1961 Present: H. N. G. Fernando, J. and L. B. de Silva, J.

A. K. DAVID, Appellant, and M. A. M. M. ABDUL CADER,
Respondent

S. C. 180/1961-Application for Conditional Leave to appeal to the
Privy Council in S. C. 234/D. C. Puttalam, 6327

Privy Council-Right of appeal thereto-Dismissal of action on the ground that Court has no jurisdiction to entertain it-" Final order "-Appeals to the Privy Council Rules.

A judgment dismissing an action on the ground that the Court has no jurisdiction to entertain it is a final judgment within the meaning of the Appeals to the Privy Council Rules, unless there is a further explicit or implicit determination that some other authority has the jurisdiction to entertain the plaintiff's claim.

Plaintiff sued the Chairman of an Urban Council, in his individual capacity, for the recovery of damages sustained by reason of the alleged malicious refusal of the defendant to issue to the plaintiff a licence under the Public Performances Ordinance. The Supreme Court, on appeal, decided that the proper remedy, if any, of the plaintiff was by way of an application for Mandamus calling upon the proper authority to issue the licence and not by way of an ordinary action in a civil court.

Held, that the decree dismissing the action prevented the plaintiff from asserting his alleged claim as against the defendant as an individual. It was, accordingly, a final order for the purpose of the Appeals to the Privy Council Rules.

APPLICATION for conditional leave to appeal to the Privy Council.

            C. Ranganathan, with Nimal Senanayake, for plaintiff-appellant.

            H. V. Perera, Q.C., with M. T. M. Sivardeen and M. A. M. Isaki, for defendant-respondent.

Cur. adv. vult.

December 15, 1961. H. N. G. FERNANDO, J.-

This is an application for conditional leave to appeal to Her Majesty -in-Council against the judgment of this court delivered on 24th March 1961, on an appeal to the court from a judgment and decree of the District Judge of Puttalam. The cause of action stated in the plaint was for damages alleged to have been sustained by the plaintiff by reason of the alleged malicious refusal of the defendant to issue to the plaintiff a licence under the Public Performances Ordinance (Cap. 134) authorising the use of the plaintiff's cinema for the presentation of " public performances". On a preliminary issue, namely the question whether the plaint disclosed a cause of action against the defendant, the learned District Judge held that if the refusal to grant the licence had been malicious, a cause of action for damages would enure to the plaintiff. But

in his view such an action would lie, not personally against the individual who had refused the licence, but rather against the person in his capacity as the authority empowered by law to grant the licence, that is, as the Chairman of the Urban Council of Puttalam. The District Judge dismissed the action on the ground that the action had been brought against the defendant personally and not in his capacity as the Chairman of the Council.

In the Supreme Court the dismissal was affirmed but on the different ground that the proper remedy if any is by way of an application to this court for a Mandamus calling upon the proper authority to issue the licence and not by way of an ordinary action in a civil court.

Assuming that the plaintiff's action was properly dismissed, whether upon the ground stated in the District Court or alternatively that stated in the judgment of this court, it seems clear that the result of the order dismissing the action is that the question whether in the circumstances alleged in the plaint the plaintiff may recover damages on the ground that the licence was unlawfully refused has been finally terminated. The plaintiff chose to assert the existence of a right in him to sue the defendant as an individual for damages alleged to have been suffered by an allege