Sri Lanka Law Reports
(2003) 2 Sri L.R
COURT OF APPEALUDALAGAMA, J., ANDNANAYAKKARA, J.
CA NO. 202/93 (F)
D.C. COLOMBO 694/MAUGUST 1,2002 andFEBRUARY 28, 2003
Civil Procedure Code, section 754 (2) – Bill of costs allowed – Application forwrit – Moved for postponement – Refused – Order allowing writ – Is this anorder or judgment?
The impugned order if it was to be given in favour of the plaintiff-appel-lant, whereby he would have succeeded in obtaining a postponement,further proceedings would ensue – in which event the order would bean interlocutory one. Furthermore, the impugned order would not varythe judgment already entered.
The impugned order is an interlocutory order.
APPEAL from the Order of the District Court of Colombo.
Cases referred to:
Ranjit v Karunawathie (1998 -3 ) SRI LR 232, 239,
Salaman v Salamon -1 QB 734
Peter Singho v Wideman – Vol.l. Srikantha – 88
Perera v Perera – 50 – NLR 61
Manohara de Silva for appellant.Respondent absent and unrepresented.
Yaseem Omar v P.I.A. Corporation(Udalaaama. J.)
June 25, 2003UDALAGAMA, J.
The plaintiff-appellant instituted D.C. Colombo Case No.C/694/M under the former Administration of Justice Law to restrainthe defendant from terminating the agreement referred to in thepleadings to the plaint entered into between’the plaintiff and thedefendant.
Admittedly, after trial by the judgment dated 31.01.79 thelearned District Judge dismissed the plaintiff's action withcosts.
It is apparent that subsequently the defendant-respondent ten-dered his bill of costs on 31.07.86 and after an inquiry before theDistrict Judge the latter allowed the bill of costs and the defendant-respondent thereafter applied for writ.
When the objection of the plaintiff-appellant to the aforesaidapplication for writ was filed and the matter was taken up for inquiryon 11.01.93 learned Counsel for the plaintiff-appellant moved for apostponement on the ground of ill-health. The learned DistrictJudge by his impugned order of the same date refused the plain-tiff's application and allowed the defendant-respondent his right toan issue of writ.
Aggrieved, the plaintiff-appellant appeals.
Firstly it is manifest that the order against which this finalappeal had been presented was in fact not a final judgment, nor isit an order having the effect of a final judgment.
As held in Ranjith y Kusumawathe.W Justice Dheeraratneconsequent to considering 18 reported cases inclusive of the defi-nition found in the text of E.R.S.R. Coomaraswamy's Law ofEvidence, Vol. 1. p. 532 quoted with approval Lord Esher (Salamonv Salamori2>) who observed as follows: on the test to determinewhether the order was final or interlocutory – “The question mustdepend on what would be the result of the decision of the DivisionalCourt assuming it to be given in favour of either of the parties. Iftheir decision, which ever way it is given, will if it stands, finally dis-pose of the matter in dispute, I think for the purpose of the rules itis final. On the other hand, if their decision given one way, will final-
Sri Lanka Law Reports
(2003] 2 Sri L.R
ly dispose of the matter in dispute, but if given in the other, will allowthe action to go on, then I think it is not final but interlocutory.”
The impugned order in the instant case if it was to be given infavour of the plaintiff-appellant whereby he would have succeededin obtaining the postponement, further proceedings would ensue inwhich event considering the above test I would hold that the orderto be an interlocutory one.
The impugned order would not vary the judgment admittedlyalready entered as far back as 31.01.79. As held in Perera v
PereraS3) if an order purports to vary a decree it is a final orderfrom which an appeal would lie. Hereto I would hold that theimpugned order would not vary the decree already entered in theabove case.
As also held in Peter Singho v Widemari4). when an applica-tion refers to an order dismissing an application under the provi-sions of section 86 of the Civil Procedure Code it would be a finalorder where a direct appeal would lie. The impugned order is notone arising from an order under the provisions of section 86 of theCivil Procedure Code.
Accordingly I am inclined to the view that the impugned orderis an interlocutory one attracting the provisions of section 756 (2)whereby the appellant ought to have proceeded by way of leave toappeal.
Accordingly this appeal is misconceived and is dismissed withcosts.