to be applied in determining whether an order isan appealable order or not.
The Order dated 20.06.2001 of the learned District Judge of Matale hasanswered the preliminary issues, with the answer to the 3rd PreliminaryIssue being that the plaint should be dismissed. In any event the impugnedorder in this case being an order made on a preliminary issue a rightof Appeal against such order is available to the Plaintiffs-Appellantsas held in the case of White vs. Bruntons where it was held that “Since aPreliminary Issue, on a true Analysis-p. 606, is the first part of a finalhearing, and not an issue preliminary to a final hearing, it follows that anyparty may appeal without leave against an order or judgment on thepreliminary issue if he could have appealed without leave against the orderor judgment, if that issue had been heard as part of the final hearing andthe order or judgment on the preliminary issue had been made at the endof the complete hearing.” In the present case too the question whether thedecision of the People's Bank was final and conclusive so as to oust thejurisdiction of a Court of law was tried as a preliminary issue. On the basisof the decision in White vs. Brunton (supra) the Plaintiffs-Appellants wereentitled to a right of appeal from the order made by the learned DistrictJudge without obtaining the leave of Court.
However in view of the finality clause in section 71 (3) of the FinanceAct it is not possible for the Plaintiff to have and maintain this action. Thefinality clause reads as follows;- “ The question whether any premiseswhich the bank is.authorized to acquire under this part of this Act shouldor should not be acquired shall be determined by the Bank, and everysuch determination of the Bank shall be final and conclusive and shall notbe called into question in any Court of Law."
In this context section 22 of the Interpretation Ordinance is relevant. It
states “Where there appears in any enactmentthe expression” shall
not be called in question in any Court" or any other expression of similarimport whether or not accompanied by the words “whether by way of Writor otherwise" in relation to any order, decision or determination, directionor finding which any person, Authority or Tribunal is empowered to makeor issue under such enactment, no Court shall in any proceeding orand upon any such ground whatsoever have jurisdiction to pronounce
CA
Majeed us
New Eastern Bus Company Ltd and Another
35
upon the validity or legality of such order, decision and determination,direction or finding made or issued in the exercise or the apparent exerciseof the power conferred on such person or Tribunal.
Thus the Plaintiff cannot have and maintain this action in the DistrictCourt in view of the aforesaid finality clause read with section 22 of theInterpretation Ordinance, and the learned District Judge has correctlydismissed the action.
In Ranasinghe Vs State Mortgage Bank (supra) the Court held thatnotwithstanding the provisions of the Interpretation Ordinance, declaratoryrelief is available against the Bank where there is a total lack of jurisdiction.Hence the learned District Judge’s decision is correct in law. It is my viewthat the order made by the learned District Judge on 20.06.2001 is a finalorder as it finally disposed of the rights of parties. Although on a preliminaryissue there exists a right of appeal, an Appeal would be futile for theaforesaid reasons. Hence for the aforesaid reasons I see no reason tointerfere with the order of the learned District Judge dated 20.06.2001, andhence I dismiss the Appeal filed by the Appellants without costs.
BALAPATABENDI, J.—/ agree.
Appeal dismissed.