MUNASINGHE AND ANOTHER
v.MOHOMED JABIR NAVAZ CARIM
COURT OF APPEAL.
K. PALAKIDNAR, J. AND H. W. SENANAYAKE, J.
C. A. No. 430/75(F) – D. C. KAL.UTARA No. 2756 (F).
MARCH 20. 1990.
Re-listing of appeal – judgment in appeal delivered before substitution in the room of deadparty – Section 760A of the Civil Procedure Code – Supreme Court'Rules gazetted inGazette Extraordinary of the Republic of Sri Lanka 44/23 dated 23.01.1974- Rules 2.3,4, and 5 – Inherent powers.
Plaintiff respondent died in July 1980 during the pendency of an appeal lodged by the17th and 18th defendant-appellants – petitioners on 14.11.1975. The appeal wasargued on 27.01.1987 and dismissed on 27.03.1987. Counsel marked his appearancefor the substituted plaintiff-respondent on 27.01.1987. Substitution had taken place on20.11' 1987 after the record was sent back to the District Court of Kalutara after thejudgment of the Court of Appeal. Counsel could not have made his appearance in Court forthe substituted plaintiff-respondent as no substitution had been made in terms of Rule 4 orRule 5 of the Supreme Court Rules gazetted in Gazette Extraordinary of the Republic of SriLanka No. 44/23 dated 23.01.1974. The action of the counsel misled the Court and theparties to the action.■■
The record was defective and the judment delivered by the Court of Appeal was anullity. Counsel had no status to appear for the substituted plaintiff-respondent as at thattime no substitution had been made.
(2j The Court has inherent powers to set aside its own judgment which is a nullity.
(3) In the interests of justice the appeal should be re-listed for hearing.
Cases referred to:
Moosajees V. Fernando 68 NLR 414,419
Batuwatte Piyaratne Thero V. Liyanage Noris Jayasinghe, S. C. 39/73 – S. C. Minutesof 08.02.1976
Ganeshanathan V. Vivienne Goonewardena  1 Sri LR 319
Ehambaran and Another V. Rajasuriya 34 C. L. W. 65
Srinivasa Thero V. Sudassi Thero 65 NLR 31
APPLICATION to re-list appeal
J. W. Subasinghe, P.C. with W. P. Gunatilake for the petitioner.
Dr. H. W. Jayawardene Q.C. with Harsha Cabral for respondent.
Cur. adv. vult.
May 25. 1990SENANAYAKE, J.
This is an application to relist the above appeal for a fresh hearing.
The 17th and 18th Defendants-Appellants-Petitioners appealed tothe Supreme Court against the judgment dated 14.11.1975 of thelearned District Judge of Kalutara.
The said appeal was argued before the Court of Appeal on
and the appeal was dismissel by the Court of Appeal on
The Plaintiff-Respondent pending the hearing of theappeal had died and no steps were taken to make any substitution of thedeceased Plaintiff-Respondent. However it appears that the learnedCounsel who appeiared in Court on 27.01.1987 had marked hisappearance for the subsitituted Plaintiff-Respondent in both appeals,430/75 and 431/75.
The Plaintiff-Respondent had died in July, 1980 and substitution hadtaken place on 20.11.1987 after the case record was sent back to theDistrict Court of Kalutara after the judgment of the Court of Appeal.
The learned Counsel for the Petitioners submitted as the record wasdefective by reason of the death of the Plaintiff-Respondentat thetime ofthe hearing of the appeal and at the time of the pronouncement of thejudgment and therefore he submitted that the judgment was a nullity.
It is apt to refer to Section 760A of the Civil Procedure Code whichreads as follows
'Where at any time after the lodging of an appeal in any civil action,proceeding or matter, the record becomes defective by reason of thedeath or change of status of a party to the appeal, the Courtof Appealmay in the manner provided in the rules made by the Supreme Courtfor that purpose, determine who in the opinion of the Court is theproper person to be substituted'
The relevant rules are gazetted in the Gazette Extraordinary of theRepublic of Sri Lanka 44/23 dated 23.1.1974. Rule 2 reads asfollows
'In the case of the death of an appellant, the legal representativemay apply to the Supreme Court to have his name entered on therecord in place of the deceased-appellant and the Court maythereupon enter his name and proceed with the appeal'
Rule 3 reads as follows
"If no such application is made within d reasonable time, the Courtmay make order abating the appeal and award to the Respondentcost of appeal to be recovered from the Estate of the deceased-appellant or the Court may if it thinks proper make such order as itthinks fit to bring in the legal representative of the deceased-appellant . . "
The relevant rule applicable to the instant case is rule 4 which readsas follows
'In the case of the death of a respondent the appellant or any otherrespondent may make an application to the Supreme Courtspecifying the name and address of any person whom he alleges tobe the legal representative of the deceased respondent and whom hedesires to be made the respondent in his stead. The Court shallthereupon on being satisfied that there are grounds therefor, enterthe name of such representative and shall issue notice on suchrepresentative to appear on a date to be therein mentioned. Providedthat the person so made respondent may object that he is not thelegal representative or make any defence appropriate to his characteras such representative. . .'
Rule 5 reads as –
"The legal representative of a deceased respondent may apply tothe Supreme Court to have himself made a respondent in place of adeceased respondent and the provision of rule 4 so far as they areapplicable, shall apply to the application and to the preceedings andconsequence ensuing thereon. .
The deceased Respondent's legal representative may apply forsubstitution. The appearance of the learned Counsel for theRespondent was made on behalf of the substituted Plaintiff-Respondent. Though in fact there was no substitution made the actionof the learned Counsel misled the Court and the parties to the action.Therefore when the Court of Appeal heard and delivered the judgmentthe record was defective. The defect was not cured. No papers werefiled by the legal representative of the Respondent for substitution. In thecircumstances the learned Counsel could not have made hisappearance in Court as there was no substitution done as contemplatedby the rules either in terms of Rule 4 or Rule 5.
It was within the knowledge of the legal representative of thedeceased Plaintiff-Respondent to know the demise of the Plaintiff-Respondent and to take steps in terms of Rule 5. But in the instant casethe learned Counsel has marked his appearance for the substitutedPlaintiff-Respondent without in fact any substitution.
The learned Counsel for the Petitioners submitted that as the recordwas defective the judgment deliverd by the Court of Appeal was a nullity. •I am of the view that there is force in the argument. I am of the view thatthe defective record should have been cured before the pronouncementof the judgment. In the instant case the learned Counsel had no status toappear and mark his appearance on behalf of the substituted Plaintiff-Respondent. Therefore the . proceedings of 27.1.1987 and thejudgment of 27.3.1987 was a nullity.
The learned Counsel for the Petitioners submitted that this Courtshould exercise its inherent powers and set aside the judgment andallow his application to have the appeal relisted for hearing.
The learned Counsel for the Respondent contended that this Courthas no inherent powers to revise its own orders. His contention was thatthe Court of Appeal was a creature of the Constitution and therefore its
powers were circumscribed by the provisions of the Constitution. I amunable to accept the said submission. This Court in my view has'itsinherent powers to correct its own orders. It was observed by H. N. G.Fernando, S.P.J. in Moosajees v. Fernando, (1) "This Court has alsoexercised an inherent power to correct error in a judgment which hasoccurred perincuriam. I doubt whether this power is exercisable only bythe Judge who had pronounced the judgement, for if so there would beno means of correcting even a manifest clerical error discovered in ajudgment after the death or retirement of the Judge who pronouncedit. .”
In the case of Batuwatte Piyaratne Thero v. Liyanage NorisJayasinghe., (2) was decided in appeal by Pathirana, J., and Ratwatte,
J., on 06.2.1976 with the appeal being allowed. On 06.4.1976 theRespondent filed a motion inviting the Court to rectify an error that hadoccurred in the judgment. Pathirana, J., observed, 'It is not always thatthis Court is confronted with a situation like in the present case ; there isa manifest error committed by this Court", and this Court acting inrevision quashed its earlier judgment of 06.2.1976 and dismissed theappeal.
In the case of Ganeshanathan v. Vivienne' Goonewardena. (3) theCourt reiterated the principle, (page 329), "That as a superior Court ofrecord it has inherent powers to make corrections to meet the ends ofjustice and that these powers have been used to correct errors whichwere demonstrably and manifestly wrong and when it was necessary inthe interests of justice to put matters right. ."
In Ehambaran and another v. Rajasuriya, (4) Nagalingam, A.J..although in the particular case he refused to interfere by way of revisionmade the observation –
"It is true that this Court has, acting in revision, modified or evenvacated judgment pronounced by it on appeal when apprised of thecircumstances that the Court had erred in regard to an obviousquestion of fact or of law, and one may go so far as to say that thoseare cases where an error being pointed out the Court without wantingto hear arguments, would ex mere motu proceed to set the errorright".
In Sirinivasa Thero v. Sudassi Them, (5) Sansoni, J., stated in page33, "where a Court makes an order without jurisdiction as in this case ithas inherent powers to set it aside and jhe person affected by the order
is entitled, ex debito justitie to have it set aside. It is not necessary toappeal from such order which is a nullity'.
I am of the view that the judgment delivered on 17.3.1987 to benullity as the record was defective. In the circumstances, in the interestsof justice I set aside the order and allow the application of the Petitionersto relist the appeal for hearing. The Petitioners would be -entitled to Rs.525 as costs of this application.
PALAKIDNAR, J. – I agree.
MUNASINGHE AND ANOTHER v. MOHOMED JABIR NAVAZ CARIM