Balasubramaniam V. Valliappar Chettiar

1938   Present : Poyser S.P.J. and Keuneman J.

BALASUBRAMANIAM v. VALLIAPPAR CHETTIAR

S.C. No. 51 (linty.) and S. C. 286 (F)-
D. C. Colombo, 4,520.

Partnership-Parol evidence by way of defence-Stamps-Failure to supply stamps " together with " petition of appeal-Interlocutory appeal from an order admitting or rejecting evidence-Rejection of interlocutory appeal- Does it operate as an adjudication of the points raised in the appeal ?- Ordinance No. 7 of 1840, s. 21.

In an action brought by the executor of a deceased person to recover money on the basis of a gratuitous agency between the deceased and the defendant, the defendant is not precluded by section 21 of Ordinance No. 7 of 1840, from leading parol evidence of a partnership, in contravention of the section, in order to exclude the plaintiff's claim.
Silva v. Nelson (1 Browne 75) followed.

A tender of the deficiency in the value of stamps for the interlocutory appeal five days after the filing of the petition does not regularize the failure to tender the stamps " together with" the petition of appeal, even though the deficiency is made good within the appealable period.

An interlocutory appeal does not lie against the admission or rejection of evidence only.

The Supreme Court is free to consider the points raised in an interlocutory appeal rejected for non-compliance with the requirements of the Stamp Ordinance in the final appeal.

THE plaintiff as the executor of the last will of his father S. M. P. Pillai sued the defendant for the recovery of a certain sum of money on the footing that the defendant acted as the agent of S. M. P. Pillai in connection with the purchase and sale of tea and rubber coupons and that the sum claimed was the balance due by the defendant as such agent. The defendant denied that he acted as the agent of S. M. P. Pillai and further pleaded that he carried on business in partnership with the deceased and that the action could not be maintained in the absence of a written agreement as the capital exceeded Rs. 1,000. At the trial the learned District Judge held that the defendant was not entitled to lead evidence in proof of the alleged partnership. From this order an interlocutory appeal (S. C. No. 51) was filed. The trial proceeded and judgment was delivered in favour of the plaintiff. The defendant appealed from this as well (S. C. No. 286).

H. V. Perera, K.C. (with him S. Subramaniam), for plaintiff respondent.-There is a preliminary objection to the hearing of the interlocutory appeal. On the day the petition of appeal was filed, sufficient stamps were not supplied for the decree or order of the Supreme Court and the certificate in appeal, but they were tendered five days later. In accordance with the decision in Sinnapoo v. Theivanai and another [1 (1937) 39N.L.R. 121.] the appeal should be rejected.

The interlocutory appeal was filed against the order admitting certain evidence. The final appeal is also on the same point. If the interlocutory

appeal had not been filed, it could have been argued at the final appeal. Here the appellant had the choice of two modes of procedure, he had elected one and he cannot make use of the other.

[KEUNEMAN J.-Is not there a decision which states that the admissibility of evidence should not be the subject-matter of an interlocutory-appeal ?]

Yes, there is such a decision, but every order under the Civil Procedure Code is appealable.

[POYSER S.P.J.-Let this matter be stayed and let the final appeal be argued.]

F. A. Hayley, K.C. (with him E. F. N. Gratiaen and J. A. T. Perera), for the defendant, appellant.-In this case the appeal was filed on the first day and the necessary stamps were tendered within the appealable time. The rejection of the interlocutory appeal would not bar the hearing of the final appeal.

No agency had been pleaded in the plaint. No definite evidence had been given of the existence of an

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