VANDER POORTEN ,Appellant, and VANDER POORTEN et al , Respondents

033-NLR-NLR-V-51-VANDER-POORTEN-Appellant-and-VANDER-POORTEN-et-al-Respondents.pdf


WIJEYEA’AKD£^E C.J.—Vander Poorten v. Vander Poorten
143
1949Present: Wljqyewanlene C.J. and Gunasekara J.VANDER POORTEN, Applicant, and VANDER POORTENet al.y Respondents
S. C. 172—Application fob conditional leave to appeal to the
Pbivy Council in S- C. 496, D. C. Kandy, 1,656/M.R.
Priify Council—Application /or leave to appeal—Compulation of amountin respect of which appeal lies as of right—Ground of appeal elated innotice to opposite party—Can it be altered subsequently ?—Notice givenby attorney of applicant—Is it valid ?—Appeals (Privy Council)Ordinance (Cap. 85), Schedule, Rules 1 and 2—Appellate Procedure(Privy Council) Order, 1921, Rules 5, 6 and 19.
Plaintiffs, as beneficiaries under a last will, obtained judgment againstthe defendant for a sum of Rs. 1,000 as their share of a fund of Rs. 10,000.Defendant, howe.vcv, sought to appeal to the Privy Council as of righton the ground that in view of tho decree entered against him he wasexposed to the risk of claims being mado against him by tho otherbeneficiaries trying to recover their shares of the Rs. 10,000.
Held, that the matter in dispute on the appeal did not involve aclaim of the value of Rs. 5,000 and the defendant was not entitledto leave to appeal.
Obiter: An applicant for conditional leave to appeal to the PrivyCouncil is not entitled to alter the ground on which ho asks for leave toappeal after the lapse of fourteen days from the date of judgment.
Quaere, whether notice of application for leave to appeal given to theopposite party by a duly appointed attorney of the applicant is valid.
THIS was an application for conditional leave to appeal to the PrivyCouncil from a judgment of the Supreme Court.
N. K. Choksy, K.C., with M. P. Spencer, for defendant applicant,
N. E. Weerasooria, K.C., with G. T. Samarawickreme, for defendantsrespondents.
Cvr. adv. vuU,
November 7, 1949. Wjjeyewardene C.«T.—
This is an application filed by the defendant on April 9, 1949, underRule 2 in the Schedule to the Appeals (Privy Council) Ordinance forleave to appeal to the Privy Council from a final judgment of this Courtdelivered on March 11, 1949. The application states:—
“ that the matter in dispute on the appeal amounts to or is of the
value of Rs. 5,000 or upwards ” ;
that the applicant “ by notice dated March 24, 1949, duly
intimated to the plaintiffs-respondents his intention to soappeal ….”.
The plaintiff objected to the application on the following grounds :—
that the notice pleaded in the application was bad ;
that the matter in dispute was below Rs. 5,000.
u
1J. V. A 64(69-1,040 (1/60)
146
WUEYEWARDENE C.J.—Vander Poorttn v. Vender Poorten
Before dealing with the objections, I shall give a brief statement ofthe facts of the case. The first and second plaintiffs who are minors wererepresented in this action by their mother, the third plaintiff, as nextfriend. The minors are beneficiaries in respect of l/20th share, each, inthe residuary estate of A. J. Vander Poorten who died leaving a lastwill which was proved in D. C. Kandy (Testy.) 50. Probate was grantedto the defendant and two other executors. The plaintiffs asked for adecree in this action against the defendant personally directing him“ to pay into Court in this action for the benefit of the estate of thesaid A. J. Vander Poorten a sum of Rs. 10,000 ” being the proceedsof a cheque misappropriated by him or, in the alternative, to pay tothe first and second plaintiffs Rs. 1,000 being their 1 /10th share ofRs. 10,000. In the course ol the action, the plaintiffs restricted theirclaim to an order on the defendant to pay them Rs. 1,000. Aftertrial the District Judge gave them judgment for Rs. 1,000. Thedefendant appealed against that judgment and the appeal was dismissedby the Supreme Court.
1 proceed now to deal with the objections raised by the respondents’Counsel.
The notices referred to in the application were
(i) a telegram addressed to Mr. Kolugaln, Proctor for the plaintiffs,by Mr. Stave, Proctor for the defendant. That telegramreads:—“As guardian-ad-litem of Antoine and Michael(minor plaintiffs) in District Court Kandy case No. 1656 takenotioe.,,. . .
(ii) a similar telegram addressed to the third plaintiff by Mr. Stave ;
“notices” sent to the plaintiffs and Mr. Kolugala, signed byMr. Stave and by the defendant “by his Attorney ”Mr. J. F. Martyn, authorised by a power of attorney to act forthe defendant in respect of all matters connected with appealsto the Privy Council.
Mr. Kolugala’s proxy empowering him to act under the Ordinance isdated May 19, 1949, and Mr. Stave’s proxy is dated April 9, 1949.
Apart from the fact that the telegram to Mr. Kolugala was addressedto him “as guardian-ad-litem of Antoine and Michael” Mr. Kolugalawas not, at the time he received the telegram and “ notice ”, a Proctorof the plaintiffs “ empowered to accept service thereof ” [sec Rule 5aof the Appellate Procedure (Privy Council) Order, 1921]. Mr. Stavehimself had no authority to act for the defendant and send the telegramsand “ notices” as his proxy was dated April 9, 1949. There remainsfor consideration the validity of the “ notice ” signed by the defen-dant “ by his Attorney It is contended by the plaintiff that thatnotice too is bad, as a notice could be signed only by a party or by aProctor for & party empowered to act under tbe Ordinance. This con-tention is based on Rule 6 of the Order which states, “ A party to anapplication under the Ordinance. . . . shall, unless he appears in
VVIJEYEWARDENE C.J.—Vander Poorten v, VanderPoorten
147
person, file in the Registry a document in writing appointing aProctor of the Supreme Court to act for him in connection therewith. . . . It is, however, not difficult to take the view thatRule 6 applies only to what has to be done in Court and not to a noticeof “ an intended application ” referred to in Rule 2 in Schedule 1 tothe Ordinance and not given with the assistance of the Court. Sucha view of the law has the merit of not placing unnecessary technicaldifficulties in the way of a party wishing to appeal to His Majestyin Council. If that view is correct, the party required to serve noticemay do so by a writing signed by him “ by his Attorney ”, as thatis permissible under the common law and there is nothing in Rule5 to show that the right under the common law has been takenaway. A certain difficulty is however created by a decisionof this Court. In Annamalay CHetiy v. Thornhill1, a Benchof two Judges held against the validity of an application for conditionalleave to appeal which was made by a Proctor appointed by a dulyauthorised Attorney of a party. When the same question came up sub-sequently before another Bench of two Judges, it was referred to a Divi-sional Bench, as it was felt that thee&rlier decision needed reconsideration.The Divisional Bench overruled the earlier case. There are, however, pas-sages in the judgment of the Divisional Bench {Muttucarupen ChetUarv. Mohamed Salim2) which seem to suggest that a notice given by aduly appointed Attorney is bad. I do not think it necessary to referthis question to a Divisional Bench, as we could give our decision onthe regularity of the present application without reaching a decision asto the sufficiency of the notice.
In considering the second objection of the plaintiffs, it should beremembered that the right of appeal given to parties in a civil action issubject to certain, limitations. They could appeal
“ As of right, from any final judgment of the Court, where the
matter in dispute on the appeal amounts to or is of the valueof five thousand rupees or upwards M ;or
“ As of right, from any final judgment of the Court, where the
appeal involves directly or indirectly some claim or questionto or respecting property or some civil right amounting to orof the value of five thousand rupees or upwards ” ; or'C.“ At the discretion of the Court, from any other judgment of the
Court, whether final or interlocutory, if, in the opinion of theCourt , the question involved in the appeal is one which by reasonof its general or public importance or otherwise ought to besubmitted to His Majesty in Council for decision ” (Bee ScheduledRule 1).
Now the decree against which an appeal is sought to be taken ordersthe defendant to pay a sum of Rs. 1,000 and costs. The applicant,therefore, cannot appeal as of right under A above. Counsel for theapplicant did not seek to oome under C above. He argued, however,1 (»M) 36 N. L. R. 413.* {1939) 40 if. L. R. 145.
148
WIJEYEWAKDENE C.J.—Vander Poorlen v. Vander Poorten
that he had a Tight of appeal under B above. That contention wasbaaed on the ground that in view of the decision in the present case thedefendant was exposed to the risk of claims being made against him byother beneficiaries in the estate of A. J. Vander Poorten trying torecover their shares of the sum of Rs. 10,000 mentioned above. Thoseshares, it may be stated, would amount to only Rs. 4,500, as the defen*dant himself is entitled to 9/20th of the residuary estate. The judgmentin this case would not operate as res judicata in favour of the otherbeneficiaries. Moreover, it is quite possible that the defendant may havevarious defences against those beneficiaries which were not availableto him in the present action. There is also no evidenco that any of theother beneficiaries have sued the defendant or even threatened to suehim. I am, therefore, unable to hold that the applicant is entitled asof right to appeal as stated in B above (vide Gooneratne v. The Bishopof Colombo1). On this ground, at least, the application for leave to appealmust fail.
I wish, however, to refer to a matter that was argued at some lengthbefore us. In his application to the Court the applicant claimed a rightof appeal on the ground that the matter in dispute was of the value ofRs. 5,OIK). Could he at the argument before this Court long after thelapse of the specified period of thirty days claim that he had a rightof appeal as stated in B above 1 Now Scheduled Rule 2 requires anapplication for conditional leave to appeal to be made within thirtydays of the judgment of this Court and notice of the intended applicationto be given to the opposite party within fourteen days of that judgment.The main, if not sole, object of giving notice is to enable the oppositeparty to be prepared to show, if possible, that the plaintiff is not entitledto appeal. The opposite party should, therefore, know in time whetherthe applicant claims a right to appeal and in that case, on what grounds,or whether ho pleads that the Court should exercise its discretion inhis favour and permit him to appeal. It appears to me that the veryobject of requiring ft party to give notice within a specified time willbe defeated if the applicant is allowed to alter the ground on which heasks for leave to appeal after tho lapse of fourteen days from the doteof judgment. This view of mine derives some support from an exami-nation of the Appellate Procedure (Privy Council) Order, 1921. ThoseRules were made by the Supreme Court under section 4 of the Appeals(Privy Council) Ordinance which empowered the Supreme Court to“ make rules for regulating the form and manner of proceeding NowRule 19 of the Order enacts that “ the form contained in Schedule 2 to theOrder may bo used or others to the like effect The “ form of petitionfor conditional leave to appeal ” given in Schedule 2 shows clearly thatthe applicant is expected to state specifically whether the applicationis made on the ground A, B or C above.
The application is refused with costs.
GtTNASBKARA J.—I agree.
Application refused.
1 (J93J) 33 A'. L. R. 63.