S.R. CHETTIAR AND OTHERS V.S.N. CHETTIAR

S.R. CHETTIAR AND OTHERS V.S.N. CHETTIAR

SUPREME COURT,
J. A. N. DE SlLVA , C.J.,
DR. SHIRANI A. BANDARANAYAKE J.,
AMARATUNGA , J.,
MARSOOF, J. AND
RATNAYAKE ,J.
S.C (APPEAL) NO. 101 A/2009
S.C.H.C.(C.A) LA NO. 174/2008
H.C. APPEAL I WP/HCCA/COL NO. 83/2008 (L.A.)
D.C. COLOMBO NO. 428/T
MARCH 3RD ,2010

Civil Procedure Code - Section754(1) - Mode of preferring an appeal - Section 754(5) - Interpretation of "judgment" and "order" for purposes of the chapter LVIII, Section 5 of the Civil Procedure Code.

when shall an order have the effect of a judgment and decree within Me meaning of Section 754(5) of the Civil Procedure Code.

This was an appeal from an order of the Provincial High Court of Civil Appeal of the Western Province. The High Court by its order, overruled the preliminary objection raised by the 2nd to 4th defendants- respondents - appellants (appellants) on the basis that the plaintiff - petitioner - respondent's (plaintiff) leave to appeal application filed in the High Court is misconceived and that the respondent was only entitled to a find appeal.

The appellant preferred an application to the Supreme Court against the said order and the Supreme Court granted leave to appeal and it relates to the rejection of the said preliminary objection as to whether the order dated 14.5.2008 of the District Court of Colombo was a final order in terms of Section 754 of the Civil Procedure Code.

As the appeal related to a matter in respect of which there were two conflicting decisions of the Supreme Court given by numerically equal Benches of the Supreme Court. (Siriwardena V, Air Ceylon Ltd., (1984) 1 SLR 286, and Ranjith V. Kusumawathi (1998) 3 SLR 232, the matter was referred to a Bench of five Judges.)

Held :

(1) A final judgment or order should be interpreted for the purpose of Chapter LVIII of the Civil Procedure Code not according to the meaning given in Section 5 of the Civil Procedure Code, but that of the definition given in Section 754 (5) of the Civil Procedure Code.

(2) In terms of Section 754(5) of the Civil Procedure Code a judgment wouId mean any judgment of order having the effect of a final judgment made by any Civil Court and an order would mean the find expression of any decision in any Civil action, proceeding or matter which is not a judgment.

(3) The order made by the Additional District Judge was in terms of Section 46(2) of the Civil Procedure Code. The rights of the parties were not considered by the District Court. In such circumstances it would not be probable to state that the order made by the District Court had finally settled the litigation between the applicants and the plaintiff.

Per Dr. Shirani A. Bandaranayak, C.J., ---

"the watershed in the long line of decisions which considered the test to determine a ' final judgment or order or an ' order' in my view was the decision of Lord Denning, MR., in Salter Rex and Co. V.Ghosh ( 1971 2 AER 865). After considering the decision in Bozon, Hunt V. Allied Bakeries Ltd. (1956) 3 AER 513, and Salarnan V. Warner, Lord Denning MR., had held that in determining whether an application is final or interlocutory, regard must be had to the nature of the application and not to the nature of the order which the court eventually makes and since an application for a new trial if granted would clearly be interlocutory and where it is refused it is still interlocutory. "

(4) In terms of Section 754(5) of the Civil Procedure Code, a decision of an Original Civil Court could only take the form of a judgment or an order having the effect of a final judgment or of the form of an interlocutory order.

(5) The order made by the District Judge on 14.5.2008 was in terms of Section 46(2) the Civil Procedure Code and by that order the Court had not considered the rights of the parties. In such circum

stances, it could not be probable to state that the District Judge by that ord

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