021-SLLR-SLLR-1982-1-A.-W.-Perera-Vs.-Belin-Menika.pdf
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[1982] 1 SLR
COURT OF APPEALA.W. PereraVs
Belin MenikeA. Application No. 1131181 – D.C. Gampaha 21485
Section 408. 428 and 676 of Civil Procedure Code – Compromise – agreement toabide by order of Judge after inspection – validity. Can Judge be anarbitrator in same case. Restitutio in integrum – Revision.
Plaintiff instituted action for a declaration of a right of roadway byprescription over two lands owned by the 2nd defendant. In the alternativePlaintiff claimed a way of necessity. First Defendant filed answer denyingthe plaintiffs right to a roadway.
During the course of the trial the parties agreed to abide by a decisionof the Judge after he made a personal visual inspection of the lands. Inpursuance of this agreement the Judge visited the lands in the presenceof the parties and their lawyers and decided to award the plaintiff a right of way.
The first defendant respondent filed this action for restitutio in integrumon the grounds that the agreement was of no force or avail and theDistrict Judge’s order should be reversed.
Held that the inspection of premises is provided for in Section 428 ofCivil Procedure Code and an agreement to abide by the decisionof the Judge is a valid agreement (following decision in Walliammev. Selliah)
Application for restitutio in integrum and revision.
Before:
Counsel:
Argued on:
Tambiah, J. ASeneviratne, J
C. D.S. Siriwardcna for first Defendant – petitioner.
P. A. D. Samarasekera for respondent.'
16.12.1981
Decided on:17.03.1982.Cur.ad>:vult.
SENEVIRATNE, JThe plaintiff-respondent to this application filed an action on11.4.1979 in the District Court, Gampaha, claiming a declaration thatshe was entitled to a right of roadway by prescription over two landsowned by the first defendant-petitioner and the second
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defendant-respondent.. In the alternative, the plaintiff-respondentclaimed a cartway by way of necessity,,/The plaintiff-respondent stated'in the plaint that the first de/^daiit-petitioner had obstructed theexisting cartway. The../irst^ d^'fenjdaqypficr .filed answer denyingthat the plaintiff-respondent was. cnfitled ”to t e, c g r;t.w ay u I a irn e d eitherby prescription or by way of necessity. The second defenyiiv^t-^pondcntto this application admitted the claim of cartway made by theplaintiff-respondent . On the date of trial – 27.4.81. the issues wereframed. The main issues related to the claim of cartway by theplaintiff-respondent by prescription and by way of necessity.
On the trial date, 2.7.81, the plaintiff was not present in Courtand she was represented by. her husband. Both defendants yyerepresent. The parties were represented by their respective.Attorneys-at-Law. On this day the parties reached an agreecnpnt. andall parties signed the record acknowledging the agreement tyhiph .wasread and explained to them by Court. The plaintiff-respondent.wasdirected to attend Court on the next day and,..sign..the record, Asthe consideration of the nature of this agreement is vital. to thisapplication before the Court, I will set out in full,the terms of thisagreement (translation). It was agreed as follows:-. .
“The parties consent that the Court should visit the scene andinspect the road shown by the .plaintiff and the road sho>ynby the first defendant (both parties had submitted plans to theCourt) and the parties agreed that the Court should decidewhether the plaintiff should be given or whether he shouldnot be given the right of way claimed by the plaintiff. Partiesstated that they will accept the decision made by the Courtwhether it will be favourable or unfavourable to any party. 1explain to the parties that if 1 visit the scene I will inspectthe place and give my decision at the spot but I will not againhold any trial. I question the parties whether they consent tomy.giving a decision after inspecting, the place – whether itwill be favourable or unfavourable to any party. All partiesstate that they consent to my visiting the scene and giving adecision and to accept my decision."
In terms of the above agreement the Court (the Judge) visited theplace on 31.08.81. The plaintiff and the two defendants were present…The plaintiff and the first defendant were represented , by .their
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respective Attorneys-at-Law. The proceedings at that spot are recordedas follows in the journal entry of 31.8.81 (translation) – “In thepresence of the parties and the Attorneys-at-Law l inspect the roadsshown by both parties. Judgment on 2.9.81. Parties informed. Thesecond defendant expresses his consent to give the road claimed by
the plaintiff, that is the road going across the first defendants”
( a word is missing in the copy of the document filed) and afterthat' “across-the second defendant’s field.” Judgment was deliveredon 2.9.81 in the presence of all parties and their respectiveAttorneys-at-Law. The judgment gives in detail the notes of theJudge’s inspection and the Judge sets out the tract of the roadwaythat should be given to the plaintiff-respondent. The Judge has statedin the judgment that the road as pointed out by the plaintiff wasnot visible on the ground at the time of inspection. This was dueto the fact that across the road, as shown by the plaintiff, therewere several trenches dug two feet by two and half feet and theentrance to the road as shown by the plaintiff was obstructed by a■recent barbed wire fence and that Araliya branches have been plantedalong the fence recently. Then the Judge has stated, “I inspectedthe alternate roads as shown by the defendant. Those alternate roadswere unsuitable.” Ultimately the Judge states “As such, and as thesecond defendant consents to give a right of way across her land, Idirect that the plaintiff should be given a right of way eight feetwide as shown by the plaintiff from the Gansabawa road across thefirst defendant’s land.”
In the present application before this Court the firstdefendant-petitioner has prayed that by way of Restitutio in Integrumand/or revision.
that the order of the learned District Judge dated 2.9.81' be reversed.
'that the agreement dated 2.7.81' be declared void and of■no force, and for an order that the case be decided afterrecording evidence.
Of the several grounds urged in this application the main groundsthat were urged and pressed were that (a) the agreement to allowthe learned District Judge to decide whether the cartway asked forby the plaintiff should be given or not on an inspection of the landsconstituted the Judge an arbitrator and not a Judge for which there
LAPcrera v. He!in Mertike (Senevirarj/c. J.)2(W
was no provision in the Civil Procedure Code: (b) the agreementbetween the parties was bad in law in that it vitiates the provisionsof section 676 of the Civil Procedure Code.
The plaintiff-respondent has objected to this application on theground that the proceedings of 2.7.XI was a valid adjustment of theaction lawfully made by the parties under section 408 of the CivilProcedure Code and that it was not open to the defendant to rescindthat adjustment when he found that the result was unfavourable to him.
1 will now deal with the submission made by learned Counsel forthe petitioner – ground (a) referred to above – in that the judgewas constituted as an arbitrator for which there was nq provision inthe Civil Procedure Code. Learned Counsel relied on several casesto substantiate this submission. 1 will refer to the cases in chronologicalorder. In the case of Mudalihamy {Appellant~) V. Appuhamy & Others(RespondentsjU) at the trial the parties decided “to refer all mattersin dispute to the final arbitration of the court and the court to makeits order after inspection of. the place. The court inspected the landand made its order. In this case, Basnayakc, J. held as follows: “Ihave not been able to find nor has the learned counsel been., ableto refer me to any provision in the Civil Procedure Code underwhich a judge may step aside from the office of a judge and assumethe role of an arbitrator.” The proceedings in the District Courtwere set aside on this ground. The case of Cornetis Perera (Appellant)and Leo Perera (Respondent) (2> is a Divisional Bench Judgment. Inthat case the plaintiff filed an action claiming a cartway across thedefendant's land. In the course of the trial there was a challengeand counter challenge by respective counsel as to the correctness ofa statement made by the defendant. After these challenges ’it wasagreed between the parties that the judge should visit the place andmake a decision and that the parties would be bound by that order.On this agreement the learned District Judge visited the place andmade an order. The aggrieved party made an application in revisionto set aside that order. Basnayakc. C.J. held as follows: “A Courtof Law is a forum for the determination of disputes by a Judgeupon evidence and not upon challenge and counter challenge. TheCivil Procedure Code makes no provision for what happened in thiscase. Decision of a cause in the way in which this action was decidedis utterly foreign to our Code and 1 know of no system of CivilProcedure in which such a procedure finds acceptance.'.', In this case
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the proceedings in the District Court were set aside on two grounds:
on the ground set out above as stated by Basnayake, C.J. and
also on the ground that one party had made a mistake of fact
in coming to that agreement. Sansoni, J who wrote a separatejudgment agreed that the proceedings should be set aside on theground that the agreement between the parties was based on amistake of fact by one party. As regards the agreement to abide bythe decision of the Judge. Sansoni, J. has dissented with the othertwo judges and held as follows: “1 see nothing irregular or objectionablein the agreement itself. It is a common and well established methodof solving a dispute such as arose in this case.” As I will show later,this view of Sansoni. J. has prevailed and.the present state of lawis that. Learned Counsel for the petitioner has strongly relied onthe case of V. Thangarajasingham (Appellant) i>. M. lyampillai(Respondent). W In this case there was a dispute between the partiesfor a right of way and water course. In the course of the trial partiescame to an agreement and the learned District Judge recorded theagreement as follows: “The parties invite me to inspect and makean order as sole arbitrator, by which order they agree to abide.They sjgn the record signifying their consent.” On this agreementthe learned District Judge visited the place and made order. Tambiah,J. cited the case of Mudalihamy referred to by me above and reliedon the dicta of Basnayake, J. that the judge cannot step aside fromthe office of ajudge and assume the role of an arbitrator. On thisreasoning he held that the proceedings were invalid and set asidethe proceedings. In the case of S. Krishnan (Appellant) V. Vairy(Respondent)on the trial date the plaintiff and the first defendant
signed the record and consented to all matters arising and in issuebetween them to be decided by the Commissioner after the latterinspected the land. The learned Commissioner on this agreementinspected the land, heard submissions from Counsel and dismissedthe plaintiffs' action. Herat, J. set aside these proceedings on theground that the learned Commissioner has played the role of anarbitrator in terms of section 676(1) of the Civil Procedure Code. aqd also on another ground that the pleadings showed that complicatedquestions of law as to inheritance had to be decided and stated asfpllows: “How the learned Commissioner was going to decide thesequestions after an inspection of the land staggers one’s imagination. ”
It will be seen that in Mudalihamy's case the parties had decidedto refer the dispute to the arbitration of court. In Thangarajasingham s
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case the parties had invited the judge -to be the “sole arbitrator".In both these cases it was held that a judge cannot and should notplay the role of an arbitrator in terms of section 676 of the CivilProcedure Code. In Cornells Perera's case there was a challenge andcounter challenge and then an agreement to abide by the decisionof the court after an inspection The agreement reached in the casein .respect of which this application is made, has not been on thebasis that the judge was constituted an arbitrator to decide regardingthe right of way. Krishnan's case was a pure agreement by the partiesto abide by the decision of the judge after inspection. As shownearlier, the proceedingc were set aside on the ground that thisagreement constituted the judge an arbitrator and also on the additionalground that the complicated questions of law could not be decidedby an inspection. The facts of Krishnan's case fall in line with thefacts pertaining to the present application as regards the agreementto abide by the decision of the Judge. In Thangarajasingham’s case.Tambiah. J. referred to a number of cases from 1900 to 1960 whereinthe parties have agreed to abide by the decision of the court afteran inspection. This practice as is well known still continues. Thus,this mode of settlement has prevailed for eight decades.
The case most relevant to the decision of the -matter before thisCourt is a case which had not been referred to in the course of theargument. That is the case of Walliainrnai (Petitioner) V K. Selliah(Respondent). 00
In this case the plaintiff had filed an action alleging that thedefendants, who are owners of a land contiguous to the plaintiff’sland, built a tobacco curing shed on their land very close to theplaintiff's residential premises and caused a nuisance and that it wasa danger to the plaintiffs house as the shed was liable to catch fireand prayed for an order to demolish the tobacco curing shed. Onthe trial date both parties- arrived at this agreement – “It is agreedthe parties will abide by any order that this court makes, afterinspection with regard to the question as to whether the tobaccocuring shed in which tobacco is cured once or twice a year is injuriousto the health of the plaintiffs and other inmates of their house."Parties signed the record consenting to abide by the order that thecourt made after inspection. After this agreement the learned DistrictJudge visited the place and made his order. The defendants movedthe Supreme Court by wav of revision to set aside the agreement
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and the order made by the learned District Judge. Tennekoon, J.who delivered the judgment distinguished Thangarajasingham’s casereferred to above, and held that the proceedings in that case wereheld to be illegal as the parties agreed to make the judge the “solearbitrator” and stated as follows: “In the present case there was noattempt to appoint the judge an arbitrator. Parties to a civil actionare free to withdraw .defences taken in their pleadings; and if the'parties, fully represented by counsel, submit to Court that the onlyoutstanding differences between the parties are such as are capableof being elucidated and resolved by a local inspection, I can seenothing in the Code that prevents such a thing being done.” Tennekoon,J. held that inspection of a place by the judge is provided for insection 428 of the Civil Procedure Code, and as such, an agreementto abide by . the decision of the Judge after inspection was valid interms of this section. Tennekoon, J. referred to the like practice inthe English Courts and cited a case in which Lord Denning statedas, follows: “Every day practice in these courts shows that where thematter for decision is one of ordinary common sense, the Judge offact is entitled to form his own judgment on the real evidence of aview just as much as on the oral evidence of witnesses.”
Learned Counsel for the plaintiff – respondent supported theproceedings in this case based on section 408 of the Civil ProcedureCode “Adjustment of actions out of Court.” He was not able tocite any authority which justified an agreement as contested in thiscase in terms of this section. The corresponding section to section408 of our Civil Procedure Code in the Civil Procedure Code ofIndia (1908) is section R. 3.375 – Chitaley, 7th Edition, Volume IIPage 3481. In discussing this section Chitaley, at page 3488 states“An agreement to abide by the decision of the Court whether rightor wrong amounts to a compromise within this rule” and refers toseveral authorities for this proposition.
1 hold that the decision in Walliammai’s case is the decisionapplicable to the present application. This lays down that an agreementsuch as entered in the present case is a valid agreement.
Learned counsel for the petitioner in the written submissions hasraised the question “What exactly is meant by ‘inspection’ ”? basedon the Judge’s order dated 2.9.81 . He has submitted that the learnedJudge has gathered more facts from the plaintiff by questioning himat the inspection. That the learned Judge has also p?t.hr-' :*■
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from other persons who watched the inspection and who had nostatus. He urges these matters as a ground for setting aside thisorder. I must state that this argument was not raised at the* hearingof this application nor does it appear that a copy of the writtensubmissions was served on the respondent so as to enable therespondent to reply. As the order, of 2.9.81 shows that the learnedDistrict Judge has gathered some facts at the scene in. that mannerI will make my observations on this submission. It appears from thewritten submissions that the learned Counsel for the petitioner isseeking to equate an inspection of a scene by a civil judge to theinspection of a scene of crime by a High Court Judge in the presenceof the Jury. I do not think that such a str.jqt procedure as is observedin criminal cases, when the judge visits the scene with a jury, canbe made applicable to an inspection of a scene by a judge in a civilcase. The petitioner has not complained against this procedure inthe application made to this Court to wit: the petition and affidavitfiled. This inspection was made in the presence of the parties andtheir Attorneys-at-Law and no such objection has been raised at theinspection. When this matter came up for the order to be deliveredin open court on 2.9.81 no party has made a complaint of this natureto the judge. As such, this complaint now made as regards the natureof the proceedings at the scene is a belaied complaint. Further, thereis no real complaint by the parties regarding the inspection as setout by Tennekoon, J. in Walliammai's case referred to above.Tennekoon, J. has stated as follows: “There is here no complaintthat the parties or their lawyers were excluded when the judge madehis inspection or that they were not permitted to point out anythingof relevance; or that counsel were not given an opportunity of makingsubmissions after the inspection." 1
1 hold that the proceedings in this case which arc sought to beset aside to wit: the proceedings of 2.7.81 and 2.9.81, are validproceedings in accordance with the Civil Procedure Code. For thereasons given above, the application is dismissed with costs.
Tambiah, J: — I agree.
Application dismissedReferences:
(1949)39C.L.W.103
(I960)62N.L.R.413
(1962)64N.L.R.569
(1964)66N.L.R.66
(1970)73N.L.R.509