COURr OF APPEAL.WIGNESWARAN. J.JAYAVV1CKREMA. J.
CA (REV) 20/97.
DC COLOMBO 60S6/ZL08™ JUNE. 1998.
06™ JULY. 1998.
Ex-parte judgment – Eviction – Ex-parte Order vacated, and. Defendantdirected to Pie answer – No order on the application for restoration ofpossession – Civil Procedure Code S.839 – Duty ojCourt to correct the wrongcommitted by Court – Fraud – Status quo ante.
The Plaintiff Respondent: obtained an ex-parte judgment and theDefendant Petitioner was subsequently evicted. At the default, inquirycourt held that summons and decree had not been served on theDefendant-Petitioner and therefore vacated the ex-parte judgmententered, but did not: make any order on the Application for restoration ofpossession. The Defendant Petitioner sought to revise the said Order.
Per Wigneswaran. J.
"When a District: Court finds that summons/Decree have not been servedon the Defendant, and yet an ex-parte judgment had been illegally madeand thereafter writ, issued and executed, what must be the character ofthe legal order that should be made? It was the duty of the Court ex meremotu to have restored possession to the Defendant even if such a reliefhad not been asked for.
It is the duty of Court, to restore status quo ante where a fraud hadbeen perpetrated and an abuse of the process of court had beencommitted.
Application is under S.839 Civil Procedure Code, invoking theinherent powers of Court to make order as may be necessaiv to meet, theends of justice or to prevent abuse of process of Court.
Ariyananda v. Premachandra (Wigneswaran. J.)
APPLICATION in Revision from the Order of the District Court ofColombo.• •
Cases referred to :
Sivapathcdingam vs Sivasubramanlaml 19961 1 Sri L.R. 378 at 392'
Sirinivasa Them vs Sudassi Thero 63 NLR 31 at 34
Roger vs Comptoir D Escompte de Paris (1871) LR 3 PC 465
Wickremanayake vs Simon Appu 76 NLR 166 at 167
Mowjood vs Pussadeniya [ 1987] 2 Sri L.R. 287 at 298
Ananda Kasturiarachchi with Ms Medini de jSilva for Defendant-Petitioner.
P. Nagehdran P.C.. with C.W. Pannila and H.S. Perera for Plaintiff-Respondent.'
Cur. adv. ouIt.
October 4, 1999.
WIGNESWARAN,The Plaintiff-Respondent filed this action No. 6086/ZLon24. 05.1989 against the Defendant-Petitioner for declarationof title, ejectment, damages and costs in respect of premisesNo. 64, Maha Vidyala Mawatha, Colombo 13 containing inextent AO R2 PI 1. 12.
An exparte judgment was entered on 25. 05. 90. On21. 05. 91 the Defendant-Petitioner was evicted from thepremises in suit by the Fiscal. The Defendant-petitionerapplied to set aside the exparte Order and Decree and to orderrestoration of possession.
On 31. 12. 1996 the Additional District Judge, Colomboheld that summons and Decree had not been served on thePetitioner in this case and therefore vacated the expartejudgement entered against the Petitioner and directed thepetitioner to file answer on 06. 02. 1997. She did not make anyorder on the application for restoration of possession.
This Application for Revision No. 20/97 and Leave toAppeal application No. 6/97 were filed by the Defendant-
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1200012 Sri L.R.
Petitioner to obtain an order for restoration of possession andto bring back the status quo ante between parties.
The learned President’s Counsel for Plaintiff-Respondenthas objected to the restoration of possession on the followinggrounds:
The order dated 31.12.1996 is already under appealby the Plaintiff-Respondent (X2).
Another action D.C. Colombo Case No. 15598/L ispending before the District Court praying for therestoration of premises in suit and for damages.
An interlocutory appeal is pending as regardsdisallowing the production of a document in CaseNo. 15598/L before the Court of Appeal in C.A.L.A.Application No. 315/97.
On the same matter stated at c’ above RevisionApplication 854/96 is also pending.
The answer filed in case No. 6086/ZL (this case) alsoclaims relief for the same matter.
Under the circumstances this Court cannot be calledupon to invoke its inherent power under Section 839 of theCivil Procedure Code.
2 . Since the Defendant-Petitioner has invoked thejurisdiction of the District Court in the same case and alsocollaterally, the Defendant-Petitioner is estopped frominviting the Court of Appeal to exercise its inherent powersunder Section 839 of the Civil Procedure Code.
Ends of Justice would be affected if this Court at this stageintervenes when the same matter is being decided by theDistrict Court.
The Defendant-Petitioner has not disclosed the filing ofCase No. 15598/L and C.A.L.A. 315/96 and RevisionApplication No. 854/96. Therefore this application mustbe refused.
Ariyananda v. Premachandra (Wigneswaran, J.)
These observations would now be examined.
Basically all the submissions made by the learnedPresident’s Counsel on behalf of the Plaintiff-Respondent boildown to the question whether this Court could determine thismatter while applications for relief with regard to the samematter are pending else where.
The applications pending are not before a higher Court.They are either in the District Court or in this same Court onan interlocutory matter concerning the disallowing ,of adocument.
What is before this Court in the present applications, bothRevision (20/97) as well as Leave to Appeal (96/97), is a verybasic question. Technically it is irrelevant to the prejudice orhardship that may have been caused to the Defendant-Petitioner. It is a more fundamental question of law. When aDistrict Court finds that Summons/Decree have not beenserved on the Defendant and yet an exparte judgment hadbeen obtained illegally and thereafter Writ issued andexecuted to eject the Defendant, what must be the characterof the legal order that should be made? Mere setting aside ofthe Decree would have been sufficient if writ had notbeen issued. But when it was pointed out to Court that theDefendant had been dispossessed consequent to the issue ofa writ ab initio void it was the duty of the Court ex mere motuto have restored possession to the Defendant even if such arelief had not been asked for. The reason being that the processof court had been abused and it is the duty of Court to restorestatus quo ante where a fraud had been perpetrated and anabuse of the process of Court had been committed.
In this instance despite the application for restorationof possession the learned District Judge had been eitherindifferent, callous or ignorant of her primary duty-to put righta wrong committed in the name of the Court. No otherconsiderations need have been examined unless restorationwas impossible.
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The applications filed by the Defendant-petitioner are toobtain relief for the wrong committed to him. The duty of theCourt in this instance is to correct the wrong committed byCourt consequent to a fraud perpetrated on it and ensurestatus quo ante, prior to the wrong done. Justice S.B.Gunawardana in Sivapathalingam vs Sivasubramaniam!11 at392 stated as follows:
“It is the duty of the Courts and it is in their interests toensure that public confidence in them and in the orders andjudgment made by them is maintained and remainsundamaged. If an Order of the Court, which ultimately hasstanding behind it the coercive power of the State, causesdamage without justification, it becomes the duty of theCourt itself to undo that damage, if for no other reason, atleast in the' interest of the credibility of the Courts as anInstitution.”
Considering this case in the same spirit it becomesnecessary for us to view what has taken place in this case veryseriously and grant the Defendant-Respondent his reliefregardless of whether other applications are available orpending before the District Court or not. Those cases wouldautomatically resolve themselves the moment the correct stepthat should have been taken by the Learned District Judge on31. 12. 1996, is taken. An appeal against the order of thelearned Additional District Judge before this Court need notdeter this Court from taking the necessary step to completeand fulfil the order already made. If such order dated31. 12. 1996 has to be set aside in the future a fresh writ couldissue. We need not postpone taking a step in the correctdirection on account of an undetermined appeal.
The application before this Court now is one under section839 of the Civil Procedure Code invoking the inherent powerof this court to make order as may be necessary to meet theends of justice or to prevent abuse of process of Court.
Ariyanancla v. Premachandra (Wigneswaran. J.)
Already the process of court has been abused andcorrective measures have not been taken by the District Judgethough thereto prayed for. There is no doubt that the personaffected by the illegal writ must be put back in possession. Notto do so would be to perpetuate a fraud committed on Court.
Sansoni, J. in Sirinivasa Thero vs Sudassi The.ro,121 at 34stated as follows:
“Justice requires that he should be restored to thepossession he occupied before the invalid Order was made.for it is a rule tha t the Court will not permit a suitor to sufferby reason of its wrongful act. The Court will, so far aspossible, put him in the position which he would haveoccupied if the wrong Order had not been made. It is a powerwhich is inherent in the Court itself, and rests on theprinciple that a Court of Justice is under a duty to repair theinjury done to a party by its act. See Roger vs Comptoir D'Escompte de Paris131. The duty of the Court under these
circumstances can be carried out under its inherent powers"
So too Chief Justice H. N. G. Fernando, in Wickremanayakevs Simon Appul4> at 167 stated as follows:
“Justice therefore requires that the Plaintiff, who had beenplaced in possession in execution of a Decree which hadturned out to be invalid, should no longer be allowed tocontinue in possession of the land"
Chief Justice Sharvananda in Mawjood vs Pussadeniya151at 298 stated as follows:
“In as much as the Court acted without jurisdiction inissuing the Writ, the Appellant: who was dispossessed of thepremises in suit in consequence oj'the execution of the writis entitled to be restored to possession. Hence. I direct theDistrict Court to restore the Appellant to vacant possessionof the premises."
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In any event we find that D. C. Colombo No. 15598/L hadbeen filed in order to obtain a declaration that Deed No 9834dated 26/10/1988 attested by K. Rasanathan. Notary Public,Colombo is a nullity and to set it aside. The remedies soughttherefore in this case and case No. 15598/L are different.
We therefore find that the order made by theLearned Additional District Judge, Colombo on 31. 12. 1996is incomplete and therefore we allow the appeal. We make inaddition to the order already made by the.leamed AdditionalDistrict Judge, a further order in .terms of prayer (b) of theApplication restoring possession to the Defendant-Petitioner.
The Plaintiff-Respondent shall pay incurred costs in bothapplications (Revision No. 20/97 and C.A.L.A. No. 6/97) to theDefendant-Petitioner.
JAYAWICKRAMA, J. I agreeApplication allowed.