SHRIKANTHAN AND OTHERS
COURT OF APPEAL.
C. COLOMBO 8223/REOCTOBER 14, 17, 18, 1996
Civil Procedure Code Section 85 (4) – Nature of Inquiry – Judgment/Decreeentered – Judge functus officio – Exceptional circumstances.
The trial against the defendant-petitioner was adjourned for 7.2.96; on this datehe was absent, and on an application of the Counsel for the plaintiff-respondentthe plaintiff’s case was closed without further evidence being adduced.Judgement was fixed for 27.2.96, on which date it was postponed for 27.3.96 andjudgment was pronounced in favour of the plaintiff respondent. On 8.2.96 thedefendant-petitioner filed a motion stating that the Attorney-at-Law had mistakenlytaken down the wrong date and moved that the order fixing the case for judgmentfor 27.2.96 be vacated. This motion was not supported and Court deliveredjudgment on 27.3.96, in the presence of the Attorney-at-Law for defendantpetitioner and the plaintiff-respondent.
There was no appeal lodged against this order. Decree was entered on 27.5.96and on 19.7.96 the defendant petitioner was ejected from the premises inquestion.
Thereafter the defendant petitioner had revoked proxy and filed a fresh proxy, andmoved court to set aside the judgment delivered on 27.3.96 on the basis that itwas an ex parte judgment and the decree was not served on the defendant-petitioner.
The learned District Judge made an interim order restraining the plaintiffrespondent from causing any damage to the premises and issued Notice on theplaintiff-respondent. After hearing parties court on 8.10.96 dismissed theapplication holding that District Court was functus officio as far as the case isconcerned.
The defendant-petitioner sought to revise this order.
(ij The judgment had been delivered in the presence of the Attorney-at-Law forthe parties, the petitioner had not taken any steps to have the said judgmentcanvassed by way of an appeal. The petitioner had not indicated to courl that anyspecial circumstances exist which would invite this court to exercise its powers of
revision, since the petitioner had not availed himself of the right of appeal whichwas available to him.
(ii) The general rule is clear that once an order is passed and entered orotherwise perfected in accordance with the practice of the court which passedthe order is functus officio and cannot set aside or alter the order however wrongit may appear to be – that can only be done in appeal.
APPLICATION in Revision from the order of the District Court of Colombo.
Cases referred to:
W. Johanis Appuhamy v. Carlincho – 67 NLR 144
Thaiyalanayaki v. Kulanthaiveiu-68 NLR 176
Rustom v. Hapangama -1978/79 1 SLR 352
Piyaratana Unnanse v. Wahareka Sonnutara Unnanse 51 NLR 313 at 316
Ikram Mohamed with Thisath Wijegunawardena for defendant petitioner.
Mahenthiran with Ms Mithrakrrshnan and U. A. Mowjood for plaintiff
Cur. adv. vult.
This is an application in revision against the order dated 8thOctober 1996 marked K of the learned Additional District Judgedismissing the application of the defendant petitioner requiring him tohold that the Judgment was an interpartes judgment and that thecourt was not functus officio.
The plaintiff-respondent who were Governed by the Theswalamihad Instituted Action 8223/RE against the defendant-petitioner by aplaint marked 'A' and sought amongst other reliefs.
(a) the ejectment of the defendant-petitioner her agents, servant^and all others holding under her from premises. No. 82,Jampettah Street, Colombo 13 described in the schedule to theplaint: and
(b) Judgment in a sum of Rs. 55,000/- being damages up to 1.3.94and for continuing damages at Rs. 10,000/- from 1.3.94 tillvacant possession of the premises was delivered to the plaintiff-respondent.
The defendant-respondent filed answer dated 15.6.94 marked 'B'and moved for a dismissal of the plaintiff-petitioner’s action and madea claim in reconvention in a sum of Rs. 86,000/-.
The trial commenced on 11.12.95 and was adjourned for 7.2.96.On 7.2.96 the adjourned date of trial the defendant-petitioner wasabsent and unrepresented and on an application of the counsel forthe plaintiff-respondent the plaintiff's case had been closed withoutfurther evidence being led and he had moved that judgment beentered on the evidence already led. Judgment was fixed fcr 27.2.96.On 27.2.96 judgment had been postponed for 27.3.96 on which dayit was pronounced in favour of the plaintiff-respondent.
On 8.2.96 the Attorney-at-Law for the defendant-petitioner hadfiled a motion that he and the defendant were absent on 7.2.96 dueto the Attorney at Law mistakenly taking down the further trial date as
and had moved that the order fixing the case for Judgment for
However the said motion has not been supported. Thereafteragain on 22.2.1996 the Attorney-at-Law for the defendant-petitionerhas filed a motion together with a petition and an affidavit stating thaton 11.12.1995 that the Attorney of the defendant-petitioner hadmistakenly taken down the next trial date as 8.2.1996. As a result ofwhich the defendant-petitioner or her Attorney-at-Law was unable tobe present at the further hearing of the trial on 7.2.1996 and movedthat the judgment fixed on 27.2.1996 be not delivered and case befixed for further trial. The learned District Judge had fixed theapplication made on behalf of the defendant-petitioner by the saidmotion and the petition and an affidavit be mentioned on 27.2.1996.tyfhen the case was called on 27.2.1996 the defendant-petitioner, herAttorney, or her Attorney-at-Law had not been present and theaforesaid application made on her behalf had not been supported.The case was fixed to be called in Court No. 2 on 5.3.1996. On thatday too the defendant-petitioner or her Attorney had not beenpresent. The learned Additional District Judge had on that day fixedthe delivery of the judgment for 27.3.1996. The judgment had beendelivered in favour of the plaintiff-respondent on 27.3,1996 in thepresence of the Attorney-at-Law for the defendant-petitioner and theplaintiff-respondent. No appeal had been preferred against the saidjudgment by the defendant-petitioner. Decree had been entered on
and on 3.7.1996 the Attorney-at-Law for the plaintiff hasapplied for writ of execution which had been allowed by the learnedAdditional District Judge. The writ had been executed by the fiscalon 19.7.1996 and the defendant-petitioner and all those under herhad been ejected from the premises in suit on 19.7.1996.
After the eviction of the defendant-petitioner and those under her,the defendant-petitioner had revoked the proxy of her Attorney-at-Law and filed a fresh proxy together with a petition and an affidavitdated 23.7.1996 had moved the learned Additional District Judge toset aside his judgment delivered on 27.3.1996 and further moved fora declaration:
that the said judgment was an ex parte judgment and not an
that the writ issued for evicting her from the premises in suit hadbeen issued by mistake as a copy of the decree had not beenserved on the defendant-petitioner as required by section 85(4)Of the Civil Procedure Code.
that the eviction of the defendant-petitioner and all those underher from the premises in suit was unlawful and to restore thedefendant-petitioner to possession of the premises in suit and
to restrain the plaintiff-respondent-respondents their servants andagents from committing any damage to the premises in suit orfrom transferring the said premises to any person or persons tillthe inquiry into their application was determined.
The aforesaid application was supported before the AdditionalDistrict Judge on 24.7.1996 without notice to the plaintiff-respondent.The learned Additional District Judge having heard learned Counsel
in support of the application had refused to grant the relief claimed,but however made an interim order restraining the plaintiff-respondent-respondents, their servants and agents from causing anydamage to the premises in suit or transferring the premises in suit toany other person and directed that a copy of the petition and anaffidavit to be served on the plaintiff-respondent and made an orderto call the case on 16.8.1996 after notice to the plaintiff-respondent.On 16.8.1996 the plaintiff-respondent had appeared and had movedto file objections. The objections have been filed on 30.8.1996 and aninquiry into the application had been fixed for 4.9.1996. On 4.9.1996both parties to the action had agreed to file written submissions andfor the learned Additional District Judge to make an order afterconsideration of the written submissions. After a consideration of thewritten submissions tendered on behalf of the parties learnedAdditional District Judge by his order dated 8.10.1996 marked "K”dismissed the application holding that District Court was functusofficio as far as the case is concerned. Further the learned AdditionalDistrict Judge had also vacated the interim order made on 24.7.1996granting interim relief restraining the plaintiff-respondent-respondents, their servants and agents. It is this order of the learnedAdditional District Judge dated 8.10.1996 that is sought to beimpugned in this application.
The petitioner in this application in revision has prayed inter alia forthe following relief:-
to set aside the order of the learned Additional District Judgedated 8.10.1996 and to make an order that the judgment entered on
by District Court is an ex parte judgment and or the ordermade to execute the Decree entered in the said case withoutcompliance with section 85(4) of the Civil Procedure Code is perincuriam.
to make an order to restore the defendant-petitioner topossession of the land and premises from which he was ejected inexecution of the said decree and to grant and issue an interim orderrestraining the plaintiff-respondent-respondents, their servants andagents from causing damage to the premises in suit and fromhanding over possession thereof to any 3rd party.
At the hearing of this application learned Counsel for the petitionercontended that when the defendant-petitioner and her Attorney-at-Law were absent on 7,2.1996 the date fixed for further trial that thelearned Additional District Judge could not have fixed the case forjudgment, and in any event that the judgment delivered on 27.3.1996should be treated to be an ex parte judgment. In support of thiscontention learned Counsel relied on the cases of W. JohanisAppuhamy v. Carlincho(,) and Thaiyalanayaki v. Kulanthaivelu™. Inthe first of the cases relied upon by learned Counsel after the plaintiffhad closed his case and the defendant called a witness the case hadbeen put off for further hearing. On the adjourned date the defendantand his proctor were absent. It was held “that in the circumstancesthe only course which the Court could have adopted was to enterdecree nisi in favour of the plaintiff in terms of section 85 of the CivilProcedure Code. In such a case the Court cannot give judgment forthe plaintiff on the basis that the defendant did not intend to lead anyfurther evidence". The decree of the District Court was set aside andthe appeal was allowed. The latter case relied upon too was decidedon similar lines. For the purpose of deciding the present applicationbefore us I think it is unnecessary for us to consider the correctnessor otherwise of the decisions relied upon by learned Counsel for thepetitioner.
By this application the petitioner is seeking to have the order dated
marked “K” set aside. By the said order the learnedAdditional District Judge having considered the application made bythe defendant-petitioner after, a consideration of the writtensubmissions tendered on behalf of the parties in our view quite rightlyheld in the circumstances set out above in this order that he wasfunctus officio and had no power to set aside his own order. It is to benoted as set out above the correctness of the judgment dated
should have been canvassed by way of an appeal. It is tobe noted that the said judgment had been delivered in the presenceof the Attorneys-at-Law for the parties. The petitioner has not takenany steps to have the said judgment canvassed by way of an appeal.After the execution of the decree and after the petitioner was ejectedfrom the premises in suit, by her application of 24.7.1996 she hassought to invoke the jurisdiction of the learned Additional DistrictJudge to set aside his own order which the petitioner cannot bepermitted to do.
In this application before us the petitioner has failed to set out anyreason as to why she did not prefer an appeal against the judgmentdated 27.3.1996 and there are no averments to indicate as to why theExtraordinary Jurisdiction by way of Revision should be exercised. Inthe case of Rustom v. Hapangama(3> it was held that "The trend ofauthority clearly indicates that where the revisionary powers of theCourt of Appeal are invoked the practice has been that these powerswill be exercised if there is an alternative remedy available, only if theexistence of special circumstances are urged necessitating theindulgence of this Court to exercise its powers in revision.”
The appellant had not indicated to Court that any specialcircumstances exist which would invite this Court to exercise itspowers of revision, particularly since the appellant had not availedhimself of the right of appeal which was available to him”.
The Privy Council in Piyaratana Unnanse v. Wahareka SonnutaraUnnansew observed that "the general rule is clear that once an orderis passed an entered or otherwise perfected in accordance with thepractice of the court the Court which passed the order is functusofficio and cannot set aside or alter the order however wrong it mayappear to be that can only be done in appeal".
It is clear from the papers filed in these proceedings that theapplication made by the defendant-petitioners on 24.7.1996 to thelearned Additional District Judge was to set aside his own judgmentdelivered on 27.3.1996 when he was functus officio and the learnedDistrict Judge in our view was right in refusing the said application.Thus we see no error in the order which is sought to be impugned inthis application and for the reasons stated we refuse to issue noticeand the application in revision is dismissed with costs in a sum ofRs. 2500/- payable by defendant petitioner to the plaintiff-respondent-respondents.
ISMAIL, J. -1 agree•
NAVAROCH v. SHRIKANTHAN AND OTHERS