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DE SILVA T.A.K. v. HIRDAMANI LTD.
NLR55V73
1953 Present: Nagalingam
A.C.J., Gratiaen J. and Weerasooriya J.
T. A. K. DE SILVA, Petitioner, and HIRDARMANI LTD.,
Respondent
S. C. 175-Application for conditional leave to appeal to the Privy
Council in S. C. 94, D. C. Colombo 21772
Privy Council-Application for
conditional leave to appeal-Valuation of " matter in dispute on the appeal
"-Notice to opposite party-Grounds of appeal need not be Specified-Rules 1 and 2
of Schedule to Appeals (Privy Council) Ordinance.
Plaintiff sought to recover from defendant a sum of Rs. 2,250 as arrears of
payments due to him under an agreement whereby the defendant was allegedly
obliged to pay the plaintiff a monthly allowance of Rs. 150 for the rest of
plaintiff's life. He further claimed the additional sum that would become due,
under the agreement, from date of action till date of decree and for legal
interest. The trial Court entered judgment in favour of plaintiff for a total
sum of less than Rs. 5,000. the defendant appealed, and his appeal was allowed.
The plaintiff, thereupon applied for conditional leave to appeal to the Queen in
Council.
Held, that, for the purpose of determining the value of the matter in dispute on
the appeal to the Queen in Council, (1) the amounts that became payable to the
plaintiff under the alleged agreement subsequent to the date of the decree of
the trial Court and up to the date when the Supreme Court pronounced judgment
should not be taken into consideration, (2) although the amount at stake in the
action was less than Rs. 5,000, representing only part of the instalments that
had fallen due up to the date of decree of the trial Court, the action itself
raised the entire question of the existence and1 validity of the contract
between the parties, and a settlement of that question one way or the other
affected the rights and liabilities of parties beyond the sum of Rs. 5,000 ; the
plaintiff was therefore entitled, under the second part of Rule 1 (a) of the
Schedule to the Appeals (Privy Council) Ordinance, to appeal as of right to the
Queen in Council.
Held further, that the notice given by an appellant to the opposite party in
accordance with Rule 2 of the Schedule to the Appeals (Privy Council) Ordinance
need not specify the particular grounds upon which it is intended to make the
application for conditional leave.
Kasipillai v. Nagalinga Kurukkal (1952) 54 N. L. R. 183, overruled.
APPLICATION
for conditional leave to appeal to the Privy Council. It was referred to a Bench
of three Judges for determination.
H. W. Jayewardene, with D. R. P. Goonetilleke, for the defendant
respon-dent.-There are two objections to the present application. Firstly, the
matter in dispute on the appeal is not of the value of Rs. 5,000 and, secondly,
the notice given of the intended application is bad in law.
The plaintiff petitioner has valued the action at Rs. 2,250. He must place a
value on his action when he comes into Court. Once he has so valued it he cannot
subsequently change it to bring him within Rule 1 (a) of the Schedule to the
Appeals (Privy Council) Ordinance.
The petitioner had to place
evidence necessary for assessing the value of the right. Up to date he has made
no attempt to place before Court any material to value his right. See Appuhamy
v. Victor Corea1[(1900) 1 Browne 165.], Baba-pulle v. Rajaratnam2[(1900) 1
Browne 304], Pemaratne Thero v. Indasara Thero3[(1938) 16 Times 43. ]. The value
of the right is the market value-of which there is no evidence. The Court of
Appeal cannot set out on its own to place any value- Ahamadu Lebbe v. Abdul
Coder 4[(1931) 33 N. L. R. 337.]; Sokkalal Ram Salt v. Nadar 5[(1939) 40 N. L.
R. 553.] ; Subbiah Pillai v. Fernando6[ (1950) 52 N. L. R. 211]. The proper test
has been laid in the English cases of Allan v. Pratt7[(1888) 13 A. C. 780] and
Macfarlane Leclaire 8[(1862) 15 E. R. 462.]. These principles of valuation have
bee
