1960 Present : Weerasooriya, J., and T. S. Fernando, J.

FERNANDO, Petitioner, and SAMARANAYAKE, Respondent

S. C. 266-Application for conditional leave to appeal to the
Privy Council in S. C. 523/D. O. Colombo 39558/M
 

Privy Council-Appeal to Supreme Court-Rejection on ground of abatement for failure to apply duly for typewritten copie8-Right of appeal to Privy Council" Final judgment "-Civil Appellate Rule8, 1938, Rule8 2 (1), 4 (a)-Appeals (Privy Council) Ordinance (Cap. 86), Schedule, Rule8 1 (a), 3 (a)-Civil Procedure Code, 8. 766 (3).

Where an appeal to the Supreme Court from a District Court judgment finally disposing of the rights of the parties is rejected on the ground that it has abated under Rule 4 (a) of the Civil Appellate Rules, 1938, by reason of the failure of the appellant to apply for typewritten copies, the order of the Supreme Court rejecting the appeal is a final judgment within the meaning of Rule 1 (a) of the Schedule to the Appeals (Privy Council) Ordinance.

The Civil Appellate Rules, 1938, contain no provision, corresponding to section 756 (3) of the Civil Procedure Code, for the granting of relief to an appellant whose appeal has abated under Rule 4 (a). But where a Court of first instance has declared that an appeal has abated under that Rule, the correct procedure for an appellant, who does not question the legality or propriety of the order, but seeks to obtain relief from the abatement of his appeal, is to make an application to the Supreme Court in revision. Where, however, he questions the legality or propriety of the order, his remedy is by way of appeal.

APPLICATION for conditional leave to appeal to the Privy Council.

H. V. Perera, Q. C., with H. W. Jayewardene, Q. C., and K. N. Choksy, for defendant-appellant- petitioner.

E. B. Vannitamby, with H. Ismail, for plaintiff-respondent.

cur. adv. vult.

November 23, 1960. WEERASOORIYA, J.

This application for conditional leave to appeal to Her Majesty in Council was first argued before us on the 2nd September, 1960, when we allowed leave to appeal subject to the usual conditions. Before, however, the order allowing leave was, signed by us, and with the concurrence of my brother, I had the matter listed for further argument. We are indebted to learned counsel for the assistance given us at the hearing which took place subsequently and at the conclusion of which we reserved judgment.

The position, shortly, is that the petitioner, who is the defendant, filed an appeal to this Court from the judgment and. decree of the District Court of Colombo in D. C. Case No. 39558/M condemning him to pay a

sum of Rs. 75,00°/- as damages and costs of suit to the plaintiff respondent. When the appeal came up for hearing, counsel for the respondent took a preliminary objection to the appeal being entertained as the petitioner had failed to comply with the requirements of Rule 2 (I} of the Civil Appellate Rules, 1938. Under Rule 4 (a) of those Rules an appeal shall be deemed to have abated where the requirements of Rule 2 (1) have not been complied with. The preliminary objection was and the appeal rejected by this Court, presumably on the ground that it had abated in terms of Rule 4 (a). It is from this order that the petitioner now seeks to appeal to Her Majesty in Council.

Two submissions were urged by counsel for the respondent against conditional leave to appeal being granted. One of them was that the order rejecting the appeal is not a " final judgment" within the meaning of that expression in Rule 1 (a) in the Schedule to The Appeals (Privy Council) Ordinance (Cap. 85). The other was that the order is not one made in a civil suit or action in the Supreme Court in terms of section 3. of the same Ordinance. In support of these submissions Mr. Vannitamby referred us to the case of Palaniappa Chetty et al. v. Mercantile Bank et al [1 (1941) 43 N. L. R. 127. ] where, too, the app