Ruben Peiris V. Dassenaike

1962 Present : Basnayake, C. J., H. N. G. Fernando, J.,
and Sinnetamby, J.

RUBEN PEIRIS, Petitioner, and DASSENAIKE, Respondent

S. C. 255-Application for Conditional Leave to appeal to Privy Council
 in S. C. 57/D. C. Colombo, 12380/S

    Privy Council-Appeal to Supreme Court-Rejection on ground of abatement-Incapacity of appellant to apply for conditional leave to appeal to Privy Council- Civil Appellate Rules, 1938, Rules 2 (1), 4 (2)-Appeals (Privy Council) Ordinance, ss. 2, 3, Schedule, Rule 1-Supreme Court Appeals (Special Provision) Act No. 4 of 1950.

    Where an appeal to the Supreme Court, which was lodged before the Supreme Court Appeals (Special Provision) Act No. 4 of 1960 was enacted, was rejected on the ground that it had abated by operation of Rule 4 (2) of the Civil Appellate Rules, 1938-

    Held, that the appellant was not entitled to make an application to the Supreme Court for conditional leave to appeal to the Privy Council.

    APPLICATION for conditional leave to appeal to the Privy Council.

     H. V. Perera, Q. C., with S. Sharvananda, for Petitioner-Appellant.

    E. B. Wikramanayake, Q. C., with H. A. Koattegoda, G. T. Samerawickreme and B. Bandaranayake, for Plaintiff-Respondent.

Cur. adv. vult.

March 16, 1962. BASNAYAKE, C. J.-

    The question that arises for decision on this application for leave to appeal to the Privy Council is whether such an application lies in the instant case.

    The petitioner sought to appeal to this Court from the judgment of the District Court; but he failed to comply with the requirements of Rule 2 (1) of the Civil Appellate Rules 1938, and on objection taken by counsel the appeal was rejected on 17th May 1960 as it was deemed to have abated by operation of Rule 4 of those Rules. The Appeals (Privy Council) Ordinance provides for an appeal to the Privy Council against judgments and orders of the Supreme Court (s.3). The expression " judgment " is used in the Ordinance in the sense of " a decree, order, sentence or decision " (s.2). An appeal lies-

    "(a) as of right, from any final judgment of the Court, where the matter in dispute on the appeal amounts to or is of the value of five thousand rupees or upwards, or where the appeal involves directly or indirectly some claim or question to or respecting property or some civil right amounting to or of the value of five thousand rupees or upwards ; and

    (b) at the discretion of the Court, from any other judgment of the Court, whether final or interlocutory, if, in the opinion of the Court, the question involved in the appeal is one which, by reason of its great general or public importance or otherwise, ought to be submitted to His Majesty in Council for decision. " (Rule 1-Schedule).

    In the instant case there was no appeal before this Court as it had abated by operation of law. The effect of abatement in legal procedure is thus stated in Sweet's Law Dictionary-

    "In procedure, abatement is where an action is put an end to and destroyed by the death of one of the parties, or some other event which makes it impossible to continue the action. "

    Bouvier's Law Dictionary in setting out the distinction between abatement in Chancery Practice and in law states-

    "It differs from abatement at law in this ; that in the latter, the action is entirely dead and cannot be revived ; but in the former the right to proceed is merely suspended, and may be revived by a supplemental bill in the nature of a bill of revivor. "

    What we have here is an abatement at law.

    Although it is an appeal and not an action in the Court of first instance the consequence of abatement is the same whether it be an appeal or an action and the appeal if ever it was in existence came to an end on abatement. As this appeal was lodged long before the Supreme Court Appeals (Special Provision) Act No. 4 of 1960, the record of the case should not

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