Per era v. Don Simon
Present :Sansoni, J., and T. S. Fernando, J.
It. W. PERERA, Petitioner, and G. DON SIMON,
8. G. 268—Application for Restitutio in integrum or revision in D. C.
Restitutio in integrum—Instances -when relief will not be granted—Partition actions—–ZV egligence—Delay.
An application for restitutio in integrum cannot be made in a partition action
Nor would restitutio bo granted where there has been negligence or delayon the port of the peitioner.
Application for restitutio in integrum or revision.
Sir Lolita Rajapakse, Q.G., with W. P. N. de Silva, for the Plaintiff-Petitioner.
T. B. Dissanayake, for the Defendant-Respondent.
Gwr. adv. vult.
SANS ONI, J.—Perera. v. Don Simon
October 21, 1958. Sansoni, J.—
This is an application by the plaintiff in a partition action for reliefby way of restitutio in integrum or revision.
The plaintiff instituted the action in 1951 in respect of a land whichwas described in the schedule to the plaint as the divided portion markedlot A presently bearing assessment Nos. 116, 116/1 and 122 situatedat Layards Broadway, within specified boundaries and containing inextent 2 roods 24 79/100 perches. Upon a commission issued by theCourt preliminary plan No. 19 of 20th September 1952 was made bySurveyor K.. B. de Silva who reported that the land was surveyed on14th March 1952 as pointed out by the plaintiff. The Surveyor’s reportalso contained a detailed valuation of the 4 lots which were said to formthe subject matter of the action, and were shown in the plan bearingNos. 1, 2, 3 and 4.
The trial took place on 12th October 1953, when the plaintiff and thedefendant were represented by Counsel. Both parties accepted thecorrectness of the plan, and the plaintiff in giving evidence stated thathe sought to partition lots 1, 2, 3 and 4 depicted in the plan.
By his judgment delivered on 2nd November 1953, the trial judgedeclared the plaintiff entitled to 1/3 and the defendant to 2/3 share oflots 1, 2, 3 and 4. A decree for sale was entered in those terms on 1stJune 1955, after an appeal by the defendant to this Court had beendismissed.
The 4 lots, which had in the meantime been sub-divided into 9 lotsfor the purpose of the sale, were accordingly sold on 19th March 1958.The plaintiff purchased six of those lots and paid a deposit of 1/10 ofthe purchase price. When he sought to raise a loan from the SavingsBank by hypothecating premises No. 120 Bayards Broadway whichbelonged entirely to him, the Bank’s lawyers apparently discoveredthat a part of premises No. 120, to the extent of 4*48 perches, had beenincluded in lot No. 2 of the preliminary plan.
The plaintiff now seeks to exclude this extent of 4*48 perches from thecorpus in respect of which the sale was held under the decree for sale.The defendant has objected on the following grounds : (1) the land wassurveyed for the preliminary plan as pointed out by the plaintiff; (2)over 6 years have elapsed since that plan was made ; (3) the plaintiffshould have become aware of the mistake, if there was one, soon afterthe plan was made, and he has therefore been negligent in not havingtaken steps earlier to rectify the error ; (4) the sale has already beenheld and there is no guarantee that the land would fetch the sameprice if a re-sale were to take place.
It is fair to presume that the inclusion of a portion of premises No. 120in the corpus was the result of the plaintiff pointing out that portionto the surveyor. But even if he did not point out that portion, and thesurveyor wrongly included it as part of the subject matter of the action,it was the fault of the plaintiff and his lawyers that the paistake was
SANSONI, J.—Per era v. Don Simon
not detected before the decree was entered. They failed to exercisedue care when examining the plan, and thus omitted to discover whatthe Bank’s lawyers discovered after the lapse of some years.
Restitutio in integrum can be claimed on the ground of Justus error,which I understand to connote reasonable or excusable error. I amunable to see that such a ground exists in this case. It is, on the contrary,an example of damage arising from carelessness or negligence. I wouldrefer in this connection to Mapalathan v. Elayavan 1 and JDember v. AbdulHafeel a. In those cases it was held that restitutio would not be grantedwhere there has been negligence on the part of the applicant for relief.The case is all the worse if the error is due to the act of the plaintiffhimself, as would appear to be the case here.
The delay in seeking relief has raised another bar in the' plaintiff’s way.An application for restitutio has been held to be governed by Section 11of the Prescription Ordinance No. 22 of 1871 (now section 10 of Gap. 55) :see Silindu v. AJcura3. Over three years had elapsed between theentering of the decree and the filing of the present application, and itwas therefore filed too late.
It has also been held that an application for restitutio cannot be madein a partition action. This is another reason why the plaintiff’s applica-tion must fail: see Babun Appu v. Simon Appu 4 and Ibrahim v. Beebee 5.
The application for revision is misconceived since no question arisesregarding the legality or propriety of the decree or the regularity of theproceedings. The need for the plaintiff’s application is nothing moreor less than, the failure to present his case at the trial with due care. Onthe evidence placed before the trial judge the judgment given wasinevitable.
I would therefore dismiss the application with costs.
T. S. Fernando, J.—I agree.
Application dismissed. 1
1 (1939) 41 N. L. R. 115.3 (1907) 10 N. L. R. 193.
■ (1947) 49 N. L. R. 62.4 (1907) 11 N. D. R. 44.
* (1916) 19 N. L. R. 289.
A. K. W. PERERA, Petitioner, and G. DON SIMON , Respondent