Shiran Gooneratne J.

[1] By Plaint dated 20/02/2002, the Plaintiff-Appellant-Respondent (hereinafter sometimes referred to as the “Plaintiff-Respondent”) instituted Action No. 19530/L in the District Court of Colombo (hereinafter referred to as the “first action”) against the Defendants-Respondents-Appellants (hereinafter sometimes referred to as the “Defendants-Appellants”), seeking, inter alia, a declaration of title to the land in dispute, the ejectment of the Defendants-Appellants from the said land, and the recovery of damages.

[2] The first action, bearing No. 19530/L, was dismissed by the District Court on 23/05/2003 for non-compliance with an imperative provision of the Civil Procedure Code. Thereafter, the Plaintiff-Respondent filed an Appeal, bearing No. 412/2003(F), in the Court of Appeal, seeking to have the said dismissal set aside.

[3] While Appeal No. 412/2003(F) was pending before the Court of Appeal, the Plaintiff-Respondent instituted another action, bearing No. 19999/L (hereinafter referred to as the “second action”), in the District Court of Colombo against the same Defendants, based on the same cause of action relating to the same land, notwithstanding the pendency of the Appeal in Action No. 412/2003(F) before the Court of Appeal.

[4] In their Answer, the Defendants raised a preliminary objection to the maintainability of the second action, contending, inter alia, that the pendency of the Appeal in the first action rendered the second action misconceived in law. The Defendant-Appellants accordingly sought a ruling on the maintainability of the Action No. 19999/L. Upon consideration of Issue No. 19, raised on the preliminary objection, the learned District Judge upheld the objection and dismissed the second action before the conclusion of the Defendant’s case.

[5] In the Order dated 26/03/2007, the learned District Judge observed that the Plaintiff-Respondent, by motion dated 19/10/2006, had brought to the attention of Court that an application had been filed in the Court of Appeal seeking leave to withdraw Appeal No. 412/2003(F), being the Appeal in Action No. 19530/L. However, the Court observed that the Plaintiff-Respondent had failed to establish that the said application for withdrawal had been allowed by the Court of Appeal or that the Appeal had been withdrawn.

[6] Accordingly, the District Court on 26/03/2007 held that the Plaintiff- Respondent was not entitled to institute and maintain the second action, as the Appeal against the dismissal of the first action remained pending before the Court of Appeal as of the relevant date.

[7] Being aggrieved by the said Order dated 26/03/2007, the Plaintiff-Respondent by Petition of Appeal bearing No. WP HCCA/COL/138/2007(F) dated 18/05/2007 appealed to the Civil Appeal High Court holden in Colombo (“the Appellate Court”).

[8] Before the Appellate Court, the Plaintiff-Respondent contended that the dismissal order amounted to a final judgment within the meaning of Section 147 of the Civil Procedure Code, since it determined a pure question of law, namely res judicata, which, once upheld, brought the proceedings to an end. It was argued that because the Order disposed of the entire action, it was final in nature and could therefore be appealed as of right.

[9] The Plaintiff-Respondent sought to distinguish Ranjit vs. Kusumawathie, [1998] 1 SLR 73 from Siriwardena vs. Air Ceylon Ltd, [1984] 2 SLR 293 on the basis that in the former, the Order arose from an application made in the course of proceedings, whereas in the present case, the dismissal was based on a preliminary issue framed at the outset. Reliance was placed on Siriwardena vs. Air Ceylon Ltd, ibid where an Order was held to be final if it disposed of the entire matter in litigation and left nothing further for adjudication.

[10] The Defendant-Appellants, however, argued that the Order was interlocutory and therefore required Leave to Appeal. They relied on Ranjit vs. Kusumawathie, n (1) and the English decision