The plaintiff said : (at page 5 of proceedings dated 28.05.2001)
Caroline Nona and Others
vs Pedrick Singho and Others (Wimalachandra, J.)
included in the lot allotted to the 1 st defendant and the 1 st defendant hadbeen called upon to pay a sum of Rs. 193,583 to the 2nd defendant, whichincluded the value of the house amounting to Rs.178,000. The 1 st defendantinvokes the revisionary jurisdiction of this Court to remedy this situation.
In these circumstances, without an iota of evidence that the said houseand toilet belongs to the 2nd defendant, the learned Judge had granted thesaid house and toilet to the 2nd defendant. In the circumstances, in myview the decision of the District Judge amounts to a miscarriage of justiceand that part of the judgment granting the house and toilet to the 2nddefendant is wrong ex-facie. This Court possesses the power to set asidein revision an erroneous decision of the District Court which amounts to amiscarriage of justice in an appropriate case even though an appeal againstsuch decision has been available to the petitioner and he has not resortedto that remedy..It was held in the case of Rustom vs. Hapangama andCo.(1> that “the powers by way of revision conferred on the Appellate Courtare very wide and can be exercised whether an appeal has been takenagainst an order of the original Court or not. However, such powers wouldbe exercised only in exceptional circumstances where an appeal lay andas to what such exceptional circumstances are is dependant on the factsof each case.”
In this situation, exceptional circumstances do exist for this Court toexercise its revisionary jurisdiction having regard to the facts andcircumstances of this case. It is my view that non – interference by this
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Court will cause a denial of justice and irremediable harm to the 1stdefendant.
It was held in the case of Soysa vs. Silva(2) that the power given to asuperior Court by way of revision is wide enough to give it the right torevise any order made by an original Court. Its object is the dueadministration of justice and correction of errors sometimes committed bythe Court itself, in order to avoid miscarriage of justice.
The next question to be decided is whether the 1 st defendant is guiltyof laches. The judgment and the interlocutory decree of the aforesaidpartition action had been entered on 01.06.2002. The 1st defendant hadmade the application to the District Court to amend the judgment and theinterlocutory decree on 17.07.2003 when the final plan No.1401 marked‘P6’ had come up for consideration on 28.01.2004 with regard to the schemeof partition proposed by the surveyor. The 1 st defendant made an applicationto the Court to amend the interlocutory decree and the judgment andsought that the portion of the interlocutory decree entered in this casegranting the house to the 2nd defendant be set aside. The learned counselfor the 1 st defendant submitted that this application in revision was filedon 04.03.2004. and the 1 st defendant had sought to amend the interlocutorydecree dated 01.06.2001 after a lapse of two years and ten months.
The question whether delay is fatal to an application in revision dependson the facts and circumstances of the case. If the impugned order or that
Caroline Nona and Others
vs Pedrick Singho and Others (Wimalachandra, J.)
part of the judgment is manifestly erroneous and is likely to cause graveinjustice, the Court should not reject the application on the ground ofdelay alone.
In the case of Biso Menike Vs. Cyril de Alwis<3> Sharvartanda, J. (asthen he was) at 379 observed :
“When the Court has examined the record and is satisfied theorder complained of is manifestly erroneous or withoutjurisdiction the Court would be loathe to allow the mischief ofthe order to continue and reject the application simply on theground of delay, unless there are very extraordinary reasons tojustify such rejection. Where the authority concerned has beenacting altogether without basic jurisdiction, the Court may grantrelief in spite of the delay unless the conduct of the party showsthat he has approbated the usurpation of jurisdiction. In anysuch event, the explanation of the delay should be consideredsympathetically.”
In the instant case the learned Judge has completely disregarded theevidence adduced at the trial with regard to the ownership of the saidhouse and toilet and held that the house should belong to the 2nd defendant.This finding of the District judge is manifestly erroneous and has deprivedthe 1st defendant or his right to the said house, in the circumstances itappears that the 1 st defendant has made out a strong case amounting toa positive miscarriage of justice. In this situation, in my view, despite the 2
2- CM 7221
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fact that there is a delay on the part of the 1st defendant in making thisapplication , as the order challenged discloses a miscarriage of justicewhich shocks the conscience of Court since it had deprived the 1stdefendant of some right, justice of the case requires the use of the discretionof this Court to excuse her delay in coming to court.
It now remains to consider the preliminary objection raised by thelearned counsel for the 2nd defendant with regard to the non compliancewith Rule 3 (1) of the Court of Appeal Rules. The learned counsel submittedthat the 1 st defendant had failed to comply with Rule 3(1) of the Court ofAppeal (Appellate Procedure) Rules 1990 in failing to annex certified copiesof the application made to the District Court seeking to amend theinterlocutory decree entered in this action. The aforesaid Rule 3(1) is similarto Rule 46 of the Supreme Court Rules.
The rules of procedure have been devised with the sole object ofeliminating delay and facilitating due administration of justice. On anexamination of the decisions made by the Appellate Courts, it appearsthat the Superior Courts have time and again emphasized the mandatorynature of the observance of the Appellate Court Rules, it seems to me thatthe observance of the Rules is necessary to understand the order soughtto be revised and to place it in its proper context. In my view, if this Courtis unable to understand the order sought to be revised in the absence ofthe relevant documents, it is only then the failure to observe the Rules andthe failure to file the relevant documents will amount to a fatal irregularitywhich would result in the dismissal of the petition.
Caroline Nona and Others
vs Pedrick Singho and Others (Wimalachandra, J.)
In the case of Kiriwanthe vs. Navaratnef4’ Mark Fernando, J. held thatthe weight of authority thus favours the view that while these rules (AppealProcedure Rules) must be complied with, the law does not require automaticdismissal of the application or appeal of the party in default. Theconsequence of non – compliance (by reason of impossibility or for anyother reason) is a matter falling within the discretion of the Court, to beexercised after considering the nature of the default, as well as the excuseor explanation, therefore, in the context of the object of the particular rule.
At the trial the parties have settled their disputes and had led theevidence of the plaintiff who was the only witness who gave evidence. Theplaintiff in giving evidence had said that the house that was in thepossession of the 2nd defendant is no longeron the ground. At page 5 ofthe proceedings dated 28.05.2001 the plaintiff who is the father of the 2nddefendant had said;

The preliminary plan and the report of the surveyor were marked P2 andP2(a) respectively. It is to be seen that the only house on the land wasclaimed by the 1st defendant – petitioner and no one else. However,notwithstanding the evidence given at the trial the only house on the landwas given to the 2nd defendant. The learned Judge has failed to considerthe evidence given by the only witness, the plaintiff who said that the 2nd
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defendant’s house is no longer in existence. In the circumstances, I am ofthe view that the granting of the house to the 2nd defendant is an error onthe face of the record which amounts to a miscarriage of justice which isan exceptional circumstance which warrants the exercise of the revisionarypowers of this Court. In this application in revision, though the petitionerhas not made available to Court a copy of the application made to theDistrict Court by which she sought the amendment of the interlocutorydecree, the copies of all the relevant documents are before this Court tounderstand the impugned order. The proceedings of the trial was producedmarked ”P4". The copies of the final partition plan and the judgment wereproduced marked P5, P6, and P6A respectively. The submissions madeby the counsel at the inquiry were filed marked “P7”. In my view thesedocuments are sufficient to understand the order sought to be revised.
The preliminary objection raised by the respondent is overruled andacting in revision we set aside that part of the interlocutory decree enteredin this case allotting the said house and the toilet to the 2nd defendantand we also set aside that part of the final decree granting compensationof Rs.178,000 being the value of the said house, to the 2nd defendant -respondent.
We make no order as to the costs of this inquiry.
ANDREW SOMAWANSA, J. (P/C A) – / agree.
Application allowed.