CASumanadeva and Another v. Sediris and Another
SUMANADEWA AND ANOTHER
v.SEDIRIS AND ANOTHER
COURT OF APPEAL
P. R. P. PERERA, J. AND WIJAYARATNE, J.
,C. A. APPLICATION No. 233/84- D. C. AVISSAWELLA 13670/PNOVEMBER 7, 1989.
Civil Procedure – Civil Procedure Code, ss. 839 and 189- Accidental slip or ommission.Evidence (in a partition suit) was led at the District Court during a re-trial that 7th and 8thdefendants are the children of Anjina. In an interlocutory appeal in the same case the Court.of Appeal had said the 3rd to 13th defendants are the children of Emina. An application wasmade to correct this on the ground that this was an accidental slip or ommission.
Sri Lanka Law Reports
11990} 1 Sri L.R.
Court has ample power under section 189 read with section 839 ot the Civil ProcedureCode to correct the error in question as it was an accidental slip or ommission.
Case referred to :
(1) Thambipillai vs. Muthucumaraswamy (57 N. L. R. 97)
APPLICATION for revision of order of the District Judge of Avissawella.
Dr. H. W. Jayewardene, Q. C. with D. R. P. Gunatilake and Harsha Cabraal for the 7th and8th Defendants – Petitioners.
1st and 2nd Plainbffs-Respondents absent and unrepresented.
cur. adv. vult.
November 13, 1989.
Case No. 13670/P was filed in the District Court of Avissawella on23.6,1973 by the plaintiffs for the partition of the land called “Alubogaha-watta” situated at Kalatuwa Kanda in Ratnapura District. On 25.9.1975the 1 st to 13th defendants filed their amended statement of claim.
On 25.11.1975 the case was taken up for trial after issues wereframed. The trial was continued thereafter.
On 12.12.1975 the learned District Judge gave judgment answeringthe issues in favour of the plaintiffs and the 1 st and 2nd defendants anddeclaring them entitled to the said land.
Being dissatisfied, the 3rd to 13th defendants appealed therefrom tothis court.
Thereafter the said appeal under No. C. A. (S. C.) 823/75 (F) came upfor hearing on 21.9.82 before Hon. Justice Abdul Cader and Hon. JusticeH. A. G. de Silva and judgment was delivered on the said date setting
Sumanadeva and Another v. Sediris (Wijeyaratne, J.)
appellants a 1/4th share and further ordering the learnedi District Judgeto investigate and decide on the devolution of rights to another l/4thshare.
Thereafter, on 14.2.1984 the ease came up for trial again in the DistrictCourt of Avissawella and the learned District Judge commenced. the..inquiry into the 1/4th share on the following two issues raised by the 'parties
Have the 1 st arid 2nd plaintiffs and the. 1 st and 2nd defendantsacquired title to the said 1/4th share by prescriptive possession?
Has the l/4th share of Sootiya devolved on the 3rd to 13thdefendants?
When the evidence of the 1 st defendant Hewainne Sopia was led, thewitness stated that the 7th and 8th defendants are the children of Anjina,the wife of Sootiya, whose 1 /4th share was under investigation. However,the attorney-at-law for the plaintiffs/ respondents objected to this evi-denceonthe basis thatthe above/ mentioned judgment of this court dated ,21.9.1982 stated that the 3rd to 13th defendants are the children ofEmina..
Actually on a perusal of the judgment of this court, it is stated asfdilows:-
“Therefore there can be no controversy that Emiria'sl/4th share de-volved on 3rd to 13th defendants who are the children of Emina."
Actually the 3rd to 13th defendants are not the children of Emina andthis is art obvjous mistake. Therefore1 the 7th and 8th defendants-petitioners have filed this application under section 189 of the: CivilProcedure Code to correct the judgment of this court dated 21.9.1982 bythe deletion of the words "who are the children of Emina" immediatelyafter the words “devolved on 3rd to 13th defendants"..
Sri Lanka Law Reports
(1990j 1 Sri LR.
To this application objections dated 17.5.1984 were filed by the 1 st and2nd plaintiffs-respondents. However, at the hearing of this applicationthey were not represented.
Dr. H. W. Jayewardene appeared for the 7th and 8th defendantspetitioners and submitted that this is a clear case of an error arising froman accidental slip or omission. He cited the decision of the Supreme Courtin Thambipillai v. Muthucumaraswamy (57 N. L. R. 97). That judgmentsets out the history of this section. In that case Gratiaen, J„ corrected thedecree entered by the Supreme Court in appeal on the ground that therewas an accidental slip.
Dr. H. W. Jayewardene submitted that in the case before us, this courthas ample power under section 189 read with section 839 of the CivilProcedure Code.
I agree with his submission. It would appear that Sootiya was marriedto Anjina and the 7th and 8th defendants are their children. Therefore,when the judgment of this court dated 21.9.1982 stated that the 3rd and13th defendants are the children of Emina, it was an accidental slip oromission.
Acting under section 189 the Civii Procedure Code, l correct thisjudgment by deleting the words “who are the children of Emina” immedi-ately after the words “devolved on 3rd to 13th defendants”.
I have considered the question of costs in this case. The 1 st and 2ndplaintiffs-respondents have filed objections to this application stating thatthis correction is outside the scope of section 189 of the Civil ProcedureCode and that the statement of the facts of the judgment is clear and plain,when it is not so.
When this case was taken up for further trial on 14.12.1984 in theDistrict Court of Avissawella in accordance with the judgment of this court,learned counsel for the plaintiffs-respondents took up this objectionbased on this obvious error in the judgment of this court.
Therefore I allow this application and make the correction in thejudgment of this court dated 21.9.1982 by deleting the words “who are thechildren of Emina" as indicated above.
Premanie Samarasinghe v. Leelaraja Samarasinghe
In the circumstances I order the 1st and 2nd plaintiffs-resporidents topay the 7th and 8th defendants-petitioners the cost of this application.
P. R. P. PERERA, J.-1 agree.Application altowed.
SUMANADEWA AND ANOTHER v. SEDIRIS AND ANOTHER