WEERASOORIYA, J.—Siriya v. Amalee
Present: Weerasooriya, J., and Sansonl, J.
SIRIYA, Appellant, and AMALEE et al., Respondents
S. C. 223—D. C. (Inty.) Kegalle, 8,077
Partition action—Interlocutory decree—Scope of its conclusive effect—Contestingdefendant's absence due to causes beyond his control—His right to re-open theinterlocutory decree—Partition Act, bio. 16 of 1961, ss. 48, 99.
In a partition action governed by the Partition Act, No. 16 of 1951,interlocutory decree was entered in the absence of the contesting defendant(appellant) who was prevented by causes beyond his control from attendingCourt on the trial date or giving instructions to his Proctor. Although hefulfilled all the conditions which normally would entitle a party to relief from anex parte order made against him for failure to appear at a stage of the action,the appellant was not given an opportunity of being heard.
Held, that section 48 of the Partition Act did not preclude the appellantfrom obtaining relief. The omission to give the appellant an opportunityof being heard was not merely an omission of procedure but was a far morefundamental matter in that it was contrary to the rule of natural justiceembodied in the maxim audi alteram partem.
-AlPPEAL from an order of the District Court, Kegalle.
G. R. Gunaratne, for the 10th defendant-appellant.
Felix Dias, with Mrs. Lakshmi Dias, for the plaintiff-respondent.
Our. adv. tmlt.
April 11, 1957. Weerasooriya, J.—
This is an action by the plaintiff-respondent for the partition of acertain land on the basis that the original owners were two personsWattuwa and Rattarana who were entitled to the land in equal shares.After the action had been filed the 10th defendant, who is the appellant,intervened and was added as a party. According to the answer filedby him the original owner was one Pincha who died leaving three children,namely, Wattuwa and Rattarana aforesaid, and also Undiya the fatherof the 10th defendant and he claimed an undivided £ share as the soleheir of Undiya. Hone of the other defendants filed any answer.
This being the only contest, the matter was set down for trial on the8th June, 1955, on which date the 10th defendant was absent and hisproctor stated that he had no instructions from his client and was notappearing for him. The Court then proceeded to hear the evidenceof the plaintiff and after his examination-in-chief (there being no cross-examination) the case was put off for the 22nd and 23rd June, 1955,for the tendering of documents and for judgment respectively. It isnot clear from the record whether the Court purported to hold the trialin which the plaintiff’s evidence was taken as an ex parte or inter partesproceeding. But in view of the decision in Andiappa Ghettiar v. Sanmu-gam Ghettiar1 the trial should be regarded as having been held ex partesince the 10th defendant’s proctor said that he was not appearing
1 (1932) 33 N. L. R. 217.
8*—3. N. B 12871 (3/69).
270WEERASOORIYA, S.—Siriya v. AmaUe
for him and had no instructions. The Partition Act No. 16 of 1951(which governs the case) contains no provision dealing specificallywith a situation where either a plaintiff or defendant is absent on thetrial date, but section 79 states that in any matter or question of procedurenot provided for in the Act, the procedure laid down in the Civil ProcedureCode should be followed if such procedure is not inconsistent with theprovisions of the Act. Assuming that in an ex forte trial of a partitionaction governed by Act No. 16 of 1951 the procedure laid down in theCivil Procedure Code should be followed, the question whether theinterlocutory decree that is entered should be a decree nisi in the firstinstance does not appear to arise for determination in the present case.It is sufficient to state that the interlocutory decree that was in fact■ entered after the ex parte trial held on the 8th June, 1935, was a decreeabsolute in the first instance.
On the 17th June, 1955, the proctor for the 10th defendant filed apetition and affidavit of his client and moved that the case be refixedfor trial. According to the affidavit the 10th defendant had beenprevented by serious illness from attending Court on the trial date orgiving instructions to his proctor. There is a journal entry under thatdate that the proctor for the plaintiff objected to this “ as the case isalready decided ”. But, as pointed out by me, the case was far fromdecided at that date. The Judge made an order on the motion that thematter be mentioned on the 22nd June, 1955, (which was the date onwhich the case was to be called for tender of documents). On that dateas some of the documents were not filed a further date (the 6th July,1955) was given for filing them. The motion of the 10th defendant’sproctor which was to be mentioned on the 22nd June appears to havebeen lost sight of completely. In the meantime, on the 25th June, 1955,the plaintiff filed all his documents and moved that judgment be givenand the Court fixed the 6th July, 1955, for judgment, which was givenon that date ordering an interlocutory decree for partition on the basisof the pedigree and shares as set out in the plaint. The interlocutorydecree seems to have been entered on the 15th September, 1955. Noappeal was filed against that decree.
On the 22nd August, 1955, the 16th defendant’s proctor drew attentionto the motion and affidavit of the 17th June, 1955, and it was only thenthat the Court fixed the matter for inquiry which ultimately took placeon the 20th October, 1955. The Court delivered its order on the 21stNovember, 1955, holding that as interlocutory decree had already beenentered the 10th defendant was precluded by section 48 of the PartitionAct from obtaining the relief applied for. From this order he hasappealed.
Section 48 (1) of the Act provides, inter alia, that the interlocutorydecree that is entered thereunder shall, subject to the decision on anyappeal which may be preferred therefrom, be good and sufficient evidenceof the title of any person as to any right, share or interest awarded thereinto him and be final and conclusive for all purposes against all personswhomsoever, whatever right, title or interest they have, or claim to have,to or in the land to which such decree relates and notwithstanding any
WEERASOORIYA, J.—Siriya v. Amalee
omission or defect of 'procedure. The contention of learned counsel forthe plaintiff-respondent is that as there was no appeal from the interlocu-tory decree section 48 precluded the 10th defendant from obtaining th erelief applied for even though his motion and affidavit had beenfiled long before the interlocutory decree was entered, the omission(if any) on the part of the Court to make an order thereon prior to theentering of the decree being a procedural omission and covered by theterms of that section.
The statements in the 10th defendant’s affidavit, if true, would seem toprovide a reasonable explanation of his failure to be present at the trialon the 8th June, 1955, or to give instructions to his proctor. The truthof those statements was not disputed by the plaintiff’s proctor at theinquiry nor does it appear that he contended that they did: not constitutea reasonable excuse, or that there was undue delay in making theapplication. I shall assume, therefore, for the purpose of this appealthat the 10th defendant has given a satisfactory explanation that hisabsence on the 8th June, 1955, was due to causes beyond his control.If, however, the order of the learned trial Judge is correct it means thatthe 10th defendant is without any remedy even though he has not beengiven an opportunity of being heard and has fulfilled all the conditionswhich normally would entitle a party to relief from an ex parte, ordermade against him for failure to appear at a stage of the action.
In my opinion an omission to give a party to a suit an opportunityof being heard is not merely an omission of procedure but is a far morefundamental matter in that it is contrary to the rule of natural justiceembodied in the maxim audi alteram partem. As stated in Shaw v. TheAttorney General1 a judgment obtained in such circumstances has the“ incurable vice of being contrary to natural justice because the pro-ceedings are ex parte and take place in the absence of the party affectedby them Although no appeal has been filed against the interlocutorydecree, the conclusive effect given to such a decree under section 48 (1)of the Partition Act does not, in my view, attach to it in the circumstancesdisclosed in this case. It is to be noted that while under section 48 (3)and (4) it is possible that in certain cases the interlocutory decree shallhave the final and conclusive effect declared by section 48 (1) notwith-standing that it was entered by a Court not competent to do so or wasobtained by fraud and collusion, no such effect is, in terms, given to adecree which has been entered ex parte in the sense that a party againstwhom it operates was not afforded an opportunity of being heard.
The present appeal is from an order which is tantamount to a refusalto give the 10th defendant an opportunity of adducing evidence in proofof his claim. While I refrain from expressing an opinion (as no argumentwas addressed to us on the point) whether once the interlocutory decreehad been entered it was open to the trial Judge to vacate it on the groundsurged at the inquiry before him, I would, for the reasons already stated,set aside that order and (acting in revision) also the interlocutory decree.The case is remitted to the lower court so that the 10th defendant may
1 (1970) 2 P. & D. 158.
K. D. DE SILVA, J.—Seebert Sibva v. Aronona Silva
be given an opportunity, with notice to all the other parties, of adducingevidence in proof of his claim and such further proceedings be takenthereafter as are in accordance with law.
The 10th defendant will be entitled to his costs of appeal. The costsof the trial and of the inquiry held on the 8th June and 20th October, 1955,respectively will be costs in the cause.
Sansoni, J.—I agree.
Order set aside.
SIRIYA, Appellant, and AMALEE et al., Respondents