015-SLLR-SLLR-2010-V-1-BENGAMUWA-DHAMMALOKA-THERO-v.-DR.-CYRIL-ANTON-BALASURIYA.pdf

Court had made Order giving a final date for the 1st defen-dant’s answer, but had made no order regarding the serviceof summons on the 2nd defendant. Even thereafter noorder had been made for the issue of summons on the 2nddefendant, and the appellant had not taken any steps toissue summons on him. On 27.03.1997, the case was fixedfor ex-parte trial for 24.04.1997 on which day the case wastaken for such trial.
Learned President’s Counsel for the respondent con-tended that the said 2nd defendant was not among the livingon the date, when the ex-parte judgment was delivered on24.04.1997 as he had died on 29.12.1995.
. On that day, the District
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Accordingly, it is not disputed that the Decree had beenentered against the 2nd defendant, without serving sum-mons on him and at a time he was not among the living andtherefore the question in issue as to whether revision wasavailable for the respondent should be examined in the abovebackground.
Powers of revision of the Court of Appeal is clearlydefined in Section 753 of the Civil Procedure Code. The saidSection is as follows:
*The Court of Appeal may, of its own motion or on anyapplication made, call for and examine the record of anycase, whether already tried or pending trial, in any Court,tribunal or other institution for the purpose of satisfyingitself as to the legality or propriety of any judgmentor order passed therein, or as to the regularity of theproceedings of such Court, tribunal or other institution,and may upon revision of the case brought before it passany judgment or make any order thereon, as the interestof justice may require.”
The applicability of the powers of revision of the Courtof Appeal in terms of Section 753 of the Civil ProcedureCode had been discussed in several decisions. The power ofrevision, which is well known as an extraordinary power, isindependent from the usual appellate jurisdiction. The basisfor such extraordinary power vested in a Court with thejurisdiction for revision was clearly examined by Sansoni,C.J., in Marian Beebee v. Seyad Mohamed et.aP1, where itwas stated that, the object of the power of revision is thedue administration of justice and the correction of errors,sometimes committed by the Court itself, in order to avoid amiscarriage of justice.
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The exercise of the revisionaiy power of the Court ofAppeal and its restrictions, if any, were examined in detail inRustom v. Hapangama and Co.'4'. In that case, the plaintiff-petitioner had filed an application for revision of anorder of the District Court, which allowed the defendant anopportunity to file his answer and defend the action andholding that an application by the plaintiff-petitioner forexparte trial should not be allowed. A preliminary objectionwas raised by the defendant-respondent that the plaintiff-petitioner cannot invoke the revisionary powers of the Courtof Appeal as he had the right of appeal against the said orderof the Learned District Judge. Considering the saidobjection, it was held that the powers by way of revisionconferred on the Appellate Court are very wide and can beexercised, whether an appeal has been taken against anorder of the original Court or not. It was also stated that suchrevisionary powers could be exercised only in exceptionalcircumstances and the types of such exceptional circum-stances would depend on the facts of each case. Consideringthe facts and circumstances of the case in Rustom v.Hapangama and Co. (supra), the Court held that there wereno such exceptional circumstances disclosed as would causethe Appellate Court to exercise its discretion and grantrelief by way of revision. However it is noteworthy to mentionthat it was also clearly held that, in a situation where therehad been something illegal about the Order made by the trialJudge, which had deprived the petitioner of his rights, theAppellate Court could exercise its revisionary jurisdiction.
There had been other instances, where the Court hadheld that the Appellate Court has the power in revision toset aside an erroneous decision of the District Court. For
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instance in Sinnathangam v. Meeramohaideen(S) consideringthe question of revision, T. S. Fernando, J. stated that,
“The Court possesses the power to set aside, in revision,an erroneous decision of the District Court in anappropriate case even though an appeal against suchdecision has been correctly held to have abated on theground of non-compliance with some of the technicalrequirements in respect of the notice of security.”
As stated earlier, learned President’s Counsel for therespondent, contended that the 2nd defendant in the DistrictCourt case had died before the Order was made. A similarposition was considered in Marian Beebee v. Seyed Mohamed(supra), where it was clearly stated that if a party to the ac-tion was dead, and his estate was not represented at the timethe adjudication as to title was made, his estate will not bebound by any decision entered thereafter. Further and moreimportantly, Sansoni, C. J., in Marian Beebee v. SeyedMohamed (supra) had clearly stated the reasons for theexercise of the extraordinary power of revisionary jurisdictionby Appellate Courts. In the words of Sansoni, C. J.,
“The power of revision is an extraordinary power whichis quite independent of and distinct from the appellatejurisdiction of this Court. Its object is the due adminis-tration of justice and the correction of errors, sometimescommitted by this Court itself, in order to avoid miscar-riages of justice,”
This position was further strengthened in RasheedAli v. Mohamed AU6 where it was clearly stated thatthe power of revision vested in the Court of appealis very wide and the Court can in a fit case exercise thatpower irrespective of the fact that whether or not an appeallies against the decision in question.
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It is not disputed that the learned District Judge hadmade an Order dismissing the claim preferred by the respon-dent in terms of Section 328 of the Civil Procedure Code andagainst that Order the respondent had come before the Courtof Appeal by way of revision. It is also not disputed that,under Section 329 of the Civil Procedure Code no appealshall lie from any order made under Section 326, 327 or 328of the Civil Procedure Code against any party other than thejudgment – debtor.
Considering all the aforementioned facts and circum-stances, it is apparent that, the decision of the District Courtwas not only erroneous, but also amounts to a miscarriageof justice. In such circumstances, notwithstanding theprovisions contained in Section 329 of the Civil ProcedureCode, the Court of Appeal is empowered to set right anerroneous decision of the District Court, for the purposeof exercising due administration of justice and for suchpurpose could exercise its power of revision. Accordingly,the respondent, although he had made an application underSection 328 of the Civil Procedure Code, against whom anOrder was made by the District Court, was entitled to canvassthe correctness of the Order made by the District Judge, byway of an application in Revision in the Court of Appeal.
Both 2nd and 3rd questions of law deal with similar issues,which are as follows:
Whether in any event the Court of Appeal could in theexercise of revisionary jurisdiction in relation to aninquiry under Section 328 of the Civil Procedure Codehold that the Decree entered in the case against oneof the parties (not being the petitioner) is void?
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Whether in an inquiry under Section 328 of the CivilProcedure Code the Court could hold that the Decreeentered against the defendants is void?
Since both these questions are raising similar issuesregarding the judgment of the Court of Appeal and theinherent powers of the Court in relation to an inquiry underSection 328, both questions would be examined together.
As stated in detail under the first question of law, theDecree was entered against the 2nd defendant without servingsummons on him and more importantly at a time when the2nd defendant was dead. What could be the position, otherthan being regarded as a nullity of a Decree, which wasentered against a dead man on whom summons had neverbeen served? Although the learned Counsel for the appel-lant contended quite strenuously that the Court of appealcould not have held that the ex-parte Decree entered by thelearned District Judge is null and void in the exercise of itsrevisionary jurisdiction, it is to be borne in mind that the saidargument could be entertained only if the Order of theDistrict Judge was a valid decision. As referred to earlier, thebasic and the vital question in issue is as to the validity of theOrder made by the District Judge, when there was an ex-partejudgment delivered and the Decree entered against the 2nddefendant, on whom the summons were not served and whohad been dead well before the decision was entered againsthim. In such a situation there should be only one prime dutycast upon the Court, which hears an application made by anaggrieved party. Such a Court would be duty bound to makeOrders for the due administration of justice and therefore torepair the injury and to undo the damage.
It is important to be borne in mind that although theprocedure laid down in the Civil Procedure Code is binding on
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all Courts, the said Code is not exhaustive as to the powersof a Court with regard to matters of procedure. Even at atime when there are no provisions that would be directlyapplicable to a situation, the Court has the inherent authorityto make Order in the interest of due administration ofjustice. Considering such a situation, in Victor de Silvaet.al v. Jinadasa de Silva et.al7*, Manicavasagar, J. saidthat,
“Our Code is not exhaustive on all matters; one cannotexpect a Code to provide for every situation andcontingency; if there be no provision, it is the duty ofthe Judge and it lies within his inherent power, to makesuch order as the justice of the case requires.”
When the need arises on situations, where no directsection could be found in the Civil Procedure Code, it isthe duty of a Judge to base his decision on sound generalprinciples, which are not in conflict with any otherprinciples or with the intention of the Legislature. InSirinivasa Thero v. Sudassi Therd6), the Court clearlyexpressed the view that it is a rule that a Court of Justice, willnot permit a suitor to suffer by reason of its own wrongful act,and it is under a duty to use its inherent power to repair theinjury done to a party by its act. In that matter a Buddhistpriest had sued three other priests for a declaration that hewas entitled to the office of Viharadhipathi, incumbent andtrustee of a Vihara and Pansala and to the management andcontrol of their temporalities. He did not ask for possessionof any property. He obtained judgment and Decree as prayedfor and upon his application to execute the Decree, a writ ofpossession was issued in respect of a room in the Pansala.It was held, inter alia, that inasmuch as the Court actedwithout jurisdiction in issuing Writ, the person, who wasdispossessed of property in consequence of the execution of
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the Writ was entitled to be restored to possession. In such acase a Court of Justice has its inherent power to repair theinjury done to a party by its act. Considering the inherentpower of the Court in a situation, where an obvious injuryhas occurred, Sansoni, J., (as he then was) in SiritiivasaThem (supra) had stated that,
“Justice requires that he should be restored to theposition he occupied before the invalid-order was made,for it is a rule that the Court will not permit a suitor tosuffer by reason of its wrongful act. The Court will, so faras possible, put him in the position which he would haveoccupied if the wrong order had not been made. It is apower which is inherent in the Court itself, and rests onthe principle that a Court of Justice is under a duty torepair the injury done to a party by its act
The duty of the Court under these circumstances can becarried out under inherent powers.
I would, therefore, direct that the plaintiff be restored topossession of the room which he was occupying in theHappola Pansala prior to the execution of the writ in caseNo. L. 3167.”
The aforementioned principle set out by Sansoni, J., (ashe then was) in SirinivaSa Thero v. Sudassi Thero (supra) wascited with approved by G. P. S. de Silva, J., (as he then was)in Jane Nona v. JayasuriycPK
In Jane Nona’s case, the defendant was already deadwhen the District Judge made an Order allowing plaintiff’sapplication for execution of the Decree pending appeal. Inconsequence, the deceased defendant’s eighty one (81) yearold wife (the petitioner in that application) was ejected fromthe premises in suit. The petitioner sought revisionary powersof Court to have himself restored to possession of the
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premises on the basis of unlawful ejectment. Considering thefact that the defendant was already dead when the DistrictJudge made the Order allowing the plaintiffs application,Court of Appeal held that as the Order directing Writ ofexecution to be issued was made the defendant had died,it was a nullity and was therefore set aside. Further it washeld that in the exercise of the inherent powers of the Court,which is under a duty to repair the injury done to a party byits acts, the petitioner should be restored to possession of thepremises in suit.
Again in Mowjood v. Pussadeniydw Sharvananda, CJ.,referring to the decision in Sirinivasa Thero v. SudassiThero (supra) held that as the Court had acted withoutjurisdiction in issuing the Writ, the appellant who wasdispossessed of the premises in suit in consequenceof the execution of the Writ is entitled to restoration topossession. Later in Ariyananda v. PremachandraiUWigneswaran, J., expressed a similar view regardingthe duty of Court to correct the wrong committed byits decision. Considering the decisions in SirinivasaThero v. Sudassi Thero (supra), Wickramanayake v. SimonAppUx2 Mowjood v. Pussadeniya (supra) and Sivapathal-ingam v. Sivasubramaniam(13), it was held that,
“When a District Court finds that summons/Decree havenot been served on the defendant and yet an ex-partejudgment had been illegally made and thereafter writissued and executed, when must be the character of thelegal order that should be made? It was the duly of theCourt ex mere motu to have restored possession to thedefendant even if such a relief had not been asked for.”
It was also held that it is the duty of Court to restorestatus quo ante where a fraud had been perpetrated and asabuse of the process of Court had been committed.
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Learned Counsel for the appellant contended that aparty whose claim under Section 328 of the Civil ProcedureCode has been rejected cannot seek relief by way ofrevision where he has not availed himself of the remedyprovided by Section 327 of the Civil Procedure Code.This position is not disputed at all and even the Court ofAppeal had been in agreement with this contention.
However, the issue that has to be considered is whetherCourt could take into account the applicability of Sections328 and 329 of the Civil Procedure Code under the circum-stances which prevailed in the present case. As referred toearlier, in terms of Section 329, there is no provision for anappeal against the Order made under Section 328 of theCivil Procedure Code other than by the judgment-debtor.However, when the respondent had been dispossessed due toa Decree which had been issued without serving summons tothe 2nd defendant who was dead, such a Decree undoubtedlymust be regarded as a nullity and should be set aside. In thecircumstances it becomes necessary and the Court is undera duty to exercise its inherent powers to repair the injurycaused and to meet the ends of justice.
Accordingly the Court of Appeal was correct in itsdecision when it held that the Decree entered in the caseagainst the 2nd defendant was void.
For the reasons aforesaid, I answer all the questionsof law on which special leave to appeal was granted in thenegative. The judgment of the Court of Appeal dated12.11.2001 is therefore affirmed. This application isaccordingly dismissed. I make no order as to costs.
MARSOOF, J. – I agree.
BALAPATABENDI, J. – I agree.
Appeal dismissed.