152-NLR-NLR-V-48-THE-ATTORNEY-GENERAL-Appellant-and-MACKIE-Respondent.pdf
478
CANEKERATNE J.—The Attorney-General v. Mackie.
1947Present: Canekeratne and Dias JF.
THE ATTORNEY-GENERAL, Appellant, and MACKIE, Respondent.
S. C. 30—D. C. Colombo, 71 T.
Estate Duty Ordinance—Petition of Appeal—Order to file Statement of
Objections—Powers of Court—Section 40—Chapter 187.
On the filing of a petition of appeal under section 40 of the EstateDuty Ordinance the District Judge ordered the Attorney-General tofile a statement of objections with the following directions “ I accordinglycall upon the Attorney-General to file a statement setting out the basisof the Commissioner of Estate Duty’s assessment giving details undersuch heads as goodwill, depreciation, &c. He may at the same time referto any questions of fact or law raised in the petition of appeal or onwhich he proposes to rely
Held, that the directions contained in the order were ultra vires.A Court should not dictate to parties how they should frame their case.
PPEAL from a,' judgment of the District Judge, Colombo.
H. H. Basnayake, K.C., Acting Attorney-General (with him H. Deheragoda,C.C.), for the Crown, appellant.
F. A. Hayley, K.C. (with him S. J. Kadirgamer), for the petitioner,respondent.
Cur. adv. vult.
September 15, 1947. Canekeratne J.—
The Executors of the Last Will and Testament of C. W. Mackie,deceased, delivered a declaration of property passing on his death to theCommissioner of Estate Duty. An Assessor issued a notice of assessmentfixing the net value of the estate in Ceylon at Rs. 2,918,141. TheExecutors as persons aggrieved by the decision of the Assessor had aright of appeal to the District Court of Colombo; so they followed theprocedure prescribed by the Ordinance. A specific statement’ of thegrounds of appeal was delivered to the Commissioner within 30 daysafter the date of the notice of assessment. As the Commissioner main-tained the decision on one matter, namely, on the valuation placedon the Cumulative Preference Shares Rs. 828,090. as against Rs. 806,017the valuation of the Executors and did not withdraw his claim in respectof another but varied the decision thereon by reducing the valuation ofthe Management Shares from Rs. 300 a share to Rs. 250 as against Rs. 30the valuation of the Executors, they within 30 days decided to proceedwith their appeal by filing a petition to the District Court. A copy ofthe petition was served on the Attorney-General, the respondent to thepetition. The appellants may only rely on their petition, and at thehearing of the grounds contained in this original statement (petition ofappeal—section 39): a Court, however, can give leave to amend thepetition (section 41). On July 18, 1946, the respondent’s proxy wasfiled in Court and the petition was set down for hearing on October 25;1946. When the matter came on for inquiry on this day. Counsel for theExecutors contended that the respondent should set out his objectionsto the method of valuation adopted by them and state which was the
CANEKERATNE J.—The Attorney-General v. Mackie.
473
correct method of valuation. The further consideration of this matterwas taken up on November 21, 1946. Thereafter the Judge made anorder to this effect: —“ I accordingly call upon the Attorney-General tofile a statement setting out the basis of the Commissioner of EstateDuty’s assessment giving details under such heads as goodwill, deprecia-tion, &c. He may at the same time refer to any questions of fact or lawraised in the petition of appeal or on which he proposes to rely ”.
The petitioners, on June 15, made an application to the Court forrelief. Such application may be considered an action under the Code ofCivil Procedure (Ch. 86, C. L. E. section 6). The procedure, however, ina proceeding of this kind differs materially from that which would prevailin an ordinary action in regular procedure under the Code, for there theperson against whom the application is made is called upon formally tostate his answer to the case alleged against him. Only after the answeris filed is the matter in issue, between the parties. A plaintiff’s pleadingis his plaint, a defendant’s pleading is his answer : a statement filedafter the answer, such as a replication is also a pleading’. No pleadingsafter answer can be filed except where there is a claim in reconvention orexcept by order of Court made before the day appointed for the hearingof the action5. The whole object of pleadings is to bring the parties to anissue. All necessary particulars are sometimes not embodied in thepleadings : where this has not been properly done Courts in some placeshave a wide power to order particulars to be given. Particulars thensupplement pleadings which would otherwise be too vague and general,and ensure a fair trial by informing the opposite party what case he hasto meet. In Ceylon the power to order particulars is not so wide *.
The distinction between particulars and evidence must be steadfastlykept in mind. Particulars,-however, are not ordered of the mode inwhich it may be proposed to prove the case set up in the pleading. Promthe nature of the case the occasion for particulars arises somewhat lessfrequently in regard to defences than in regard to claims.' Where adefence consists of traverses or denials of allegations in the claim, theoccasion for particulars does not arise; but. where a defendant/pleadsaffirmatively or sets up facts to be proved in answer to the plaintiff’s case,as where, he sets up a defence of payment, he may be, and in generad is asmuch under an obligation to give particulars as if. he were, alleging'suchor similar matters in a plaint.
It is necessary to consider section 40 of the Estate Duty Ordinance.Though there may be an action between the Executors as plaintiffs andthe Attorney-General as defendant all the provisions in the Code relatingto pleadings are not applicable. The attorney-General is under noobligation to file a statement in answer to the petition of the appellants.But a Court is given power to make a special order. If the Court is ofopinion that in any particular case it is necessary to have some otherpleading before it, it can make an order to that effect. A Court may
Sections 39, 72, 75, of the Code {Ch. 86).
Cf. Emalishamy v. Kannangara (1904) 1 Bal. 11—•plaint and answer referred to as pleadings.
Order vi. r. 1 of the Indian Code of Civil Procedure.
Section 79 of the Code (Ch. 86).
1 Section 40 (d) section 46, a,'b,—see 2 C. L. R. 35 ; 2 Bal. N. C. 28.
48/37
480
CANEKERATNE J.—The Attorney-General v. Mackie.
more readily listen to an application made by the respondent for permis-sion to file a statement than to one made by the petitioner with theobject of getting the other party to file a statement for in the latter casethe burden is on the petitioner to show that it is necessary in the circums-tances of the case that such an order be made. On July 18, the matterwould ordinarily be deemed at issue between the parties. There wouldthen only have been the petition filed by the appellants before the Court.The Executors when they filed their petition were aware of the valuationplaced on the disputed items by the Commissioner. Their position wasthat these valuations were excessive. They were apparently aware ofthe grounds on which the Commissioner appears to have proceeded, forthey state how the Management Shares should be valued in terms ofsection 20 (1) of the Ordinance, that the provisions of sub-section (6) ofsection 20 are inapplicable and that goodwill must not be taken intoconsideration.
The reason given by the Judge for allowing the application is a mistakenone in that it does not take account of the full facts of the case. Thequestion is not whether it is desirable to get the details so as to confine“ the proceedings to manageable proportions ” (p. 8 of the record) butwhether the Judge had power to order these details to be given. Thisis an attempt to impose a burden on the respondent which is not warrantedby the language of the section. The rule that the Court should notdictate to parties how they should frame their case is one that oughtalways to be preserved sacred.
The next question is whether this Court should mould the order of theJudge and limit it to only so much as is well founded. I think it a fairview to make an order to the effect that the respondent should file astatement by way of answer.
The order of the trial Judge made on November 28, 1946, is set aside:the costs of appeal and of the inquiry will be costs in the cause.
Dias J.—I agree.
Order set aside.