Sri Lanka Law deports
 2 SriL.R.
COURT OF APPEAL.
G. P. S. DE SILVA, J. AND SIVA SELLIAH, J.
A. APPLICATION No. 488/80.
C. COLOMBO CASE No. 10816/D.
Revision and/or Restitutio in integrum – Divorce action – Ex parte trial – Fraud inservice of summons and obtaining decree-Procedure that should be fokowed.
Where a decree entered in a divorce suit was sought to be set aside by way of anapplication for revision and/or restitutio in integrum on the ground of fraud committedby-
la) service of summons on being pointed out without verification by affidavit of theperson pointing out,
false pleadings and evidence.
getting an imposter to be present in Court in response to aBeged service of noticeof decree nisi.
Andradie v. Jayasakera Perera
Held (on a preliminary objection) –
The practice has grown and almost hardened into a rule that where a decree has beenentered ex parte in a.District Court and is sought to be set aside on any ground,application must in the first instance be made to that very Court and that it is only wherethe finding of the District Court on such application is not consistent with reason or theproper exercise of the Judge's discretion or where he has misdirected himself on thefacts or law that the Court of Appeal will grant the extraordinary relief by way of Revisionor Restitutio in Integrum.
Cases referred to:
Loku Monika v. Setenduhamy (1947) 48 NLP 353.
Dingihamy v. Don Bastian (1962) 65 NLP 549.
Nagappan v. Lankabarana Estates Ltd. (1971) 75NLP488.491.
Jayasuriya v. Kotalawala (1922) 23 NLR 511.
Orathinahamy v. Romanis (1900) 1 Browne’s Pep. 188, 189.
Gunawardene v. Kelaart (1947) 48 NLP 522, 524.
Hatxbu Lebbe v. Punchi Ettena (1894) 3 CLP 84,85.
Gargial v. Somasunderam Chatty (1905) 9 NLP 26.
Weeraratne v. Secretary. D. C. BaduHa (1920) 2 C. L. Pec. 180; 8 C. W. P. 95.
Caldera v. Santiagopillai(1920) 22 NLP 155. 158.
Sayedoo Mohamado v. Maula Abubakkar (1926) 28 NLJP 58. 63.
APPLICATION for Revision and/or Restitutio in Integrum for setting aside of decree nisiand decree absolute entered in District Court.
D. Wikremanayake with A. W. Atukorala for petitioner.
S. Mahenthiran for plaintiff-respondent.
Cur. adv. vult.
July 12, 1985.
SIVA SELLIAH, J.
This is an application for Revision and/or Restitutio in Integrum inwhich the petitioner who was the wife of the respondent seeks torevise the orders made by the learned District Judge of Colombo incase No. 10816/D in regard to the holding of an ex parte trial,entering decree nisi and absolute for divorce against her when she hadno notice whatever of the action and to set aside the proceedings•subsequent to the filing of plaint by the respondent and to permit thepetitioner to file answer and proceed with the case.
Sri Lanka Law Reports
 2 Sn L.H.
The facts material to the application are as follows :
The parties married on 22.2.74 after which they lived together andon 10.8.75 the respondent deserted her. The petitioner theninstituted an action for maintenance in case No. 92868/A (vide A) inthe M. C. Panadura on 13.1.76 and at the inquiry held on 13.4.76the petitioner offered to be reconciled to the respondent but he hadrefused alleging immoral conduct on her part. The case waspostponed and on 9.7.76 the respondent agreed to pay her monthlymaintenance in a sum of Rs. 100 pending a divorce case filed by himon 8.7.76 in D. C. Colombo 1/787/D (vide A1). The petitioner filedanswer stating she was prepared to live with him and the respondentwithdrew the action. In the meantime the respondent continued to payher maintenance until 26.7.77 on which date both agreed to livetogether and they so lived together at the house of her parents. On
the maintenance case was cal.led again and the respondentrefused to live with the petitioner and was directed to resume paymentof maintenance – he continued to do so until September 1979 and ashe failed to pay thereafter she moved to have the case called and themaintenance case was transferred to D. C. Panadura 195/M whichwas the Family Court. Thereafter when the maintenance case wascalled on 26.3.80, the respondent produced a document purportingto be the Decree Absolute for Divorce in case No. 10816/D of the
C. Colombo granting the respondent a-divorce from the petitionerin which Decree Absolute had been entered and he accordingly movedthat the maintenance case against him be dismissed. As she wastaken completely by surprise by this divorce action of which she hadhad no notice, the maintenance case was postponed for 7.5.80 toenable her to verify matters. Thereafter on examination of the caserecords in .case No. 1/787/D (A1) which had been dismissed andcase No. 10816/D (A2), of which certified copies were issued to herin April 1980 she found to her entire surprise the following
Case No. 10816/D had been instituted on 11.8.76 and therespondent had alleged refusal by her of conjugal rights to himand non-consummation of marriage and that the petitionercontinued to be still a virgin and that as a result of constantquarrels on this ground he was compelled to leave her on• 10.8.75. In this application before us she draws reference tohis entirely contrary position in the Maintenance Case (A) wherehe has refijsed to live with her alleging immoral conduct on herpart.
Andradie v. Jayasekera Perera (Siva SeWah, J )
The respondent had stated that he had pointed out thepetitioner to the-fiscal process server and that summons wasserved on her on 16.12.78.
In this application it has been brought to our notice that there hasbeen no affidavit of identity to say that summons had been served onher upon being pointed out by.him.
The Journal entries revealed that the petitioner was not presentor represented and that ex parte trial was held on 6.2.79 andthe respondent had stated he had left her on 10.8.75.
The Process Server reported that Decree Nisi had been servedon 15.3.79.
The case was taken up at the expiry of 3 months on 15.6.79and the petitioner was recorded as having been present on thatdate and Decree Absolute has been entered.
It was her contention accordingly that a gross fraud had beenperpetrated on her and therefore she made this application forRevision and/or Restitutio in Integrum. The state of affairs revealed inparas (a)-(e) above regarding the institution of case No. 10816/D fordivorce and the entering of Decree Absolute without the knowledgeand participation of the petitioner does, if in fact correct, produceserious disquiet regarding the machinery involving the process of theDistrict Court and screams for investigation. At the hearing before us apreliminary objection was taken that the petitioner could not be heard,much less succeed in this application, as she has sought toshortcircuit matters without in the first instance bringing these mattersto the notice of the District Court and seeking to have the order for exparte trial, Decree Nisi and Absolute set aside in that forum on theground that she was unaware of these proceedings and that she neverhad notice of them and satisfying that court of the fact that she hadnever been served with summons or the Decree Nisi and had not beenpresent when Decree Absolute was entered in the case and thereforethat these orders had been made without jurisdiction and were nulland void, and that not having done so she could not invoke the powersof Revision and/or Restitutio in Integrum which are extraordinaryremedies which should not be exercised by this Court when theapplicant could have had relief in the District Court. The learnedCounsel for respondent quoted a long list of cases in support of thiscontention and cited the following cases : Loku Menika v.Selenduhamy (1), Dmgihamy v. Don Bastian (2), Nagappan v.Lankabarana Estates Ltd. (3), CA 2395/80 CA Minutes of 8.9.81 ;CA 592/79 CA Minutes of 2.11.81 ; CA 734 CA Minutes of 5.7,83 :
Sri Lanka Law Reports
 2 SriL.R.
CA LA 89/83 CA Minutes of 6.4.84 ; CA 306/82 CA Minutes of21.9.84. He contended that, these decisions clearly showed that itwas a long established practice that the petitioner must in thecircumstances first seek her remedy in the District Court beforecoming to this court and therefore this application must fail.
Against these contentions and authorities it was the contention ofthe learned Counsel for petitioner that where a fraud has beencommitted, the remedy was by way of an application for Restitutio inIntegrum or action for damages. He contended that the petitionernever, wanted a divorce, that the respondent's contradictorycontention about her in the maintenance action and in the divorceaction already referred to above, his payment of maintenance evenafter the divorce decree had been entered all showed that therespondent had obtained a decree for divorce behind her back and onthe single authority quoted by him in the case of Jayasuriya v.Kotalawala (4) contended that Restitutio in Integrum or an action fordamages was the proper remedy. The arguments raised by him aboveare clear; but the fact remains that the record in the divorce action10816/D (A2) shows equally clearly that summons was served on thepetitioner by being pointed out, that as she had not appeared ex partetrial was held and Decree Nisi was entered and reportedly served onher and on 15.6.79 her presence recorded end Decree Absoluteentered. Now these are all matters of record. No doubt ordinaryprudence dictates that where summons is served on being pointed outan affidavit of identity by the person so pointing out should befiled – this has.not been done in this case, and in the circumstances itmay well be that some person other than the petitioner had beenpointed out ; but so long as it remains in the record of the action thatsummons had been served and Decree Nisi served and DecreeAbsolute entered in her presence the record and the entries and theaction of the District Judge cannot be questioned. It has been held inthe cases Orathinahamy v. Romanis (5) and Gunawardene v. Keiaart(6) that the record maintained by the judge cannot be impeached byallegations or affidavits and that "the prospect is an appalling one if inevery appeal it is open to the appellant to contest the correctness ofthe record". Gunawardena v, Keiaart Isupra) Thus in the face of whatappears on the record it is not possible for this court to controvert therecord of the District Court unless in the first instance material hasbeen provided before the Disnct Court itself that the entries pertainingto the service of summons and the service of Decree Nisi and entering
Andradie v. Jayasekera Perera (Siva Seltiah, J.)
of Decree Absolute are incorrect and mere fictions and unless theDistrict Judge is invoked in the first instance to set aside all theproceedings and orders made before him on the ground of a fraud thathas been perpetrated rendering all those proceedings and orders ultravires and null and void. All these are questions of fact as is thequestion of fraud on which evidence will appear necessary and thepetitioner herself should be made available for cross-examination andconsequently the judge must make his findings on questions of factbefore this court can be invited on inferences and conduct to hold thatthere has been fraud. I am also of the view on the long line of casesquoted by the learned counsel for respondent that the practice hasgrown and almost hardened into a rule that where a decree has beenentered ex parte in the District Court and is sought to be set aside onany ground, application must in the first instance be made to that verycourt and that it is only where the finding of the District Court on suchapplication is not consistent with reason or the proper exercise of thejudge's discretion or where he has misdirected himself on the facts orlaw will this court grant extraordinary relief by way of Revision orRestitutio in Integrum which are extraordinary remedies.
In the case of Loku Menika v. Selenduhamy (supra) Dias, J. havingconsidered the cases of Habibu Lebbe v. Punchi Ettena (7), Gargial v.Somasunderam Cherry (8), Weeraratne v. Secretary, D.C. Badulla(9),Caldera v. SantiagopiUai (10), Sayadoo Mohamedo v. MaulaAbubakkartf 1) followed these decisions and held –
"where an order is made ex parte the proper procedure to beadopted by the person against whom that order has been made is,in the first instance, to move the court which made the order to setit aside , such an application would not be in terms of the CriminalProcedure Code but is one which is a rule of practice which hasbecome deeply ingrained in the legal system of Ceylon'
These decisions have consistently been followed in the later casesquoted earlier in the body of this judgment and establish a procedureand practice which has taken deep root and should not be lightlydisturbed. I therefore hold that the preliminary objection raised bylearned Counsel for the respondent is entitled to succeed and dismissthis application. There will be no costs of this application.
G. P. S. DE SILVA, J. -1 agree.
-ANDRADIE v. JAYASEKERA PERERA