Hussain r. ,a<na
Present: EL K. G. Fernando, C.I., and Samerawickrame, J.
A. M. M. HUSSAIN and another, Petitioners, and U. M. U. NAINA
and others, Respondents
S. 0. 224167—Application for Revision in D. C. Kalutara, 30222jP
Partition action,—Surveyor's report- – TTisiosure therein of a claimant other than aparty to the action—Procedure thereafter—Position where a person (not being aparty) is mentioned in the surveyor's report as having been merely present at thesurvey—Interlocutory decree—Right of a person to have it set aside on ground offailure to serve summons on him—Scope-—Partition Act (Cap. 69), ts. 18 (I),22 (1), 48 (3), 49, 70 (J) (a) (b).
. (i) Where a claimant (not being a.party to the action) is mentioned in thereport of the surveyor under Bection 18 (1) of the Partition Act, the Court "willordinarily follow the procedure set out in section 22 (1) of the Act and issue anotice in the first instance^ The Court will not -ordinarily add such claimantas a party unless and until he applies under section 70 (1) (6) of the Act to beadded as a party. However, if the Court adds him as a party under theprovisions of section 70 (1)- (a), he is entitled to have the interlocutory deoreeset aside if summons was not served on him.
Leelawathie v. Weeraman (68 N. L. R. 313), discussed. .
Where the return to the surveyor’s commission refers to a person, whois not a party to tlie action, as having been present at the survey but does notstate that he made any claim or the nature of his claim, there is no material
1 upon whieh the Judge can properly form an opinion under section 70 (1) (a) ofthe Partition Act that such person “ should be made a party to the action ”.If, nevertheless, a Court wrongly makes such a person a party to the action,but summons is not served oh him, the Supreme Court can in appropriatecircumstances correct the error by ordering the deletion from the record ofthe name of the person as having been a party to the action ; if so, sections48 (3) and 49 of the Partition Act will apply as though he had never beena party.
Where, in a partition action, a party moves the Supreme Court in revisionto set aside the interlocutory deoree on the ground that summons was notserved on him, the Court will consider whether the circumstances justify itsintervention long after the decree was entered.
A^APPLICATION in revision to set aside an interlocutory decree enteredby the District Court, Kalutara, in a partition action.
8. Sharvananda, for the 8th and 13a Defendants-Petitioners.
8. Nadesan, Q.C, with R. Mdnikbavasagar, for the 2nd Defendant-Respondent.
H. W. Jayewardene, Q.C., with M- T-. M. Sivardeen, fbr thePlaintiff-Respondent.
H. N. G. FERNANDO, C.J.—Huesain v. Naina
C. Ranganathan, Q.C., with M. T. M. Sivardeen, for the 5th, 17th, 31ato 31d and 37th Defendants-Respondents.
A. C. Oooneratne, Q.C., with R. C. Gooneratne, for the 3rd and 4thDefendants-Respondents.
Cur. adv. wM.
July 6, 1968. H. N. G. Fernando, C.J.—
This is an application inviting this Court, in exercise of its powers ofrevision, to set aside an Interlocutory Decree in a partition action.
The action was instituted in April 1954. Upon a commission forsurvey being issued, the commissioner inspected the land in June 1954.His return to the commission contains the following statement:—
“ Present: Plaintiff and 1st five defendants and the following new
A. A. M. Silly Hamona
A. M. Manwa Umachia
S. L. Mohamed
A. M. Hussain.”
(The 4th named person is the present petitioner.)
Thereupon, the Court ordered notices to be issued on the*c claimants ”, and such a notice was served on the present petitioner,who was one of the persons referred to in the commissioner’s return asa “ new party ”. The notice called upon the petitioner to show causewhy he should not be added as a party to the action, and why he shouldnot file a statement of his claim. The petitioner took no step at all inresponse to this notice. In May 1955, the Court made order that he beadded as a party, and his name was accordingly entered on the recordas the 8th defendant.
In July 1959, another commissioner inspected the land, and hisreport shows that the petitioner was again present on the occasion of theinspection.
No summons was issued or served on the petitioner, and the Courtproceeded to the trial of the action. The interlocutory decree was enteredin June 1966, and the 3rd defendant then lodged an appeal to this Courtagainst the decree. Notice of the appeal was apparently served on thepetitioner, who then applied to the District Court to set aside the decreeon the ground that summons had not been served on him. The Court
H. N. G. FERNANDO, C. J.—Hussain v. Naina
held that it had no power to set aside the decree, because the appeal tothis Court was then pending. Nine months later, in June 1967, thepetitioner filed his present application in revision.
Counsel for the petitioner relied very heavily on the decision of a benchof five Judges in Leelawathie v. Weemman1. holding that the Court haspower to add as defendant a claimant whose name is disclosed in thesurveyor’s return to a commission, and that when a party is so addedthe next step is to order summons to be issued on the new party.
I must say with the utmost respect that I cannot agree with some of the •grounds of the decision just cited. For instance, it is stated in thejudgment of Sansoni, C.J. that “ clearly the Judge was wrong when heordered notice to be issued instead of a summons ”. But the facts of thecase were that the name of the claimant was disclosed in the surveyor’sreport, and s. 22 (1) of the Partition Act provides that “ the Court shallorder notice of a, partition action to be issued for service on every claimant(not being a party to the action) who is mentioned in the report of thesurveyor under sub-s.iction (J) of s. 18”. It thus appears that s. 22lends support to the view that the consequence of a claim being made tothe surveyor is that a notice must be served on the claimant in the firstinstance, and that he will not usually be added as a party unless anduntil he applies under paragraph (6) of s. 70 (1) of the Act to be added as.a party. The problem which presented itself in Leelawathie v. Weemmanwould not have arisen if the District Court had refrained from addingthe claimant as a party, and had instead acted under s. 22 (1) as afirst step. .,
We are well aware of the delays and inconveniences which arise whenpersons who have no intention of putting forward claims in Court arejoined as parties in partition actions. Not only have summonses to beserved on all such persons ; notices of appeal have also to be served ; anddifficulty is often encountered in tracing the whereabouts of such personsand in effecting service. Furthermore, the death of any such personimpedes the action, and substitution of parties is again a source of delayand difficulty. We have ample experiences of long delays in thedisposal of appeals caused by the death of parties pending the hearingof appeals.
The ratio decidendi of Leelawathie v. Weeraman is ONLY that theDistrict Court has power to add as a party a person who is disclosed as aclaimant in the surveyor’s report, but NOT that the District Court shouldnot proceed under s. 22 and issue a notice in the first instance.
Section 70 of the Act provides for the addition of parties in two cases :—
(а)where the Court is of opinion that a person should be, or should
have been, made a party to the action;
(б)where a person applies to be added as a party.
1 (1966) 68 N. L. B. 313.
H. N. G. FERNANDO, C.J,-flwnom v. Naina
What was held by the bench of five Judges was that the fact of a claimhaving been made to the surveyor can justify the Court in reaching theopinion that the claimant should be made a party. But the bench didnot hold that the Court should not be content to follow the express pro-vision in s. 22, and then await the claimant's application, if any, to beadded as a party. And if he is so added on his own application, therewill ordinarily be no need for summons to be served on him thereafter.Sansoni, C.J. himself had this in contemplation, when he observed:—
“ If he appears before the Court and is permitted to take part in theproceedings, he may be said to have dispensed with the need forcomplying with the rule ”, namely the rule that summons must beserved on every party to an action.
I trust therefore that Courts of first instance will ordinarily follow theprocedure set out in s. 22 (1) of the Act, and will not ordinarily add aclaimant as a party until he applies to be so added. This procedure willavoid the delays and difficulties to which I have referred, and will reduceto a minimum the occasions for setting aside interlocutory decrees on the .ground upheld in the case of Leelawathie v. Weeraman.
Subject to the observations made above, the present Bench is boundby the recent decision, and must follow it unless the facts of the presentcase are distinguishable. I am satisfied that this is so.
Section 18 (1) of the Act requires the surveyor to state in his report“ the name and address of any person (not being a party to the action)who, at the time of the survey, preferred any claim, and the nature ofsuch claim ”. In the instant case, the report merely states that thepetitioner was present at the survey and refers to him as a “ newparty The report does not state that he made any claim, nor (quiteunderstandably) does it record the nature of his claim. It is highlyimprobable that the petitioner did in fact state what his claim was; in theease of other persons present at the survey, the report does set outparticulars of their claims. That being so, there was no material (winchthere apparently was on the facts of the case of Ledavxtfhie v. Weeraman)upon which the Judge could properly form an opinion under s. 70 (1) (a)of the Act that the petitioner “ should be made a party to the action ”.It follows that in the instant case the Court wrongly added the petitioneras a party. I shall deal at a later stage with the mode in which thiserror is to be rectified.
Another ground for distinguishing the instant case from the formerone is that it is the jurisdiction of this Court in revision, and not in appeal,which the petitioner invokes. The jurisdiction being exercisable indiscretion, it is relevant to inquire whether the circumstances justify
H. N. G. FERNANDO, CJ.-Swwn ©. 2/a*na77
the intervention of this Court at the present stage to set aside a decreeentered in 1966, in an action which commenced in 1964.- Let me statebriefly why there is no such justification:—
(а)The petitioner was undoubtedly aware, ever fiinoe June 1954, that
this action was pending; he was present at both'the surveyor'sinspections in 1954 and in 1959. But he did not feel the needto safeguard his alleged interests by taking steps to intervene inthe action.
(б)As already shown, the petitioner did not state to the surveyor
the nature of his daim, if any. Up to date, he has not stated,either to the District Court or to this Court, the nature of theclaim.
The petitioner received notice from the Court of the pending actionin 1955. It is beyond comprehension that, if he had any claimwhich he imagined to be one of substance, he would have stayed
– * out of Court for over 10 years. If he had consulted a Proctor on-reoeipt of the notioe, he would undoubtedly have been advisedto file a statment of claim. The failure to file such a statement,even at this vezy late stage, shows how speculative his allegedclaim must be, and how little interested he was in his allegedrights. It seems dear that he does not now intervene in goodfaith.."
Even the present application to this Court has been made onlyafter the lapse of 9 months from the time when the DistrictCourt refused to set aside the interlocutory decree.
There are in my opinion quite sufficient grounds for denying to thepetitioner the relief which he now claims.
My finding that the petitioner was wrongly made a party to this actionmeans that summons need not have been served on him. Neverthelesshis name is still on record as a party (8th defendant). But just as muohas he did not enjoy the rights of a party defendant, he equally must notsuffer any disadvantage by the improper joinder. Sections 48 (3) and49 of the Act confer oertain rights on persons who have not been partiesto a partition action, and it is proper that the petitioner should not bedeprived of recourse to those rights. I accordingly order that his namebe struck off the record as a defendant to this action.
Before concluding this judgment, I must point out that the notioesserved on claimants in this case were not in the proper form. The properform is prescribed in the Second Schedule to the Act (Vol. HI, p. 167).
Subject to the order for the striking off of the petitioner’s name fromthe record, the application is refused. I make no order as to costs.
Samebawickbame, J.—I agree.
A. M. M. HUSSAIN and another, Petitioners, and U. M. U. NAINA and others, Respo