COURT OF APPEALJAYASINGHE. J.
C. HORANA 3694/DJULY 28™ 2001NOVEMBER 30. 2000
Divorce – Exparte – without Notice – Death of husband – validity ofExparte Judgment – Is the Divorce action a personal action – Could theCourt of Appeal interfere with the Decree when one party is dead? IsRestitutio available – Constitution – ART 138(1).
The Defendant was married to one W. After the death of the said W thePetitioner was shown an exparte decree obtained by W, dissolving themarriage.
The Petitioner sought by way of Restitution – in – Integrum to remedy theInjustice caused to her by abuse and misuse of the legal process.
(1) Relief by way of restitutio – In -integrum of Judgments of originalcourts may be sought where the Judgments had been obtained byfraud by the production of false evidence, non disclosing of materialfacts or by force.
Per Jayasinghe, J.
"When a party appears and complains that she has been wronged by aprocess of law, this Court would not helplessly watch and allow thefraud practised on that party to be perpetuaded. Restitutio – In – Integrumprovides this Court the necessary apparatus to step in and rectify anymiscarriage of and failure of Justice. If this is not the case then thereis a serious vacuum in the law, which can be made use of by designingindividuals as the Petitioner alleges had happened to her."
APPLICATION by way of Restitutio – in – integrum.
Cases referred to :
1. Obeysekera v. Haramanis Appu -14 NLR 353
Kusumawathie v. Wijesinghe
Perera v. Wlfewlckrema -15 NLR 411
Lucy Hamy v. Alwis -26 NLR 123
Sri Lanka Insurance Corporation Ltd., v. Shanmugam -1995 1SLR 55
Sirinluasa Thero u. Sudessl Thero -63 NLR 31
Guneratne v. Dlnglrl Banda – 4 NLR 249
Ikram Mohamed PC., with M. LatheeJ and A. C. Abdul for Petitioner.
S. A. D. S. Suraweera for Respondent.
Cur. adu. vult.
March 22, 2001.
JAYASINGHE, J.This is an application by the Petitioner by way of Restitutioin Integrum to set aside the decree of divorce entered in CaseNo: 3694/D by the District Court of Horana after exparte trial.It is the position of the Defendant – Petitioner that she wasunaware of the proceedings instituted against her for thedissolution of her marriage to deceased plaintiff and that shehad no knowledge of the exparte trial, that no decree nisi wasserved on her; neither had she any knowledge that the decreenisi has been made absolute. She became aware of theseproceedings only after the 3rd months alms – giving, upon thedeath of the deceased husband.
The Petitioner states that she married the deceased Plaintiffone Wijesinghe Arachchige Wijesinghe on 29.09.1985 and thatthey lived as husband and wife at the matrimonial home 253A,Millewa. Horana until his death on 24.07.1996. Her husbandhad become seriously ill on 24.07.1996 whilst living in thematrimonial home and the Petitioner herself had admitted himto hospital at Padukka where he died. At the post -morteminquiry that followed the Petitioner testified as widow of thedeceased and the body was released to the Petitioner. Thefuneral expenses was borne by the Petitioner. The Petitionerstates she was shocked when she was shown a copy of theexparte decree at the Moragahahena Pblice Station on or about
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when she was summoned to the Police on acomplaint made by the Respondent above named the onlysurviving sister of her late husband. The complaint made on
against the Petitioner was that the Petitioner wasin wrongful occupation of the house after she had been divorcedby her husband long before his death. The Petitioner states thatbeing unaware of the said exparte decree she made anapplication to the Department of Pensions to obtain her duesand the said Department informed her that the Respondentabove named have forwarded a copy of the said divorce decreerequesting the said Department to withhold payments to thePetitioner. It is the position of the Petitioner that she has neverbeen living away from her husband and that they were happilymarried until his death. There have been no children by themarriage. The Petitioner moved the District Court of Horana on
praying that a declaration be made that the expartejudgment delivered on 14.10.88 was wrongly decided and torestore the status quo she enjoyed prior to the order made byCourt. The learned District Judge however by his order dated
held that the District Court has no jurisdiction tovacate the said decree and to seek relief from the Court of Appeal.The Petitioner accordingly filed application for relief by way ofRestitutio – in – Integrum to remedy the injustice caused to her byabuse and misuse of the legal process.
The Petitioner in support of her contention that she hasnever been living away from the matrimonial home or herhusband produced a number of documents. She has producedmarked 'A' a copy of a document which she has signed as awitness in February 1990 when she was living together withher husband whereby her husband sought to sell propertybelonging to him to one Suneetha Edirisinghe; the DeathCertificate as 'B' and the Post-Mortem Report as 'C' certifyingthat the body of the deceased and the death certificate havebeen handed over to her; an obituary notice marked 'C' whereher name appears as the wife along with the name of theRespondent. A complaint made by the Respondent to the Policeon 29.10.1996 marked 'D'; the case record marked 'F'. The
Kusumawathle v. Wifesing he
petitioner sates that she is a teacher by profession and for about10 years she had been attached to Olaboduwa Maha Vidyalayaupto 1995 and produced marked 'H' a letter from the principalof her present school. The Petitioner states that her late husbandhad fraudulently given a false address as 404/B, PanaduraRoad, Horana as that of the Petitioner. Petitioner further statesthat her husband admitted her to Castle Street MaternityHospital for medical examination and produced marked 'J'. theDiagnosis Card. The Petitioner says that the Respondenttendered extracts of the Voters List marked 'Al', 'A2 'A3' inrespect of years 1994, 1991 and 1986 respectively to show thatthe Petitioner was living away from the husband. Petitioner statesthat the application for insertion of names on the voters list infact has been filled and signed by the deceased husband andthat the Petitioner cannot be held responsible for the ommissionof her name. Petitioner states that even though the purporteddecree of divorce has been obtained in the year 1988 voters listfor the year 1992 marked 'M' reveal that both the Petitioner's aswell as the deceased husband's names are included as votersin the matrimonial home. The Petitioner States that the deceasedhas fraudulently made a declaration in September 1990 to theDepertment of Pensions that he was unmarried when in factthere was decree of divorce already obtained. This letter isproduced marked 'O'. The Petitioner complaints that the saiddecree of divorce has been obtained by her late husband withoutservice of summons fraudulently by abuse of legal process.
The petitioner filed an application in the District Court ofHorana on 28.03.1997 marked 'K' to have the said exparte decreedated 04.06.1997 marked 'L' vacated, the Court held that theDistrict court has no jurisdiction to vacate the said decree andobserved that the Petitioner should seek relief from this Court.
The Petitioner consequently filed this application invitingthis Court to exercise the jurisdiction vested in this Court byway of Restitutio in Integrum and to set aside the decree enteredin case No. 3694/D by the District Court of Horana.
Mr. Suraweera submitted that the divorce action before theDistrict Court was a personal action and with the death of the
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husband the action was brought to a close; that the Petitioneris prevented from making allegations against the deceasedhusband as he is no longer in a position to defend himself orrebut the allegations made against him. He submitted that theapplication should be dismissed in limine. He also submittedthat the Petitioner has failed to establish fraud as required bylaw and that the decree of proof required is very high. Thecontent of Mr. Suraweera's submissions is that the deceased isnot before Court to meet the allegations made against him andto that extent this Court should not interfere with the decreeentered by a Court of competent jurisdiction.
The question for determination by this Court is whetherthis Court would interfere with the decree entered by the DistrictCourt when one of the parties to the proceedings is dead andtherefore unable to refute the allegation of fraud which thePetitioner claims has been perpetuated on her. Mr. Suraweerawas vehement in his objections that this Court ought not tointerfere with the findings of the District Court as this being apersonal action which has been brought to a close with the deathof the deceased husband. The learned President's Counsel onthe other hand submitted that where an injustice has beencaused to a party by an act Court this Court is not with out thenecessary apparatus to repair the injury and grant redress tothe aggrieved party.
In Obeysekera v. Haramanis Appii111 it was held that theremedy of Restitutio – in – integrum is one which has taken deeproot in the practice and procedure of Courts, and it is too late tohold that the remedy ought no longer to be recognised. If courtis satisfied that there is a prima facie case, court shall issuenotice on the other sides.
"Under the Civil Law, where a person suffered a legalprejudice by the operation of law, the praetor having personallyinquired into the matter (causae cognitio) in the exercise of hisimperium, which enabled him to consider all the actual facts ofthe case might issue a decree re-establishing the original
Kusumawathle v. Wljesinghe
position; that is to say replacing the person injured in hisprevious condition. In Roman Law restitutio in Integrum wasthe removal of a disadvantage in law which had legally occured.It was protection against injustice (as distinguished for an actionagainst injustice) which was rendered necessary on account ofpracticed impossibility of taking legally in advance all thecircumstances into consideration that in reality may occur" WoodRenton, J. held further that – "In Ceylon as far back as the timeof Sir Charles Marshal Restitutio in Integrum was recognisedas a mode of relief against fraud and also as a means of settingaside the process of exparte execution."
In Perera v. Wijewickramai2> Court held that this remedycan be availed only to those who are actually parties to a contractor legal procedure. This remedy is not granted in Ceylon if theapplicant has any other remedy equally effectual open to him.The Roman Dutch Law remedy of Restitutio in Integrum hasnot been impliedly abrogated by the provisions of the CivilProcedure Code but such power should be exercised cautiouslyand sparingly.
In Lucy Hamy v. Alwls<3> it was held that where theDefendant against whom a judgment has been entered allegesthat the judgment has been obtained by fraud. The Court maystay the execution of the decree and give him time to apply forRestitutio in Integrum. The Court must enter an order ofabatement of the earlier case pending the second action.
In Sri Lanka Insurance Corporation Ltd. u. Shanmugam141it was held that Article 138( 1) of the Constitution has vested inthe Court of Appeal sole and exclusive jurisdiction to grant reliefby way of Restitutio in Integrum. The power of the Court togrant such relief is a matter of grace and discretion. Restitutionreinstates a parly to his original legal condition which he hasbeen deprived of by the operation of law. It is an extraordinaryremedy and will be granted under exceptional circumstances.
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Relief by way of Restitutio in Integrum of judgments oforiginal Courts may be sought where the judgments have beenobtained by fraud by the production of false evidence, nondisclosing of material facts or by force.
In Sirlnivasa Thero v. Sudessl Thero151 Court observed thatjustice requires that he should be restored to the position heoccupied before the invalid order was made, for it is a rule thatthe Court will not permit a suitor to suffer by reason of a wrongfulact. Court will so far as possible put him in the same positionwhich he would have occupied if the wrong order had not beenmade. It is a power which is inherent in the Court itself andrests on the principle that the Courts of justice is under a dutyto repair the injury done to a party by its act.
In Gunaratne v. Dingirl Bandam Bonsor. C. J. observedthat "This application was in substance an application for whatis called Restitutio in Integrum which is a well known civil remedyfor setting aside a judgment which has been improperlyobtained. It seems to have been the practice in Holland toapply for Restitutio in Integrum to the highest Court of Appealwhich has delegated to it the powers of the sovereign in thisrespect. If the applicant satisfies Court that he had a primafacie case, the case is remited to the Judge who pronouncedthe decree who if he found that the decree had been fraudulentlyobtained would restore the parties to their original position."
Mr. Suraweera's main contention was the action by thedeceased Pliaintiff against the Defendant-Petitioner was apersonal action and therefore since the deceased Plaintiff isunable to refute the allegation against him this Court ought notto interfere with the findings of the District Judge. I am unableto subscirbe to this point of view. Where a party appears beforeCourt and complains that she has been wronged by process oflaw this Court would not helplessly watch and allow the fraudpracticed on that party to be perpetuated. Restitutio – In – Integrumprovides this Court the necessary apparatus to step in andrectify any miscarriage or failure of justice. If this is not the case
Kusumawathie v. Wijesinghe
then there is a serious vacuum in the law which can be madeuse of by designing individuals as the Petitioner alleges hashappened to her. I am of the view this is an appropriate case forthis Court to step in.
I do not see any purpose of sending back the case forinquiry/re-trial as the Plaintiff is dead. Hence on the materialtendered to this Court I am satisfied that the decree for divorcehad been obtained without the knowledge or notice to theDefendant-Petitioner.
Hence I set aside the decree for divorce entered in case No.3694/D by the District Court of Horana. Further I declare thatthe Petitioner's marital status with the said Plaintiff remainunaffected by the proceedings held in Case No. 3694/D of DistrictCourt of Horana. I further hold that the Petitioner is entitled tothe pension rights on the death of the husband and the Directorof Pensions is hereby directed to take necessary steps forpayment of the same to the Petitioner.
The application for Revision is allowed. Since the Plaintiffis now deceased we make no order for costs.
JAYAWICKRAMA, J. – I agree.
KUSUMAWATHIE v. WIJESINGHE