Application Approach in Appeal and Leave to Appeal in Civil Cases

Case Summary: SC/CHC/APPEAL/4/2002

1. Parties Involved

• Petitioner-Appellant: The Maharaja Organisation Limited (Colombo, Sri Lanka).
• Respondent-Respondents:
  1. Viacom International Inc. (New York, USA).
  2. The Director General of Intellectual Property (Sri Lanka).

2. Facts of the Case

• The Director General of Intellectual Property issued an order on 28.05.1998, allowing the registration of Mark No. 61297 in favor of Viacom International Inc. despite objections raised by The Maharaja Organisation Limited.
• The Maharaja Organisation filed an appeal before the Commercial High Court (CHC) under Section 182 of the Code of Intellectual Property Act No. 52 of 1979.
• Viacom International Inc. raised a preliminary objection, arguing that the appeal should have been filed as a plaint instead of a petition of appeal.
• The Commercial High Court (CHC) upheld the preliminary objection on 14.12.2001, rejecting the petition of appeal but allowing the petitioner to refile the case as a plaint.
• Instead of filing a plaint, The Maharaja Organisation filed a final appeal to the Supreme Court under Section 754(1) and (5) of the Civil Procedure Code and Sections 5 and 6 of the High Court of the Provinces (Special Provisions) Act No. 10 of 1996.

3. Legal Issues

1. Was the appeal filed in the correct manner?
   • Should the petitioner have filed a plaint instead of a petition of appeal in the CHC?
2. Did the Supreme Court have jurisdiction to entertain the appeal as a final appeal?
   • Should the petitioner have filed a leave to appeal application instead of a final appeal?

4. Judgment

• The Supreme Court referred to the Full Bench ruling in Chettiar v. Chettiar (2011), which clarified that the correct test to determine whether an appeal is final or interlocutory is the “application approach.”
• The Supreme Court ruled that:
  • The Commercial High Court’s decision was interlocutory, not final.
  • The petitioner should have filed a leave to appeal application instead of a final appeal.
  • Since the petitioner failed to do so, the appeal was misconceived in law and could not be entertained.
• The Supreme Court dismissed the appeal with costs.

5. Conclusion

• The preliminary objection raised by Viacom International Inc. was upheld, and the appeal was dismissed.
• The court emphasized that procedural rules are not mere technicalities but go to the root of the case.
• The petitioner lost the case due to incorrect filing of the appeal, reinforcing the importance of procedural correctness in appeals.