T. S. FERNANDO, 3.—Rarvmenikhamy 9. Tiwaro
1962Present: T. S. Ferfiando, J., and Herat, J,
V. A. RANMKNlKHAMY and another, Plaintiffs-Pefcitioners, and
A. S. TISSERA and others, Respondents
. 0. 43—Application io Revise the order of the Supreme Court rejectingAppeal No. 187 of 1958fD. C. Oampaha No. 2796/P
Appeal—Order per mean am rejecting appeal—Power of Court to vacate the order.
The Supreme Court has power to vacate in appropriate circumstances anorder made by it per incuriam..
An appeal which was preferred, to the Supreme Court was rejected, on theapplication of Counsel for certain respondents, on the ground that notice ofappeal had not been served on one of the other respondents. It was later provedto the Court that the respondent in question was a minor who was representedin the action by a duly appointed guardian-ad-litem on whom notice of appealhad been duly served. It was also conceded that the objection was raised andnot resisted as the result of a mistake common to both Counsel and that therehad been substantial notice of appeal to the minor respondent.
Held, that, inasmuch as the order rejecting the appeal was made perincuriam, the Court had inherent jurisdiction to set aside its own order.
Application to revise an order made by the Supreme Court perincuriam.
H. W. Jaye-war dene, Q.C., with E. S. Amerasinghe, for the plaintiffs-petitioners.
N.E. Weerasooria, Q.C., with M. T. M. Sivardeen and R. Ilayperuma,for the 1st, 2nd to 9th, 15th, 17th to 21st, 23rd, 25th and 31st to 34thdefendants-respondents.
Cur. adv. milt.
March 12, 1962. T. S. Pbbnastjo, J.—
Appeal No. 187(Pinal) of 1958 in D. C. Gampaha Case No. 2796/Pcame on for hearing in this Court before the Chief Justice and K. D.de Silva J. on 23rd September 1959. Argument on the appeal wascontinued on 25th September before the same Judges and order wasmade that day that hearing be continued on a date to be 6xed inDecember. On 21st December 1969 the appeal was fixed for bearingbefore the same two Judges, but on that day the Court directed that thisappeal “ be listed next term in the ordinary course ”, and that it is‘‘not to be treated as a part-beard” appeal. It next came on forhearing before the Chief Justice and H. N. G. Fernando J. on 22ndMarch 1960 and hearing was continued on 23rd March when apparently
T. S. FEKNA2STD0, J.—Banmenikhamy v. Tisaera
a “ preliminary ” objection was raised to the hearing in that the appealwas not properly constituted because notice of appeal to be served ondefendant-respondent No. 16c had not been tendered. The Court,observing that “ it is a fact that the notice has not been tendered ”upheld the objection and rejected the appeal, but without costs beingawarded to the respondents. Mr. H. W. Jayewardene, Q.C., whoappeared for the appellants at the hearing of the appeal stated to usthat he had no prior notice of this objection and the order in respectof costs of appeal, following the practice of this Court in the matter,suggests that the objection was indeed taken while the argument insupport of the appeal was under way.
The application now before us is designed to have the order rejectingthe appeal set aside by way of revision or by way of restitutio-in-integrumand to have the appeal restored for hearing. The applicants submittedthat (1) defendant-respondent No. 16c was a minor who was representedthroughout the proceedings in the District Court by his duly appointedguardian-ad-litem, defendant-respondent No. 16a, (2) notice of appealwas duly served on defendant-respondent No. 16a, (3) defendant-respondent No. 16c was one of the parties substituted in place of originaldefendant No. 16 who died after the institution of the action and thatdefendant No. 16 neither claimed any interest in the land nor filedany statement of claim, (4) there was substantial notice of appeal todefendant-respondent No. 16c in that his guardian-ad-litem was dulyserved with notice of appeal, (5) the order rejecting the appeal wasmade by this Court per incuriam, and that that order would undoubtedlynot have been made had the Court been made aware of all the relevantfacts, (6) by this order so made per incuriam substantial loss and graveprejudice have been caused to the plaintiffs, and (7) after the order ofthis Court rejecting the appeal was made no rights in the land to whichthis partition action relates have been acquired by any other person orpersons. The last of these submissions, supported as it is by affidavit,has not been contradicted by the respondent.
That this Court has power to vacate in appropriate circumstancesan order made by it per incuriam appears not to be doubted. Shaw J.so stated in a case reported in 23 New Law Reports 475, following thedeoision in Police Officer of Mawalla v. Galapatta 1. In the latter caseWood Renton C.J. acting by way of revision set aside an order madeearlier by him on the ground that that earlier order dismissing an appealhad been made per incuriam as a result of a mistake on the part of the Courtitself. Both cases I have referred to above were criminal cases. Ourattention was directed to the decision of this Court in a civil caseMenchihamy v. Muniweera2, where the Court granted relief by way ofrestitutio-in-integrum which had the effect of getting behind an earlierorder of the Court dismissing an appeal in a partition case. In the instantcase it is right to act on the assumption that counsel who took the
3 (1950) 52 N. L. B. 409
1 (1915) 1 0. W. R. 197,
T. S. FJSEVNAH1X), 7.—Banmanikhataif v, Tiatera
objection to the constitution of the appeal did so by mistake and failureto paint to the Court that the party who bad no notioe of appeal was
a minor who was represented by a guardian-ad-litem who himself hadnotice duly served on him resulted also from an overlooking of the factthat defendant-respondent No 16c was a minor. Counsel for the appel-lants must have been taken by surprise if the objection was raisedwithout prior notice in the course of the argument, and this oircuxnstanceundoubtedly placed counsel under a disadvantage. Counsel whoappeared at the appeal were the same counsel who appeared before uson this application. It is conceded that the objection was taken as aresult of a mistake which is proved in this instance to have been commonto both counsel. This mistake led to the Court acting on the submissionmade by the respondents’ counsel and acquiesced in by appellants’counsel. As it is now conceded that the mistake has wrongly deprivedthe appellants of a substantial right they were entitled to at law, andas I am satisfied that the order rejecting the appeal was made perincuriam, I am also satisfied that the Court can in its inherent jurisdictionset aside its own order.
The order of this Court made ou 23rd March 1960 rejecting the appealis hereby set aside, and the appeal will now be restored to the pendinglist of appeals for hearing in. due course. There will be no costs of thisapplication.
Herat, J.—I agree.
V. A. RANMENIKHAMY and another, Plaintiffs-Petitoiners, and B. A. S. TISERA and