Halib Abdul Cader Ameer v. Danny Perera
HALIB ABDUL CADER AMEER
G. P. S. DE SILVA, CJ.,
KULATUNGA, J. AND
S.C. APPEAL NO. 41/95
A. APPLICATION NO. 789/90
C. COLOMBO NO. 5787/ZL
JULY 19TH, 1995
Vindicatory suit – Consent decree – Justus error – Jurisdiction of Trial Court to
set aside the decree – Restitutio in Integrum.
The District Court has no jurisdiction to set aside a decree entered byconsent of parties on the basis of justus error committed by a party inconsenting to the terms of the settlement. However, restitutio in integrumcan be claimed on the ground of ‘justus error’ which constitutes reasonableor excusable error.
The remedy by way of restitutio in integrum is an extraordinary remedyand is given only under very exceptional circumstances.
Cases referred to:
Cornelius Perera v. Leo Perera 62 NLR 413, 420.
A. K. W. Perera v. G. Don Simon 62 NLR 118, 120.
Usoof v. Nadarajah Chettiyar 61 NLR 173, 177.
Menchinahamy v. Muniweera 52 NLR 409, 413.
APPEAL from the judgment of the Court of Appeal.
Faiz Musthapha PC with Mahanama de Silva for plaintiff-appellant.Ikram Mohamed with Ian Fernando for defendant-respondent.
Cur. adv. vult.
Sri Lanka Law Reports
(1998) 2 Sri L ft
October 27, 1995.
G. P. S. DE SILVA, CJ.
The plaintiff instituted these proceedings against the defendant for adeclaration of title and ejectment from the land described in the thirdschedule to the plaint and in extent 9.72 perches. The said landdescribed in the third schedule to the plaint is shown as lot C in planNo. 1762 dated 24.7.87 made by P. Sinnathamby, Licensed Surveyor(P4). The plaintiff also prayed for an interim injunction to restrain thedefendant from constructing a building on lot C in the said plan markedP4. On being served with the notice of interim injunction, the defendantfiled his statement of objections stating, inter alia, that the land insuit is depicted as lots 1 and 2 in plan No. 20 dated 10th November,1948, made by G. A. H. Philipiah, Licensed Surveyor (P6A); thatpremises No. 88A, Maligawatte Place, Colombo 10, belonged to thedefendant by virtue of prescriptive title; that the said premises No.88A, Maligawatte Place, Colombo 10, fell outside lots 1 and 2 in thesaid plan No. 20 made by Philipiah, Licensed Surveyor (P6A).
On 10.01.89 the application for the interim injunction was takenup for inquiry. The plaintiff's position before the District Court was thatlots 1 and 2 in P6A is shown as lots A, B and C in P4. Both partiesagreed to superimpose plan P6A and plan P4 and the defendantagreed to demolish the building or any part thereof if it falls withinlots 1 and 2 in P6A. The parties further agreed to issue a commissionto a Surveyor for the purpose of obtaining the superimposed plan andto forward to the Surveyor P4 and P6A.
On a joint commission issued to Mr. Saliya Wickremasinghe, LicensedSurveyor, plan No. 766 dated 10.05.89 (plan X) along with thereport X1 was forwarded to court. On 26.01.90 the plan X and thereport X1 came up for consideration before the District Court. Partieswere present and were represented by counsel. Both parties agreedto settle the case, inter alia, on the following terms: (a) the defendantagreed to hand over to the plaintiff possession of the strip of land(lot 3 in plan X) which the District Judge marked as A to B in planX; (b) the defendant agreed to demolish the temporary building on
SC Halib Abdul Cader Ameer v. Danny Perera (G.P.S. D'e Silva, CJ.) 323
the said strip of land within one month. The court thereupon entereddecree in terms of the settlement.
After the entry of decree, the plaintiff began to have reservationsin regard to the settlement arrived at in court on 26.01.90 and hadconsulted another Licensed Surveyor S. Rasappah who had preparedfor him plans 2330 dated 20.7.90 and 2331 dated 20.7.90 which,according to the plaintiff, show that plan X (on which the settlementwas arrived at in court) is erroneous. On the'basis of the plans ofRasappah obtained privately by the plaintiff, an application for revisionand/or restitutio in integrum was filed in the Court of Appeal seekingto set aside the settlement and the consent decree, entered on26.01.90. The plaintiff failed in this application and hence the presentappeal to this court.
Leave to appeal to this court was granted on two matters:
(i) Is the District Court vested with jurisdiction to set aside a decreeentered by consent of parties on the basis of justus error committedby a party in consenting to the terms of settlements? (ii) Is the plaintiff-petitioner entitled to invoke the revisionary powers and the power ofrestitutio in integrum of the Court of Appeal to obtain relief in respectof 3 perches over and above the extent agreed upon by virtue ofthe consent order dated 26.01.90?
The answer to the first question is clearly in the negative. TheDistrict Court certainly has no power to set aside a "consent decree"on the basis of "justus error". Sansoni, J. (as he then was) in Cornelius
Perera v. Leo Pererai’> stated "the proper remedy is an application
for restitutio in integrum". Again at page 422 in the same judgmentthe learned Judge stated: “The District Judge however had no powerto . . . set aside the agreement entered into . . .".
As for the second question, it is to be noted that the plaintiff inhis petition filed in the Court of Appeal averred that he “had committeda justus error in consenting to the settlement which was totally basedon the plan X“. It was on this basis that relief by way of restitutioin integrum was sought to have the “consent decree" set aside. Said
Sri Lanka Law Reports
(1998) 2 Sri LR.
Sansoni, J. in A. K. W. Perera v. G. Don SimorP», ■restitutio in integrumcan be claimed on the ground of "justus error0 which I understandto connote reasonable or excusable error" (The emphasis is mine).
Was the "consent decree" in the instant proceedings entered byreason of such an error? The answer, I think, is in the negative. Thesole basis upon which the decree is assailed is the plans preparedby Licensed Surveyor Rasappah at the instance of the plaintiff about6 months after the case was settled in court. As stated earlier, thesettlement was reached in the presence of the parties, their counseland after due consideration.
In refusing relief the Court of Appeal expressed itself thus: "Theplan drawn by Mr. Rasappah has not been produced by the petitionerin the District Court at any stage. It is not open to the petitioner toassail the plan drawn upon the commission for the first time in thiscourt, on the basis of a plan which has been privately obtained byhim". With this reasoning, I am in entire agreement.
In any event, "… the power to grant relief by way of restitutioin integrum is a matter of grace and discretion"; (Usoof v. NadarajahChettiari3); "the remedy by way of restitutio in integrum is anextraordinary remedy and is given only under very exceptionalcircumstances." (Menchinahamy v. Muniweeraw). No suchcircumstances are to be found in the present case.
For these reasons, the appeal fails and is dismissed but, in allthe circumstances, without costs.
KULATUNGA, J. – I agree.
WIJETUNGA, J. – I agree.
HALIB ABDUL CADER AMEER v. DANNY PERERA