This is a case about a property partition lawsuit. The original 4th defendant filed a claim, but none of the parties except the plaintiff showed up in court on the trial date. The court then ruled in favour of the plaintiff. Later, the 4th defendant tried to apply for special leave to argue his case, citing Partition Law, but his request was rejected by the District Court. The 4th defendant appealed this rejection to the Court of Appeal, but the Court of 
Appeal dismissed the appeal because it considered the rejection an order, not a judgment. This column is about the appeal in the Supreme Court over the Court of Appeal’s decision. (Ranjit v. Kusumawathie and Others – SLR – 232, Vol 3 of 1998 [1998] LKSC 6; (1998) 3 Sri LR 232 (20 August 1998).)
The law around appeals in partition cases (section 67 of the Partition Law, No. 21 of 1977) states that any judgment, decree, or order can be appealed. The law also defines what a judgment and an order are. An appeal can be made against a judgment without needing permission from the Court of Appeal (leave to appeal), but permission is required to appeal an order.
In this case, the disagreement is whether the rejection of the 4th defendant’s application is a judgment or an order. The appellant, who is the 4th defendant’s successor, argues that it is a judgment because it ends the 4th defendant’s chance to argue his claim.
Final judgement
This part of the judgment dives into the legal debate about what constitutes a “final judgment” or “order” under Sri Lankan law, specifically referencing subsection 754 (5) of the Civil Procedure Code (CPC).
Courts have struggled to determine the difference between a final judgment and a regular order, especially in the context of appeals. This issue has arisen in the operation of several past laws, including the repealed Appeals (Privy Council) Ordinance and the Courts Ordinance. The current challenge comes from Section 754 (5) of the CPC, which uses the terms “judgment” and “order” without clear distinction.
In past cases, Sri Lankan courts often referred to how British courts interpreted similar terms such as “final order” and “interlocutory order.”There have been two main approaches in British courts:
The Order Approach focuses on the nature of the order itself. If the order completely resolves the legal issue at hand, it’s considered final. (Example: Shubrook v. Tufnell. ((1882) 9 QBD 621; (1881-8) All ER 180.)
The Application Approach focuses on the purpose of the application or proceeding that led to the order. If a successful outcome on that application would definitively settle the case, then the resulting order is final. (Example: Salaman v. Warner (( 1891) 1 QB 734).
Sri Lankan courts haven’t consistently followed one approach. Some judges, such as Sharvananda, J., adopted the order approach. Others, following decisions in the British courts by luminaries such as Lord Denning, favoured the application approach.
Bozson v. Altrincham Urban District Council ((1903) 1 KB 547) was cited in the judgment in the case under review. This case from the Court of Appeal highlights the “order approach” in determining finality. Here, the judges (Earl of Halsbury, Lord Alverstone, and Jeune) focused on the nature of the order itself, not the application that led to it. The judgment mentions that Sharvananda, J. followed this approach in a cited Sri Lankan case (Siriwardene v. Air Ceylon. ((1984) (1) SLLR 286.)
Salter Rex & Co. v. Gosh ((1971) 2 All ER 865 and 866) which has Lord Denning, MR, explaining the issue, was also cited in judgement.
Nature of the order
In this case Lord Denning refers to the confusion around “final” and “interlocutory” orders, mentioning different tests used in the past. He contrasts the “nature of the application” test used in Standard Discount Co. v. La Grange (1877 3 CPD 67) and Salaman v. Warner (( 1891) 1 QB 734)with the “nature of the order” test applied in Bozson v. Altrincham Urban District Council ((1903) 1 KB 547.) Lord Denning suggests Lord Esher’s application-based approach might be more practical based on experience.
The judgement concludes by mentioning that Lord Denning’s approach, focusing on the application rather than the order itself, seems to be more practical. The Judge writing the judgement uses the example of an appeal from a rejected request for a new trial. Since a successful new trial application wouldn’t be final, the rejection of such an application is also considered not final.
The judge acknowledges the confusion surrounding “final” and “interlocutory” orders, and suggests lawyers rely on past court decisions for guidance in similar situations.
Focusing on the specific case of the 4th defendant appealing the rejection of their application to argue their claim in the property partition case, the Supreme Court judgment uses Lord Esher’s test from British law.
This test looks at the nature of the application that led to the order, not the order itself. In this case, the 4th defendant’s application was an attempt to overcome the initial hurdle of explaining their absence and demonstrating a potential claim. Even if they had won this initial round, they would still face a trial to prove their claim definitively.
Following Lord Esher’s view, the judge concludes that the rejected application wouldn’t have settled the entire case either way. Therefore, the rejection order is not considered a final judgment under the law. As a result, the appeal was dismissed. However, considering the circumstances, the court avoided imposing any costs on the appellant.
