Sokkalal Ram Sait V. Nadar Et Al.,

1939 Present: Wijeyewardene and Nihill JJ.

SOKKALAL RAM SAIT v. NADAR et al.

116-D. C. (Inty.) Colombo, 6,138.

Privy Council-Conditional leave to appeal-Value of subject-matter in dispute-Amount of costs cannot be added to value-Under-valuation to evade stamp duty-The Appeals (Privy Council) Ordinance, No. 31 of 1909, Rule 1 (a), Cap. 85.

The costs which an unsuccessful party is ordered to pay by the Supreme Court cannot be reckoned in valuing the matter in dispute for the purpose of Rule 1 (a) of the Privy Council Appeal Rules.

Where the subject-matter of an action is deliberately under-valued for the purpose of evading the stamp duty the party will not be permitted to give a different valuation to bring himself within the Rule.

de Alwis v. Appuhamy (30 N. L. R. 421) applied.

THE applicant sued the respondents, asking for an injunction J. restraining them from infringing his trade marks and from passing off goods not of the applicant as and for goods of the applicant; for an account of the profits and for delivery of all the beedie (cigars) in the respondents' possession. The applicant valued the subject-matter of the action at Rs. 1,000.

The District Judge gave judgment granting an injunction to the . applicant and ordering the respondents to deliver the beedies in their possession.
 
In appeal, the Supreme Court set aside the judgment of the District Judge and entered decree, dismissing the applicant's action with costs, directing the Registrar of Trade Marks to proceed with the application for registration of respondents' trade marks and granting Rs. 300 as damages.

The applicant applied for conditional leave to appeal to the Privy Council.

N. E. Weerasooria, K. C. (with him N. Nadarajah and K. S: Aiyar), for applicant. -The value of the matter in dispute is directly or indirectly more than Rs. 5,000. Our reasons for saying so are set out in our affidavit. It is true that, originally, the subject-matter of the action was valued at Rs. 1,000, but that valuation was made bona fide for purposes of stamping, in accordance with the provisions of section 48 of the Trade Marks Ordinance (Chapter 121), and does not represent the true value. The value of the action is, in reality, much more and can be taken into account on the present occasion. (Baboo Roy v. K. Singh et al1; Hollandia Anglo-Dutch Milk & Food Co. v. Anglo-Swiss Condensed Milk Co. 2).
 
Damages should be included in computing the value of an action (Maitripala v. Koys 3).

Rule 1 (a) of the schedule to the Appeals (Privy Council) Ordinance (Chapter 85) speaks of ?the matter in dispute on the appeal". This being so, the costs which we have to pay under the Supreme Court decree

1 (1874) L. R. 1 Indian Appeals 317.
2 (1923) 5 C. L. Rec. 15.
3 (1939) 14 C. L. W. 112.

and which has been taxed at over Rs. 9,000 should be included. On this short point the present application can be decided. It is possible that the Privy Council may delete the order for costs.

H. V. Perera, K. C. (with him N. K. Choksy and C. C. Rasa Ratnam), for defendants, respondents. -Costs cannot and should not be taken into account (Chowdry v. Chowdry 1; Doss v. Doss et al. 2). Apart from these two cases, the wording of Rule 1 (a) refers to ?property or civil right". The words ?matter in dispute on the appeal? refer to the substantive matter in dispute, and the question of costs is merely incidental. The order for costs cannot be said to relate to any property or civil right. Costs of the suit are no part of the matter in dispute (Bentwick on Privy Council Practice (1926 ed.), p. 144).

The subject-matter of the suit was valued at Rs. 1,000 in the plaint. That valuation cannot be changed at this stage (Appuhamy v. Corea3; Sathasiva Kurukkal v. Subramaniam Kurukkal4; de Alwis v. Appuhamy5; Ahamadu Lebbe et al. v. Abdul Cader et al. 6).

N. E. Weerasooria, K. C, in reply. -de Alwis v. Appuhamy (su

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