1955 Present : Basnayake, A.C.J., and Gratiaen, J.

H. E. TENNEKONE (Commissioner for the Registration of Indian
and Pakistani Residents), Petitioner, and P. K. DURAISWAMY,
Respondent

S. C. 150-In the matter of an Application for Conditional Leave to Appeal
to the Privy Council in re an Application made under section 7 of the Indian
and Pakistani Residents (Citizenship) Act, No. 3 of 1949

Privy Council-Conditional leave to appeal-Indian and Pakistani Residents (Citizenship) Act, No. 3 of 1949, s. 15-Judgment of Supreme Court-Right of appeal therefrom-" Civil suit or action "-Appeals (Privy Council) Ordinance (Cap. 85), s. 3, Rule 1 (b) of Schedule.

A judgment given in an appeal under section 15 of the Indian and Pakistani Residents (Citizenship) Act is a judgment in a " civil suit or action in the Supreme Court" within the meaning of section 3 of the Appeals (Privy Council) Ordinance.

APPLICATION for conditional leave to appeal to the Privy Council.

M. Tiruchelvam, Deputy Solicitor-General, with V. Tennekoon, Crown Counsel, for the Respondent-Petitioner.

Walter Jayawardena, with S. P. Amerasingham, for the Appellant-Respondent.

Cur. adv. vult.

December 20, 1955. BASNAYAKE, A.C.J.-

At the conclusion of the argument of this application for conditional leave to appeal to the Privy Council, we made order allowing the application and reserved our reasons to be delivered on a later date.

It is common ground that the question involved in the appeal is one which, by reason of its great general or public importance, ought to be submitted to Her Majesty the Queen in Council for decision.

The only question in dispute was whether an appeal under section 15 of the Indian and Pakistani Residents (Citizenship) Act, No. 3 of 1949 (hereinafter referred to as the Act) comes within the ambit of section 3 of the Appeals (Privy Council) Ordinance (hereinafter referred to as the Ordinance). That section reads :

" From and after the commencement of this Ordinance the right of parties to civil suits or actions in the Supreme Court to appeal to His Majesty in Council against the judgments and orders of such Court shall be subject to and regulated by-

(a) the limitations and conditions prescribed by the Rules set out in the Schedule, or by such other Rules as may from time to time be made by His Majesty in Council; and

(b) such general Rules and Orders of Court as the Judges of the Supreme Court may from time to time make in exercise of any power conferred upon them by any enactment for the time being in force ".

Learned Counsel for the respondent opposed the application on the ground that the judgment from which the applicant sought to appeal was not a judgment in a " civil suit or action in the Supreme Court". He relied on certain decisions of this Court in which applications for leave to appeal were refused. I shall presently refer to those decisions. But before I do so I think I should refer to the relevant statute law by which the right of appeal to the Privy Council has been granted and regulated since its grant.

The right of appeal to the Privy Council was granted by section 52 of the Charter of Justice of 1833 (hereinafter referred to as the Charter), the relevant portion of which reads as follows :-

" And we do further grant, ordain, direct and appoint that it shall be lawful for any Person or Persons being a Party or Parties to any Civil Suit or Action depending in the said Supreme Court to appeal to Us, Our Heirs and Successors in Our or Their Privy Council against any final Judgment, Decree, or Sentence, or against any Rule or Order made in any such Civil Suit or Action, and having the effect of a final or definitive Sentence ".

The exercise of that right was at first regulated by the Charter itself and later, till their repeal by the Ordinance, by section 42 of the Courts Ordinance and section 779 of the Civil Procedure Code. Finally in 1909, when the Or