044-NLR-NLR-V-52-SUBBIAH-PILLAI-Petitioner-and-FERNANDO-Respondent.pdf
Present : Jayetileke C.J. and Swan J.
SUBBIAH PH/LAI, Petitioner, and FERNANDO, RespondentApplication 366—S. C. 209 'D. C., Colombo, 17,332
_Privy Council—Application for conditional leave to appeal—Action between landlordand tenant—Valuation of the right to possession of the premises—Appeals(Pricy Council) Ordinance. Copt 86, Schedule, Buie X (a).
In an action between landlord and tenant the right to possession of the pre-mises in question must be valued at the rental reserved by the contract oftenancy, for the purpose of valuing the matter in dispute in an applicationfor conditional leave to appeal to the Privy Council.'
^A-PPT.TrATION for conditional leave to appeal to the Privy Council.
N. E. Weerasooria, K.C., with T. Arulambalam- and C. Chellappah,for the defendant petitioner.
Vernon Wiietunge, for the plaintiff respondent.
Cut. adv. vult.
September 26, 1950. -Jayetileke C.J.—
This is an application by the defendant for conditional leave to appealto the Privy Council. Under rule 1 (a) of the rules set oat in the scheduleto the Appeals (Privy Council) Ordinance (Chapter 85) an appeal lies as•of right from any final judgment of.the Supreme Court where the matterin dispute on the appeal amounts to or is of the value of five thousandrupees or upwards or where the appeal involves directly or indirectlysome claim or question to or respecting property of some civil rightamounting to or of the value of five thousand rupees or upwards. The■plaintiff opposed the application on the ground that the matter in dis-pute on the appeal is less than Rs. 5,000. The test to be applied in con-sidering the question whether the matter in dispute is of the value of3ess than Rs. 5,000 is thus stated by Lord Selbome in Allan v. Pratt.1
“ The judgment is to he looked at as it affects the interests of theplaintiff who is prejudiced by it and who seeks to relieve himselffrom it by appeal.”
The plaintiff alleged in his plaint that in the year 1944 he took on rentfrom the defendant the northern half portion of premises No. 130,
B. 13 A..G.781.
Fourth. Cross Street, Pettah, at a monthly rental of Es. 165 and thaton September 18, 1946, • the defendant wrongfully and unlawfully pre-vented him from entering the said premises by locking the gate at theentrance. He claimed a sum of Us. 6,000 as damages from September 18,1946, up to the date of the institution of the action, an injunction to-restrain the defendant from interfering with his occupation of the saidpremises and further damages at Es. 500 per day till the defendantremoved the obstruction. He valued the subject matter of the action,at Es. 6,000 which represents approximately the amount he claimedas damages from September 18, 1946, up to the date of the institutionof the action.
The defendant denied that the 'plaintiff was a tenant. He alleged,that he gave the plaintiff permission to store his goods in a portion ofan open room in the said premises and charged the plaintiff a sum ofEs. 165 as hire for the use of it and on September 27, 1946, he gave the*plaintiff notice to vacate the said premises at the end of October, 1946..He alleged further that the plaintiff caused loss and damage to him byforcing open a gate leading to the said premises on October 5, 1946,.and by failing to remove his belongings from the said premises at the*end of October, 1946. He claimed in reeonvention a sum of Es. 165>as rent for December, 1945, and Es. 2,000 as damages.
After trial the learned District Judge entered judgment in favour of:the plaintiff as prayed for in his plaint with damages at Es. 5 a dayfrom September 18,1946, and dismissed the defendant’s claim im
reconvention.
Thedefendant appealed fromthisjudgmentandthis Courtby its-
judgment dated June 30, 1950, reduced the damages to Ee. 1 a day.
Thetotal amount payable bythedefendanton the decreeof this-
Courtis Es. 1,380. The defendantis clearlynotentitled toappeal,
against that part of the decree to the Privy Council. The decree,however, condemned him to pay damages till he removed the obstruction.-That part of the decree involves the right to possession. The District•Judge was not invited to assess that right and there are no materials-before us on which we can say that it amounts to or is of the value o£five thousand rupees or upwards. On the pleadings it appears to us–that the relationship of landlord and tenant existed between the defen-dant and the plaintiff. The defendant says that he hired a portion ofTthe premises to the plaintiff to store his goods and the plaintiff says-that he took a portion of the premises on rent from the defendant tocarryon his business. In anaction betweenthelandlord and the-
tenant the right to possession must be valued at the rental reservedby the contract of tenancy. The applicant 4s not entitled as of rightto appeal in this case and I would therefore refuse his application withscosts.
Swan J.—I agree.
Application refused-