Vethavanam ». Retnam
1958Present: K. D. de Silva, J., and T. S. Fernando, J.K.VETHAVANAM and two others, Appellants, and J. RETNAM,
S. G. 300—D. G. Batticaloa, 1,005/L
Partition action•—Rejection of plaint after acceptance—Legality—Partition Act,No. 16 of 1951, ss. 4, 7, 8, 70—Civil Procedure Code, e. 46.
Where, in an action instituted under the Partition Act, Ho. 16 of 1951, theplaint, which had already been accepted by the Court, was subsequentlyrejected on the ground of non-disclosure of a party—
Held, that once a plaint is accepted and is not ex fade defective, the Courthas no power to reject it subsequently under section 7, read with section 4, ofthe Partition Act, Ho. 16 of 1951.
1 (1889) 9 S. C. C. 32.
(1889) 1 S. C. R. 73.
K. D. DE SILVA, J.—Velhavanam «. Retnam
xVPPEAL from an order of the District Court, Battiealoa.
Walter Jayaimrdene, with F. X. J. Rasanayagam, for the plaintiffs-appellants.
0. Ranganathan, with M. Shanmugalingam, for the defendant-respondent.
Our. adv. vult.
April 2, 1958. K. D. de Silva, J.—
This is a partition action instituted under the provisions of the PartitionAct, No. 16 of 1951. The plaint was accepted by the Court on June 28,1954, and thereafter the various steps required by the provisions of theAct were complied with and the case came up for trial on March 20,1956.
In the plaint the plaintiffs who are three in number allotted to them-selves 7/8th shares of the land while the balance |th was given to thedefendant. The defendant raised two points of contest at the trial.The 1st was in regard to the identity of the corpus to be partitioned andthe other was the claim set up by him to the entire land based on a pres-criptive title. According to the plaintifls their mother Parapathipillaiwas entitled to an undivided Jth share. In the pleadings it was statedthat on the death of Parapathipillai her |th share devolved on her threechildren who are the plaintiffs. At the trial the 1st plaintiff in provingthe pedigree stated in evidence-in-chief that on the death of his motherParapathipillai her share devolved not only on her three children but thathalf of her rights was inherited by her husband who was alive. There-upon the counsel for the plaintiffs moved to amend the plaint by addingthe plaintiffs’ father as a party to the action. This was opposed by thecounsel for the defendant and the learned District Judge by his orderdated March 23, 1956, held that the plaintiffs had failed to comply withthe provisions of section 4 of the Partition Act and proceeded to rejectthe plaint with costs. This appeal is from that order.
Section 7 of the Act enacts that where a plaintiff fails to comply withthe requirements of sections 4, 5 or 6 the Court may—
return the plaint so that the plaintiff may, then and there or within
such time as may be fixed by the court, comply with thoserequirements, or
reject the plaint.
The section also provides that nothing contained therein shall affect theright of the Court to reject the plaint on any ground specified in section 46of the Civil Procedure Code. Section 8 sets out the procedure to be fol-lowed by the Court on the acceptance of the plaint. The question fordecision which arises on this appeal is whether the Court is entitled torejeot a plaint, which has already been accepted by it, on the ground of
K. D. DE SILVA, J.—Vethavanam v. Betnam
non-compliance with the provisions of section 4. The only section whichmakes provision for rejecting a plaint is section 7. Section 4 enacts thata plaint shall contain the particulars set out in clauses a, b, c and d ofthat section. The clauses which are relevant to this appeal are c and d.
Clause c reads :—
“ The names and addresses of all persons who are entitled or claimto be entitled to any right, share, or interest to, of or in that land or toany improvements made or effected on or to that land, and the natureand extent of any such right, share, interest or improvements, so faras such particulars are known to the plaintiff or can lie ascertained byhim. ”
Clause (d) requires that a pedigree showing the devolution of title shouldbe appended to the plaint. Admittedly, the name of the plaintiffs’father was not disclosed either in the plaint or in the pedigree filed there-with. It cannot reasonably be suggested that the plaintiffs were notaware that their father was a co-owner of this land.
It was contended on behalf of the plaintiffs that the Court is notentitled to reject a plaint once it has been accepted. Although the Dis-trict Judge in his order does not refer to the section under which homade the order rejecting the plaint the counsel for the respondent con-ceded that this order was made under section 7. His contention wasthat the Court was entitled to reject a plaint under that section at anystage of the proceedings. In support of his argument he pointed out thatat the stage the plaint is presented to Court for acceptance the Courthas no material before it to reject the plaint on the ground of non-disclosure of parties. I agree with that submission to a certain extent.However, there may be instances where it is apparent ex fade from theplaint that the names of all the parties who are entitled to shares of theland are not set out. For example, if it was shown in the plaint thatParapathipillai, the plaintiffs’ mother was entitled to Jth share but therewas no averment as to the devolution of that share the Court has materialbefore it anterior to the acceptance of the plaint to hold that the provi-sions of section 4 (c) have not been complied with and reject the plaintunder section 7. But once it was disclosed in the plaint that Parapathi-pillai’s share devolved on her three children only, the court, it is true,has ,no material before it to reject the plaint before accepting it, on theground that Parapathipillai’s husband has not been made a party.However, it is incorrect, as indicated earlier, to say that in no case is the'Court in a position to ascertain, before the acceptance of the plaint, thata necessary party has not been joined.
The scheme of the Act and the sequence of sections 7 and 8 wouldappear to indicate that the provisions of section 7 are to operate onlybefore the acceptance of the plaint. There are other sections in the Actwhich confer the power on the Court to penalize a plaintiff who fails tocomply with certain requirements other than those set out in sections 4,5 and 6. However, the noncompliance with those provisions does notempower the Court to reject the plaint.
K. D. DE SILVA, J.—Vethavanonl v. Retnam
It Is true that section 7 of the Act does not specifically restrict the powerof the Court to reject the plaint to a stage before the acceptance of theplaint. But the sequence of this section and the sections which precedeand follow it does show that the rejection of the plaint must be beforeits acceptance. This sequence illustrates the orderly evolution of apartition action.
The second proviso to section 46 of the Civil Procedure Code is ana-logous to section 7 (b) of the Partition Act and that proviso sets outcircumstances under which a plaint is to be rejected. Section 46 ofthe Civil Procedure Code has been interpreted in several cases. InFernando v. Soysa1 it was held that once a plaint is accepted by a Courtit cannot be returned for amendment. That decision was followed inMohideen v. Gnanaprakasan1 2 3. In Annapillai v. Sinnakunchi3 Garvin J.while citing those decisions with approval observed :—
Once the Court has accepted the plaint and directed it to be filedthe provisions of section 46 can no longer be resorted to. ”
But there is another series of cases dealing with an exception to theprinciple enunciated in the three cases cited above. This exception isbased on the principle of nunc pro tunc. That principle would applywhere there is something ex facie defective in the plaint which necessi-tates its rejection, but due to an oversight, it has not been rejected. , InBead v. Samsudeen4 Bonser, C.J. stated:—
“ If the plaint is defective in some material point and that appearson the face of the plaint hut by some oversight the Court has omittedto notice the defect, then the defendant on discovering the defect,may properly call the attention of the Court to the point, and then itwill be the duty of the Court to act as it ought to have done in the firstinstance, either to reject the plaint or to return it to the plaintiff foramendment. ”
That case was followed in Soysa v. Soysa5 and Avva Vmmah. v. Gasinader 6,
In the instant case the plaint is not ex facie defective. Therefore thenunc pro tunc principle is not applicable to it. The counsel for the res-pondent, however, submitted that section 7 of the Partition Act shouldnot be construed on the analogy of section 46 of the Civil Procedure Codebecause, he alleged, that the former section is wider than the latter andthe consequences of a partition decree were far-reaching in nature. Iam unable to agree with that view. If a Court is entitled to reject aplaint at any stage of the proceedings it should have been clearly so statedin the Act itself. Great hardship is likely to be caused to innocent partiesif a plaint is to be rejected at a late stage of the proceedings in the action.After the acceptance of the plaint if it is found that the plaintiff has failed
1 (1896) 2 If. L. R. 10.
1 (1910) 14 If. L. R. 33.
3 (193T) 14 Times of Ceylon Law Reports 184.
1 (1893) 1 2f. L. R. 292.
(1913) 17 N. L. B. 180.
(1922) 24 N. L. S. 199.
K. 1>. DE SILVA, J.— Vethaianam v. Betnam
to join a necessary party he cam be penalized by entering an order forcoats against him as contemplated by section 70 (1). Section 70 (1)reads
The Court may at any time before interlocutory decree is enteredin a partition action add as a party to the action, on such termsas to the payment or prepayment of costs as the court mayorder,—•
any person who, in the opinion of the court, should be, or
should have been, made a party to the action, or
any person who, claiming an interest in the land, applies
to be added as a party to the action.
If in the opinion of the Court a person should be made a party to theaction it is the imperative duty of the Court to add him, according to theterms of this section.
■ In my view, once a plaint is accepted, the Court has no power to rejectit, except on the principle of nunc pro tunc. Therefore I set aside theorder appealed from and direct the District Judge to allow the plaintiffsto amend the plaint as desired by them. The defendant-respondentwill pay the costs of this appeal to the plaintiffs.
T.S. Fernando, J.—I agree.
Order set aside.
K. VETHAVANAM and two others, Appellants, and J. RETNAM, Respondent