SOMAPALA AND ANOTHER
COURT OF APPEAL.WEERASURIYA. J.KULATILAKA, J.
DC MT. LAVANIA 375/95/L.06th MAY. 1999.
Rei Vindicalio action – Claim o/Tnist – Settlement challenged on the basisof bias and change of scope of action – Proper remedy and procedure -Restitution in integrum ■ Civil Procedure Code Ss.408. 753 – Contradictingthe record.
When the case was taken up for trial parties had come to a settlement andaccordingly the settlement was recorded and decree entered.
The Plaintiff Petitioner sought to revise the said settlement.
Parties aggrieved by any order made in terms of S.408 CPC. couldcome before the Court of Appeal either by way of Revision (S.753) or thecommon law remedy of restitution-in-integrum.
If a party wishes to contradict the record he ought to file the necessarypapers before the Court/Tribunal of first instance, institute an inquirybefore such Court/Tribunal and thereafter if aggrieved by that ordercanvass the matter before the Court of Appeal.
It is not open to a Petitioner to tender convenient and self servingaffidavits sworn to by him for the first time before the Court of Appeal.
“There must appear to be a real likelihood of bias. Surmise or conjectureis not enough, there must be circumstances from which a reasonableman would think it likely or probable that the justice . . . would or didfavour one side unfairly at the expense of the other."
“When setdements or compromises are made as a precaution the natureof the setUement or compromise or adjustment should be explained tothe parties and their signatures or thumb impressions should beobtained."
Malcmi v. Somapala and Another (Kulatilaka, J.)
Cases referred to :
Andradie us Jayasekera Perera  2 Sri L.R. 206 at 209
A.K.W. Perera us Don Simon 62 NLR 118
Punchi Banda us Panchi Banda 42 NLR 382
Shell Gas Company vs All Ceylon Commercial & Industrial WorkersUnion [19981 1 Sri L.R. 1 18 at 120
K us Jayawardena 48 NLR 497 at 503
Jamal us Aponso 2 Times Law Reports 215
Metropolitan Properties Company vs Lannon & Others (1968) 3 All ER304 at 310
Fernando us Singoris 26 NLR 469
Sinna Veloo us Messrs Lipton Ltd., 66 NLR 214 at 215
APPLICATION in Revision from the Order of the District Court of ML
D.P. Mendis with B. Wellala for Plaintiff-Petitioner.
S. Mahenthiran for Defendant-Respondent-Respondent.
Cur. adv. vult.
June 29. 1999.
KULATILAKA, J.The original plaintiff-petitioner to this applicationDhampahalage Gunapala died while the case was pendingbefore this Court. Thereupon his widow Ukwattage SumanaMalani has been substituted in his place as the petitioner.
The plaintiff-petitioner instituted action in the DistrictCourt of Mt. Lavinia against the defendant-respondent-respondent seeking inter alia:
A declaration of title to the premises in suit described inthe schedule to the Plaint, and ejectment of the defendant-respondent-respondent therefrom. The defendant-respondent-respondent in his answer claimed a trust andsought a dismissal of the plaintiffs action. According toJournal entry (7) of 12. 01. 96 the case had been fixed for trialon 22. OS. 96.
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Journal entry of 22. 08. 96 shows that as the defendanthad failed to appear on that date Court had made order to hearthe case exparte, in spite of the fact that a lawyer had appearedon behalf of the defendant and moved for a postponement onthe ground that he could not obtain instructions from hisinstructing Attorney as he had gone abroad.
According to journal entry 11 of 17. 09. 96 after an expartetrial Court had entered judgment in favour of the plaintiff andentered decree accordingly. Thereupon the defendant withnotice to the plaintiff had preferred an application to purge hisdefault. Having considered the oral and written submissionsmade on behalf of the parties by order dated 03. 03. 97 Courtset aside the exparte order and permitted the defendant toproceed with the defence and refixed the case for trial on08. 09. 97. (vide P7)
According to the proceedings of 08. 09. 97 when the casewas taken up for trial, parties had come to a settlement andaccordingly the learned judge has recorded the settlement andthereafter entered the decree. By this application thepetitioner is seeking to set aside the purported settlementrecorded by the learned Additional District Judge.
In view of the contentions raised by the learned counsel forthe petitioner it is appropriate to refer to the proceedings of08. 09. 97 which include the impugned settlement as well. Itreads as follows:
"Plaintiff is present. Attorney-at-law Collin Mendisinstructed by Attomey-at-Law H.W. Jayatissa appears for theplaintiff.
Defendant is present. Attorney-at-Law Sahabanduinstructed by Attomey-at-Law Derek Fernando appears forthe defendant.
At this stage the case is settled on the following terms:
1. i. The defendant agrees to pay the plaintiff a sum ofRs. 10 lakhs (Rupees ten lakhs) in the followingmanner:
Malani v. Somapala and Another (Kulatilaka, J.)
Within four months from the date hereof, on the datespecified by the Court the defendant agrees to pay a sum ofRupees 5 lakhs in cash or by Bank draft in open Court. For thatpurpose call case on 08. 01. 98.
In the event of a default in payment in the aforesaidmanner the plaintiff has a right to ask for writ for therecovery of Rs. 10 lakhs.
If so, costs of issue of writ could be recovered.
If the sum of rupees 5 lakhs is paid in the aforesaidmanner it is agreed that the balance sum of rupees 5lakhs be paid monthly at the rate of Rs. 25.000/-commencing from February, 1998. on or before thelast date of each and every month by bank draft madein favour of the plaintiff. It should be delivered byregistered post to the address given in the plaint. Thedate of posting would be the date of payment.
In the event of two consecutive defaults the plaintiff isentitled to enter writ for the balance sum.
In that event, the plaintiff should notice thedefendant.
vii. It is also agreed that the plaintiff is entitled to costsinvolved in the issue of writ.
It is agreed that after payment of the aforesaid Rupees 10lakhs steps should be taken by the defendant to transferthe land at his expense and within two months afterpayment and as the last step the plaintiff should place hissignature to the deed. If the plaintiff refuses to sign, thetransfer could be executed by the Registrar of the Court byplacing his signature to the deed.
It is also agreed that in the event of the death of any partythe heirs are bound by these terms.
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In such event if any question arises payment should beduly made by depositing the aforesaid monies in Court.
If the defendant pays the aforesaid sum of Rupees 10 lakhsin full before the aforesaid period within two months ofsuch payment a right accrues to the defendant to obtainthe deed in the aforesaid manner.
The aforesaid terms were read over and explained to theparties. Having understood the terms and having acceptedthem the parties sign the record.
Enter decree accordingly.
In his endeavour to impugn the aforesaid settlement thelearned counsel for the petitioner urged the following grounds:
that the purported settlement was foisted on the petitionerby the learned District Judge in the absence of theAttomey-at-Law for the petitioner and that this purportedsettlement is tainted with bias.
that the tenor of the purported settlement is that it doesnot refer to the issues involved but takes the form of amoney decree.
The learned counsel for the defendant-respondent-respondent raised a legal objection to the effect that in a caseof this nature revision would not lie and that the proper remedywould be an application in restitution-in-integrum. Further hetook up the position that no exceptional circumstances havebeen raised, in the petition.
Before focussing our attention on the matters urged bylearned counsel for the petitioner, it is pertinent to considerthe legal objection raised by the learned counsel for thedefendant-respondent-respondent. Parties aggrieved by any
Malani v. Somapala and Another (Kulalilaka, J.)
order made in terms of section 408 of the Civil Procedure Codecome before the Court of Appeal either by way of revision asprovided for in section 753 of the Civil Procedure Code or thecommon law remedy of restitutio-in-integrum, the latter remedybeing claimed on the ground of“ Justus Causa”. There appearsto be no hard and fast rule that a particular remedy should beadhered to by an aggrieved party, both being extraordinaryremedies.
Vide Andradie vs Jayasekera Per era!n at 209, A.K.W.Perera vs Don Simon121.
Cautioning how settlements should be recorded by theoriginal Courts Soertsz, J in Punchi Banda vs Punchi Banda131made the following observation:
“The consequence of this obvious precaution not beingtaken is that this court has its work unduly increased bywasteful appeals and by applications being made to it forrevision or restitutio-in-integrum".
Thus it appears that an aggrieved party can resort to eitherapplications for revision or restitutio-in-integrum.
Furthermore, section 753 of the Civil Procedure Code asamended by Act No. 79 of 1988 has widened the scope ofapplication of that section, thereby repelling any doubt as tothe availability of revision applications to set aside ordersmade in terms of section 508 of the Civil Procedure Code.
Now we refer to the contentions advanced by the learnedcounsel for the petitioner. The petitioner has sworn to a selfserving affidavit which is filed of record. He complains that onthe 8th of September 1997 the case was taken up in thechambers of the Additional District Judge. The learned judgehad said that “the case has to be settled and can be settled"and thereafter without permitting the petitioner to consulthis lawyer "Pronounced various conditions” which were
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simultaneously recorded. Thereupon the learned Additional.District Judge wanted the parties to sign the record andaccordingly the petitioner had signed the record.
The effect of the above averments contained in paragraph11 of the affidavit of the petitioner would be to totallycontradict the record. It is clearly laid down in a number ofdecisions of the Appellate Courts in Sri Lanka that if a partywishes to contradict the record he ought to file the necessarypapers before the court or Tribunal of first instance, institutean inquiry before such Court or Tribunal, obtain an order andthereafter if aggrieved by that order canvass the matter in theappropriate proceedings before the Court of Appeal. Vide thedecision of Justice F. N. D. Jayasuriya in Shell Gas Companyvs All Ceylon Commercial and Industrial Workers’ Union141 at120; it was further held in the above case that it is not opento a petitioner to tender convenient and self serving affidavits,sworn to by him for the first time before the Court of appeal.
It is manifestly clear that in the instant case the petitionerhas failed to comply with the proper procedure laid down inthose decisions. Where no such procedure is adopted JusticeDias in King vs Jayawardenef5) at 503 laid down the rule thatthe Court of Appeal could not take into consideration selfserving and convenient averments in an affidavit to contradictor vary the record, In this regard Jayawardena, J. did not haveany reservations when he said “ I do not think that the recordcan be contradicted or impeached by affidavits”. Vide Jamalus Aponsd61 In view of the above decisions, we are of theconsidered view that the petitioner in the instant case shouldnot be allowed to contradict the settlement recorded by thelearned Additional District Judge on 08. 09. 1997.
The learned counsel made submission imputing bias tothe leaimed Additional District Judge who recorded thepurported settlement. In his endeavour he referred to the ordermade by the learned Judge on 03- 03. 97 (P7) vacating theexparte order court made on 17. 09. 96. Counsel submitted
Malani v, Somapala and Another (Kulatitaka, J.)
that the learned Judge in his order has stated that thedefendant not coming to court would be reasonable becausehe knew that the case would necessarily be postponed becausethe defence counsel was not coming to Court on that date.
Learned Counsel contended that this reasoning wouldgive the impression that the learned Judge was biased towardsthe defendant. A perusal of the order dated 03. 03. 97 clearlyshow that the defence counsel had been absent on 22. 08. 96and that Collin Mendis the learned counsel for the petitionerhad not objected to a postponement on that ground, (vide lastparagraph of P7 and the journal entry of22. 08. 96 marked asP4A). Further it must be remembered that it was the sameJudge who had made an exparte order against the respondent(the defendant in the District Court action). Hence thesubmissions of learned counsel are nothing more than a meresurmise or conjecture and therefore should fail.
Lord Denning Master of the Rolls in his decision inMetropolitan Properties Company vs Lannon & Othersm at 310has dealt with the test to be applied on the issue of bias in thefollowing terms:
"There must appear to be a real likelihood of bias.
Surmise or conjecture is not enoughthere must be
circumstances from which a reasonable man would think
it likely or probable that the justicewould or did
favour one side unfairly at the expense of the other".
We observe that all counsel if and when making anallegation of bias against a Judicial Officer should not only becautious but also mindful of the test laid down by LordDenning in such clear terms.
It is pertinent to scrutinize the phraseology used bythe learned Additional District Judge in recording thesettlement. The proceedings of8.9. 1997 show that the partiesthemselves and their counsel were present. Then the followingphraseology has been used:
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The English translation would be “at this stage the case issettled on the following terms”. In Fernando vs Singoris Appulstin the original court, in recording a settlement it was stated -“The following settlement is ordered." It was contended thatthis phraseology indicated that the settlement was imposed onthe parties by the Court.
Bertram. CJ (Schneider J agreeing) observed that he didnot think that the learned Judge’s words can justly be sointerpreted and the learned Judge must have meant that thesettlement being arrived at between the parties, an order wasmade in accordance with the settlement. He held that to ruleotherwise would be to impute an arbitrary proceeding to thelearned Judge for which there is nothing in his position or hisjudicial methods to justify the Appellate Court in imputing tohim. Accordingly the application was refused.
In the instant case the phraseology used in recording thesettlement can only be interpreted to mean that a settlementhas been arrived at between the parties, themselves on theirown volition. Thus we hold that the submissions of learnedcounsel to the effect that the settlement was foisted on themby the learned Judge is bereft of any merit.
A settlement or compromise had to be determined asprovided for in section 408 of the Civil Procedure Code. OurCourts have expressed the view that when section 408 speaksof the settlement being made in the presence of all the parties,since the Code provides that parties are represented by theirAttorneys their (parties) personal appearance is not required.(Vide Sinna Veloo vs Messes. Lipton Ltd.191 at 215). But ourCourts have observed that when settlements or compromisesare made, as a precaution the nature of the settlement orcompromise or adjustment should be explained to the parties
Malani u. Somcipala and Another (KulatUaka. J.)
and their signatures or thumb impressions should beobtained. Vide decision of Soertsz, J in Punchi Banda vs PunchiBandafsupra).
It is evident from the proceedings that in recording thesettlement all precautionary measures Soertsz, J. referred toabove have been, observed. The sum agreed upon by theparties, the manner in which payment sho.uld be made to theplaintiff by the defendant have been clearly laid down inClause l(i). Provisions for the issue of writ in favour of theplaintiff in default of payment by the defendant have beenincluded in clause l(ii to vii) of the settlement and. Clauses 2and 5 deal with the manner in which the transfer should beexecuted in favour of the defendant after payment of the agreedsum by the defendant to the plaintiff. Clauses 3 and 4 deal withas to how the settlement should be given effect to in the eventof death of either party.
We do not see any deficiency or irregularity in the tenor ofthe settlement. Hence, the contention raised by the learnedcounsel for the petitioner regarding the tenor of the settlementshould necessarily fail.
For these reasons we dismiss the application for revisionwith costs.
WEERASURIYA, J. – I agree.