Northway V. Naatchia

Present: Middleton J.

NORTHWAY v. NAATCHIA.

368-C. R. Galle, 10,782.

Court of Requests-Appeal on law and on facts in cases other than land cases-Appellant should not wait till leave to appeal on facts he allowed to appeal on the law-Ordinance No. 12 of 1895, s. 13 (1). A party desiring to appeal both on the law and the facts in a Court of Requests case other than a land case must file his appeal on the law within' the appealable time.

If subsequently his application for leave to appeal on the facts be granted by the Supreme Court, both the appeals may be argued together.

THE facts appear in the judgment.

A. St. V. Jayewardene, for the defendant, appellant, argued on the facts, and then urged that even on the facts as found by the Commissioner the defendant was not liable to pay damages.

E. W. Jayewardene, for the plaintiff, respondent.-No question of law can be urged at this stage. The appellant did not appeal on any point of law within the appealable time. He applied for leave to appeal on the facts, and he obtained leave. He must now confine his appeal to questions of fact; if he wished to raise any question of law he should have appealed at once, and should not have waited to appeal on the law till he obtained leave to appeal on the facts. See Wettachi v. Alwis.1

The question of law now raised was not raised at the trial. No issue was framed on the point. The question could not, therefore, be raised now. Counsel cited Fernando v. Soysa,2 Attorney-General v. Smith,2 Moung v. Mali,4 Punchanun Roy v. Toyluckho,5 Ahmedee Begum v. Dabee Persand,6 Davies v. Baur.7

A. St. V. Jayewardene, for the appellant. -All the facts necessary to raise this question of law are on the record. The Appeal Court would under the circumstances decide the question of law raised. See The Tasmania,8 Madho Pershad v. Gajadhar.9

1 (1900) 4 N. L. R. 126.                                                 5 14 W. R. 466.

2 (1896) 2 N. L. R. 40, at page 43.                             6 18 W. R. 289.

3 (1905) 8 N. L. R. 229, at page 241.                        7 2 Bal., sup., 16.

4 10 Cal. 777.                                                                    8 L. R. 15 Appeal Cases 225.

9 L. R. 11 I. A. 186.

When leave to appeal is necessary, it would be convenient to embody in one appeal petition both the points of law and facts. If two appeals have to be filed it would be inconvenient; security will have to be given twice. The Civil Procedure Code does not contemplate two different appeal petitions.

Cur. adv. vult.

October 26, 1911. Middleton J.-

This was an action for damages against the defendant as the owner of a dog for unpsetting the plaintiff's motor bicycle. The answer denied the ownership of the dog, or that the dog chased after or ran against the bicycle of the plaintiff. There was no plea denying the liability, even if the ownership of the dog was proved to be in the defendant. In my opinion paragraph 5 of the plaint, taken in connection with paragraph 2 of the answer, raises no such denial, but merely amounts to a denial that damages should be assessed at Rs. 100.

The issues settled were: (1) Is defendant the owner of the dog in question? (2) Damages. The damages were agreed on at Rs. 75.

The plaintiff appeared by proctor, and the defendant by advocate and proctor- a fact I emphasize-and the Commissioner of Requests found in the affirmative on the facts against the defendant, and gave judgment for Rs. 75 accordingly.

The defendant did not appeal on the question of law which she now raises, and that, question was not even raised incidentally at the trial. The defendant, however, sought and obtained leave to appeal on the facts from this Court, and has now embodied in her petition of appeal the question of law whether she is liable for damages, even if she is proved to have owned the dog.

After hearing the appellant on the facts, I see no reason for holding that the Commis

Click Here to Read the rest of this document