DELMEGE et al. v. DELMEGE

DELMEGE et al. v. DELMEGE.

D. C., Colombo, C4,988.

Civil Procedure Code, s. 781-Application for certificate at to fulfilment of requirement of s. 42 of the Courts Ordinance-Plaint for injunction and damages Value of subject-matter in issue.

Where, in an action raised to restrain the defendant from trading under a certain name and to recover Rs. 9,000 as damages consequent upon the use of such name, no value was assigned in the plaint to the use of such name, and no issue relating to damages was framed, nor any attempt made to prove damage at the trial, and the dismissal of plaintiffs' case was affirmed by the Supreme Court

Held that, under section 42 of the Courts Ordinance, the value of the subject-matter of the suit was to be determined by the statement in the plaint, whether proved or not, and that a party desiring to appeal to Her Majesty in Her Privy Council was entitled to the certificate referred to in section 781 of the Civil Procedure Code.

THIS action was raised to restrain the defendant from trading  under the name and style of Delmege, Reid k Co., and to recover Re. 9,000 as damages. No value was placed on the right to use the name. The District Judge refused the injunction and dismissed the plaintiffs' case, as no damages were proved.

On appeal, this judgment was affirmed by the Supreme Court, now the plaintiffs preparatory to an appeal to the Privy Council, h, 1898. applied to the Supreme Court for a certificate under section  781 of the Civil Procedure Code, that as regards amount, value, and nature the case fulfilled the requirements of section 42 of the Courts Ordinance.

Layard, A.-G. (with him Dornhorst and Loos ), appeared in support of the motion, and cited D. C. Colombo, 2,298 (Hadjiar v. Pitchey), in which the Privy Council gave leave to appeal, on the footing that the value of the subject-matter of the suit was to be determined by the statement in the plaint.

Dumbleton (with him Van Langenberg and De Saram), for defendants.

Cur. adv. vult.

3rd January, 1896. Bonser, C.J.

This is an application for a certificate under section 781 of the Civil Procedure Code by plaintiffs, whose action has been dis­missed by the District Court and by this Court, and who wish to have the case heard in review by the Full Court. My brother Lawrie, to whom the application was first made, having some doubt as to the propriety of granting the certificate, has referred it to this Court. The certificate which is asked for is one " either

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