005-SLLR-SLLR-2005-V-3-MADULUWAWE-SOBITHA-THERO-vs.-JOSLIN-AND-OTHERS.pdf
Maduluwawe Sobitha Thero vs Joslin and Others
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MADULUWAWE SOBITHA THEROVSJOSLIN AND OTHERSCOURT OF APPEAL.WIMALACHANDRA, J.CA 1169/2003 (REV.).DC MTLAVINIA 389/00/P.DECEMBER 8, 2004.
Partition Law, No. 21 of 1977, sections 5, 12 and 48(4) – Judgment obtained byfraud-Evidence Ordinance, section 44 – Does section 48(3) override section 44of the Evidence Ordinance? Revision – Applicability – Failure to make a correctsection 12 declaration – Fundamental vice in the procedure adopted – Violationof provisions of Partition Law – Miscarriage of justice – Finality of the final decree- Civil Procedure Code, section 403- Abatement.
The petitioner filed action for a declaration of title and ejectment of the plaintiffrespondent. This action was abated but later restored. Whilst the said casewas pending the plaintiff respondent instituted partition action without makingthe petitioner, a party, but had made her daughters the only defendants. Theland to be partitioned is the same land which was the subject matter in theearlier case. The plaintiff respondent had executed a deed of declaration toclaim ownership to the property and relied on this deed to prove her title andfinal decree was entered on 08.11.2002.
The petitioner moved in revision.
Held:Section 48(3) of the Partition Law overrides section 44 of the EvidenceOrdinance; accordingly even a judgment obtained by fraud or collusionwould have the final and conclusive effect provided by section 48(1).
Held further:It is to be noted that the plaintiff respondent failed to disclose the nameof the petitioner who has title to the entire land. The failure to make acorrect declaration under section 12(1) of the Partition Law amounts to aprocedural irregularity which results in a miscarriage of justice.
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Per Wimalachandra , J.
“It is the duty of the plaintiff- respondent’s attorney -at-law, after theregistration of the lis pendence to personally inspect the entries in theLand Registry that relate to the land. The section 12 declaration filedfailed to disclose the petitioner’s name although his title deed is dulyregistered. This is a violation of the provisions of the Partition Law andcallous disregard of the provisions of the Partition Law which caused amiscarriage of justice and in my view amounts to the fundamental vice".
A person who had right title or interest in the subject matter not beingmade a party to a partition action is a victim of a miscarriage of justice.He can always invoke the powers of revision and restitution in integrum.
If the Court of Appeal fails to invoke its power of revision, grave injusticewill result to the petitioner.
Fraud vitiates all proceedings and'a judgment obtained by fraud cannotstand.
APPLICATION in revision from an order of the District Court of Mt. Lavinia.Cases referred to:
Suppramaniam et el vs. Erampakurukkal – 23 NLR 417 at 438
Rustomvs. Hapangama and Co. 1978/79/80 1 Sri LR 352
Somawathie vs. Madawala and Others 1983 2 Sri LR 15
Madina Bee vs. Seyed Mohamed 1965 68 NLR 36 at 38
SC Appeal 20/2003 – CALA 28/2000 – D. C. Ratnapura 940/P
Ranjan Suwandaratne for petitioner
G. Hussain for 1 st – 4th respondents.
Cur.adv. vult.
May 04,2005.
WIMALACHANDRA, J.This is an application in revision filed by the petitioner from the judgmentand the interlocutory decree dated 26.12.2000 and the final decree enteredon 08.11.2002.
Cp Maduluwawe Sobitha Them vs Joslin and Others (Wimalachandra, J.)27
The facts of this case as set out in the petition are briefly as follows :
The petitioner, who is the Viharadhipathi of Nagaviharaya Temple,Pagoda, Nugegoda, filed action bearing No. 765/96/L in the DistrictCourt of Mount -Lavinia on 31.12.1996 for a declaration of title andejectment of the plaintiff – respondent from the land described in theschedule to the plaint and to recover damages. The land, which is thesubject matter of the aforesaid action, described as a divided portion ofthe land called Kekunagoda Kurunduwatte bearing assessment No.162 Thalawathugoda Road, Pitakotte depicted in plan No. 103 dated02.09.1963 made by the Licensed Surveyor N. G. G. Wijeratne is inextent of 30.75 perches. The petitioner became the owner of the saidproperty by virtue of deed No. 1629 dated 22.10.1977 attested by W.Kaluarachchi N. P. (a certified copy of the deed marked A3 in annexedto the petition). The petitioner states that on several occasions theplaintiff – respondent had entered the said property disputing thepetitioner’s title to the same. However the petitioner’s predecessor intitle to the said property from time to time had leased the said propertyto the plaintiff – respondent’s husband, Gangodawilage Abraham Perera.The petitioner has annexed the said lease bonds bearing No. 11491dated 10.09.1-963 attested by H. W. Senanayake N. P., No. 12343dated 02.10.1964 attested by the same notary and lease bond No. 932dated 04.04.1976 attested by W. Kaluarachchi N. P. After the petitionerhad become the owner he too had leased this property by lease No.6192 dated 10.02.1987 attested by W. Kaluarachchi, N. P.
As the petitioner failed to take steps in the aforesaid case No. 765/96/L upon an application made by the-plaintiff – respondent, who was thedefendant in that case she moved Court through her Attorney -at- Law forthe abatement of that action and consequently the Court made order ofabatement of the said action. Thereafter the petitioner made an applicationunder section 403 of the Civil Procedure Code to vacate the said order ofabatement and the Court after considering the submissions made bycounsel vacated the order of abatement on 06.04.2002. In the meantimewhilst the said case was pending, the plaintiff – respondent instituted thepartition action No. 389/00/P on 26.02.2000, without making the petitioner
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a party. The plaintiff – respondent made her three daughters the onlydefendants in the said partition action. As such the plaintiff – respondentinstituted the said partition action together with her daughters as the onlyco-owners of the land to be partitioned.
It appears that the plaintiff – respondent instituted the said partitionaction with the view to defeat the title of the petitioner to the land in question.
• The land to be partitioned in the partition action is the same land which isthe subject matter inthe aforesaid D. C. Mount Lavinia Case No. 765/96/Lfiled by the petitioner against the plaintiff respondent. It is to be observedthat the plaintiff – respondent executed a deed of declaration bearing No.8504 dated 10.04.1996 attested by Neville Amarasinghe, N. P. to claimownership to the property which is the subject matter in the aforesaiddeclaratory action filed by the petitioner. The plaintiff – respondent reliedon the said deed of declaration made in 1996 to prove title to her and to herchildren in the partition action.
In the circumstances, it is crystal clear that the plaintifff respondentfiled the said partition action to defeat the petitioner’s title to the saidproperty and the plantiff – respondent along with her children filed the saidpartition action fraudulently and collusively to conceal from Court thepetitioner’s title to the said land to be partitioned in the partition action. Itis settled law that fraud vitiates all proceedings and a judgment obtainedby fraud cannot stand, “fraud is not a thing that can stand even whenrobed in a judgment” (Suppramaniam et. el Vs. Eram'pakurai uka!w at438).
Section 44 of the Evidence Ordinance provides, that
“any party to a suit or other proceeding may show that anyjudgment, order, or decree which is relevant under sections 40,41,42,and which has been proved by the adverse party, was deliveredby a court not competent to deliver it, or was obtained by fraud orcollusion.”
However, section 48(3) of the Partition Law overrides section 44 of theEvidence Ordinance. Accordingly, even a judgment obtained by fraud orcollusion would have the final and conclusive effect provided by section48(1).
•cA Maduluwawe Sobitha Thero vs Joslir and Others (Wimalachandra, J.)
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Nevertheless, the petitioner has filed this application in revision invokingthe revisionary jurisdiction of this Court. The petitioner raises an importantquestion as to the finality of the interlocutory and final – decree entered inthis partition action in view of a miscarriage of justice and the proceedingstainted due to a fundamental defect which goes to the root of the case.The Supreme Court observed in Rustom l/s. Hapangama and CoSz) thatthe trend of authority clearly indicates that where the revisionary powers ofthe Court of Appeal are invoked, the practice has been that these powerswill be exercised only if the existence of special circumstances are urgednecessitating the indulgence of this Court.
The land described in the plaint filed by the petitioner in the DistrictCourt case No : 765/96/L for a declaration of title and ejectment of theplaintiff – respondent is the same land for which the partition action bearingNo. 389/00/P has been filed by the plaintiff – respondent. The petitionerhas pleaded in the aforesaid District Court case the title deeds to establishhis title to the land. The petitioner has pleaded that at one time he hadleased the said land to the plaintiff – respondent’s husband, GangodawilageAbraham Perera by deed No. 6192 dated 10.02.1987 attested byW. Kaluarachchi, N. P. In these circumstances the plaintiff – respondentcannot say that she was not aware that the petitioner has claimed ownershipto the said land, which is the subject matter of the partition action.Accordingly, the plaintiff – respondent should have included the petitioneras a necessary party in her plaint in terms of section 5 of the PartitionLaw. In the circumstances, it appears to me that the plaintiff- respondentdid not deliberately make the petitioner a party to the partition action. Inthe District Court case No. 765/96/L, the petitioner is the plaintiff and theplaintiff – respondent is the defendant. That case is still pending. The subjectmatter in case No. 765/96/L and in the partition action 389/00/P is thesame land.
In the circumstances, I am of the view that the petitioner is a victim of amiscarriage of justice. The question that arises is whether the petitionercan invoke the powers of revision and restitutio in integrum vested in theCourt of Appeal. I find the answer to this question in the celebrated judgmentof the Supreme Court in the case of Somawathie V$. Madawela and others'31Soza, J. delivering the judgment in this case stated as follows at page 23 :
3- CM 7216
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“But although the Act stipulated that decrees under the PartitionAct are final and conclusive even where all persons concernedwere not parties to the action or there was any omission or defectof procedure or in the proof of title, the Supreme Court continuedin the exercise of its powers of revision and restitution in integrumto set aside partition decrees when it found that the proceedingswere tainted by what has been called fundamental vice.”
In his judgment Justice Soza, J. held the view that a person who hadright title or interest in the subject matter not being made a party to apartition action is a victim of a miscarriage of justice. He can alwaysinvoke the powers of revision and restitutio in integrum vested in the Courtof Appeal. In support of his view he cited the following passage from thejudgment of Sansoni, J. who delivered the majority decision of the DivisionalBench .in the case of Madina Beebee /s. Seyed Mohamed at 38.
“The power of revision is an extraordinary power which is quiteindependent of and distinct from the appellate jurisdiction of thisCourt. Its object is the due administration of justice. It is exercisedin some cases by a judge of his own motion, when an aggrievedperson who may not be a party to the action brings to his notice thefact that unles the power is exercised, injustice will result. ThePartition Act has not, I conceive, made any changes in this respectand the power can still be exerised in respect of any order or decreeof a Lower Court.”
At page 30 Justice Soza states as follows :
“ The pronouncement of Sansoni, C. J. in regard to therevisionary powers of the Court in Mariam Beebee Vs. SeyedMohamed (supra) , therefore remain applicable even afterthe enactment of the Administration of Justice (Amendment)Law No. 25 of 1975 and the Partition Law No. 21 of 1977.The powers of revision and restitutio integrum have survivedail the legislation that has been enacted upto date.These are extraodinary powers and will be exercisedonly in a fit case to avert miscarriage of justice. TheImmunity given to partition decrees from being assailedon the grounds ommissions and defect of procedureas now broadly defined, and of the failure to make
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“persons concerned” parties to the action should not beinterpreted as licence to flout the provisions of the Partition Law.The Court will not hesitate to use its revjsionary powers to giverelief where a miscarriage of justice has occurred.”
In the instant case as I stated above, the plaintiff – respondent wasaware of the deeds which are in favour of the petitioner in respect of thecorpus in the partition action filed by the petitioner. Moreover the plaintiff- respondent would have noticed it when a search was made at the LandRegistry. It is imperative to make a declaration- under section 12(1) of thePartition Law after the partition action is registered as a lis pendens.Section 12(1) stipulates that after the registration of the lis pendens, theplaintiff must file or cause to be filed in Court a declaration under the handof an Attorney-at-Law certifying that he personally inspected all the entriesrelating to the land to be partitioned in the register maintained under theRegistration of Documents Ordinance, stating the names of all personsfound, upon the inspection of those entries, to be added as necessaryparties to the action under section 5 of the Partition Law, No. 21 of 1977.it is to be noted that in the instant case the Attorney -at – Law of theplaintiff – respondent failed to disclose the name of the petitioner who hasa title deed for the entire land to be partitioned, which has been dulyregistered in the Land Registry. (See the chain of deeds produced markedA’ 3 to ‘A6’). The failure to make a correct declaration under section 12(1)of the Partition Law, amounts to a procedural irregulartiy which results ina miscarriage of justice, in that the petitioner who has a title deed dulyregistered to the entire property, which is the subject matter of the saidpartition action, was kept out without being made a party. This amounts towhat is called a fundamental vice. In an unreported Supreme Court caseJustice T. B. Weerasuriya made the following observation with regard tothe power of revision and restitution in integrum of the Court of Appeal.
“The revisionary powers of the Appellate Court, are unaffectedalthough section 48 of the Partition Law invests interlocutory decreeentered under the Partition Law with finality. Thus the exercise ofpowers of revision and restitutio in intergrum to set aside a partitiondecree when it is found that the proceedings were tainted by whathas been called a fundamental vice is available to the AppellateCourt”.
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In the instant case, the petitioner was not made a party despite thefact that he had right title and interest in the subject matter. The plaintiff -respondent knew the title deed of the petitioner which is referred to in theplaint filed in the Mount Lavinia D. C. Case No. 765/96/L where the plaintiff- respondent is the defendant.
Moreover, the deed No. 1629 dated 22.10.1977 attested by W.Kaluarachchi, N. P. which is registered in the Land Registry in Folio M1173/43, would have come to the plaintiff – respondent’s notice if she hadinstructed her Attorney-at-Law to do a search in the Land Registry. It isthe duty of the plaintiff – respondent’s Attorney-at-Law, after the registrationof the lis pendens, to personally inspect the entries in the Land Registrythat relate to the land. The declaration filed by the plaintif – respondent’sAttorney-at -Law failed to disclose the petitioner’s name although the deedNo. 1629 which is in favour of the petitioner is duly registered. This is a. clear violation of the provisions of the Partition Law and callous disregardof the provisions of the Partition Law which caused a miscarriage of justiceand in my view amounts to a fundamental vice. In these circumstances, ifthis Court fails to invoke its power of revision, grave injustice will result tothe petitioner.
For these reasons, I am of the strong view that this is a fit case for thisCourt to intervene in the exercise of its revisionary powers to avert amiscarriage of justice. Accordingly, I set aside all the proceedings in theDistrict Court up to the stage of the plaint and permit the petitioner tointervene in the partition action No. 389/00/P and to file a statement ofclaim. The petitioner is entitled to recover Rs. 10,500 as costs of thisinquiry from the plaintiff – respondent.
Application allowed
Petitioner permitted to intervene.