Vander Poorten V. Vander Poorten Et Al.,

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145

1949 Present : Wijeyewardene C.J. and Gunasekera J.

VANDER POORTEN, Applicant, and VANDER POORTEN
et al., Respondents

S, C. 172-APPLICATION FOR CONDITIONAL LEAVE TO APPEAL TO THE PRIVY COUNCIL IN S. C. 496, D. C. KANDY, 1,656/M.E-

Privy Council-Application for leave to appeal-Computation of amount in respect of which appeal. lies as of right-Ground of appeal stated in notice to opposite party-Can it be altered subsequently ?-Notice given by attorney of applicant-Is it valid ?-Appeals (Privy Council) Ordinance (Cap. 85), Schedule, Rules 1 and 2-Appellate Procedure (Privy Council) Order, 1921, Rules 5, 6 and 19.

Plaintiffs, as beneficiaries under a last will, obtained judgment against , the defendant for a sum of Rs. 1,000 as their share of a fund of Rs. 10,000 Defendant, however, sought to appeal to the Privy Council as of right on the ground that in view of the decree entered against him he was exposed to the risk of claims being made against him by the other beneficiaries trying to recover their shares of the Rs. 10,000.

Held, that the matter in dispute on the appeal did not involve a claim of the value of Rs. 5,000 and the defendant was not entitled to leave to appeal.

Obiter : An applicant for conditional leave to appeal to the Privy Council is not entitled to alter the ground on which he asks for leave to appeal after the lapse of fourteen days from the date of judgment.

Quaere, whether notice of application for leave to appeal given to the opposite party by a duly appointed attorney of the applicant is valid.

THIS was an application for conditional leave to appeal to the Privy Council from a judgment of the Supreme Court.

N. K. Choksy, K.C., with M. P. Spencer, for defendant applicant.

N. E. Weerasooria, K.C., with G. T. Samarawickreme, for defendants respondents.

Cur. adv. vult.

 November 7, 1949. WIJEYEWARDENE C.J.-

This is an application filed by the defendant on April 9, 1949, under Rule 2 in the Schedule to the Appeals (Privy Council) Ordinance for leave to appeal to the Privy Council from a final judgment of this Court delivered on March 11, 1949. The application states : -

(i) " that the matter in dispute on the appeal amounts to or is of the value of Rs. 5,000 or upwards " ;

(ii) that the applicant " by notice dated March 24, 1949, duly intimated to the plaintiffs-respondents his intention to so appeal ....".

The plaintiff objected to the application on the following grounds : -

 (i) that the notice pleaded in the application was bad ;-

 (ii) that the matter in dispute was below Rs. 5,000.

Before dealing with the objections, I shall give a brief statement of the facts of the case. The first and second plaintiffs who are minors were represented in this action by their mother, the .third plaintiff, as next friend. The minors are beneficiaries in respect of l/20th share, each, in. the residuary estate of A. J. Vander Poorten who died leaving a last will which was proved in D. C. Kandy (Testy.) 50. Probate was granted to the defendant and two other executors. The plaintiffs asked for a decree in this action against the defendant personally directing him " to pay into Court in this action for the benefit of the estate of the said A. J. Vander Poorten a sum of Rs. 10,000 " being the proceeds of a cheque misappropriated by him or, in the alternative, to pay to-the first and second plaintiffs Rs. 1,000 being their l/10th share of Rs. 10,000. In the course of the action, the plaintiffs restricted their claim to an order on the defendant to pay them Rs. 1,000. After trial the District Judge gave them judgment for Rs. 1,000. The defendant appealed against that judgment and the appeal was dismissed by the Supreme Court.

I proceed now to deal with the objections raised by the respondents' Counsel.

The notices referred to in the application were

(i) a telegram addressed to Mr. Kolugala, Proctor for the plaintiffs

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