001-SLLR-SLLR-2002-V-2-CAROLINE-PERERA-AND-ANOTHER-v.-MARTIN-PERERA-AND-ANOTHER.pdf
CA
Caroline Perera and Another v. Martin Perera and Another
1
CAROLINE PERERA AND ANOTHER
v.MARTIN PERERA AND ANOTHER
COURT OF APPEALWEERASURIYA, J., (P/CA) ANDDISSANAYAKE, J.
CA NO. 872/93 (F)
DC KALUTARA NO. 5701/PMAY 03, 2001JUNE 08, 2001
Partition Law No. 21 of 1977 – s. 48 – Settlement – Can the plaintiff abandonthe position pleaded – No investigation of title – Duty of Court to use its inherentpower to repair injuries done by its act – Civil Procedure Code s. 91, s. 408,s. 839.
The plaintiff-appellant instituted action to partition the corpus and averredthat one A, one of original owners, died leaving behind the 1st defendant-respondent. The 1st defendant-respondent did not file a Statement of Claim. Atthe midst of the trial, the parties who were present came to a settlement whichamounted to complete reversal of the earlier position, the position that rights ofA devolved on the 1st defendant-respondent was abandoned. After judgment andinterlocutory decree, the 1st defendant-respondent sought to have the interlocutorydecree amended on account of the denial of his rights to the land. The DistrictCourt allowed the application.
Held:
Though the 1st defendant-respondent was precluded from raising acontest or disputing the claim of any party without leave of Court due tohis default in filing a Statement of Claim, he is not precluded from relyingon the title pleaded by the plaintiff-appellant.
The 1st defendant-respondent cannot be deprived of his rights by a privatearrangement made by the plaintiff-respondent with other defendant-respondents, the Court has failed in its duty to examine title.
It is possible for parties to a partition action to compromise theirdisputes, provided the Court has fully investigated the title of each partyand satisfied itself as to their respective rights.
2
Sri Lanka Law Reports
[2002] 2 Sri LR.
A Court whose act has caused injury to a suitor, has an inherent powerto make restitution – this power is exercisable by a Court of originaljurisdiction as well as by a superior Court.
APPEAL from the judgment of the District Court of Kalutara.
Cases referred to:
Kumarihamy v. Weragama – 43 NLR 265.
Babyhamine v. Jamis – 46 CLW 5.
Salim v. Santhiya – 69 NLR 490 at 492.
Potman v. Inspector of Police – 74 NLR 115 at 117.
Sivapathalingam v. Sivasubramaniam – 1990 1 SLR 378.
C. J. Laduwahetty for 1st and 2nd plaintiff-appellants.
Bimal Rajapakse for 3rd, 4th, 8tn and 9th defendant-respondents.
W. Prematilake for 1st defendant-respondent.
Cur. adv. vult.
August 31, 2001
WEERASURIYA, J. (P/CA)
This is an appeal arising from the order of the District Judge dated18. 11. 1993, directing to amend the interlocutory decree enteredin this case.
The amendment of the interlocutory decree was sought by the 1stdefendant-respondent on account of the denial of his rights to theland in suit. The plaintiff-appellant in his plaint dated 24. 07. 1989,averred that Agiris Perera who was entitled to 5/3360 undividedrights, died leaving 1st defendant-respondent (Martin Perera). The 1stdefendant-respondent failed to file a statement of claim and was,therefore, precluded from raising a contest at the trial or disputingthe claim of any party except with leave of Court.
CA
Caroline Perera and Another v. Martin Perera and Another
(Weerasuriya, J. P/CA)
3
Initially, the plaintiff-appellant relied on the pedigree as pleadedin the plaint to establish his rights as evident from his testimony.However, in the midst of the trial the parties who were present andrepresented by Counsel came to a settlement which amounted to acomplete reversal of the earlier position of the plaintiff-appellant. Inthis purported settlement the position adverted to by the plaintiff-appellant that rights of Agiris Perera devolved on his only heir MartinPerera (1st defendant-respondent) was abandoned.
Learned District Judge has taken the view that Court has 20inadvertently failed to consider the rights dealt in deeds produced atthe trial marked P1-P4. Applying the principle that, a Court whoseact has caused injury to a suitor, has an inherent power to makerestitution, he directed to amend the interlocutory decree.
Learned Counsel appearing for the plaintiff-appellant submittedthat learned District Judge has erred in amending the interlocutorydecree.
The 1st defendant-respondent was clearly precluded from raisinga contest or disputing the claim of any party, without leave of Courtdue to his default in filing a statement of claim. However, it has to 3°be borne in mind that he is not precluded from relying on the titlepleaded by the plaintiff-appellant. He is entitled to produce his titledeeds relying on the title pleaded by the plaintiff-appellant.Therefore, the question that would arise, is how far it is permissiblefor the plaintiff-appellant to abandon the position pleaded inthe plaint in terms of the deeds and appropriate to himself any share,allotted to the 1st defendant-respondent in the guise of a settlement.
Admittedly, the plaintiff-appellant’s initial position was that AgirisPerera’s rights devolved on Martin Perera, 1st defendant-respondent.Therefore, it would not be appropriate for the plaintiff-appellant to 40arrive at a compromise in respect of rights of Martin Perera.
It is possible for parties to a partition action to compromise theirdisputes, provided the Court has fully investigated the title of eachparty and satisfied itself as to their respective rights.
4
Sri Lanka Law Reports
[2002] 2 Sri LR.
In Kumarihamy v. WeragamaP> it was held that an agreementwhich is entered into in a partition action affecting only the rights ofparties inter se and which is expressly made subject to the Courtbeing satisfied that all parties entitled to interests in the land are beforeit and are solely entitled to it, is binding on the parties and is notobnoxious to the Partition Ordinance.50
In Babyhamine v. Jamist® at the trial where the points in disputewere settled among the parties before evidence was led and theinterlocutory decree entered so as to give effect to the settlement butthe compromise was lacking in precision and did not strictly conformto sections 91 and 408 of the Civil Procedure Code it was held thatin the interest of justice, the purported settlement and the judgmententered upon the basis of that settlement should be set aside andthe trial should proceed de novo upon the issues framed.
The 1st defendant-respondent who was entitled to rely on therights given to him in the plaint, was deprived of his rights by a 60purported settlement arrived at by the parties in his absence. In thecircumstances, this purported settlement could be attacked for wantof mutuality. There is no justification for the plaintiff-appellant in theabsence of the 1st defendant-respondent to claim his rights in thelight of his own evidence, and the deed marked P1-P4.
However, the question that arose for determination before theDistrict Judge was, as to the manner in which relief could be granted tto the 1st defendant-respondent in the face of the unfair and illegalmanner by which the rights of 1st defendant-respondent were denied.Admittedly, the 1st defendant-respondent was not entitiled to relief in ?oterms of section 48 of the Partition Law.
Thus, it remains now, to consider whether the 1st defendant-respondent is entitled to relief using inherent powers of the Court.
In Salim v. Santhiya(3> at 492 it was observed that it is a rule thata Court of justice will not permit a suitor to suffer by reason of itsown wrongful act and that it is under a duty to use its inherent powerto repair the injury done by its act.
CA Caroline Perera and Another v. Martin Perera and Another
(Weerasuriya, J. P/CA)5
The following observations in Potman v. Inspector of Police at117 are relevant:
“This Court would no doubt be extremely hesitant and cautious »obefore it makes any order in revision which is contrary to an orderwhich this Court itself has made upon appeal, but there wouldappear to be a precedent for orders of this kind where the originalorder is based upon a manifest error."
In Sivapathalingam v. Sivasubramaniarrf5) it was held that a Courtwhose act has caused injury to a suitor has an inherent power tomake restitution and this power is exercisable by a Court of originaljurisdiction as well as by a superior Court.
Despite 1st defendant-respondent’s default in filing a statement ofclaim, he could claim the rights allotted to him by the plaintiff-appellant. 90Therefore, he cannot be deprived of his rights by a private arrangementmade by the plaintiff-appellant with other defendant-respondents.Learned District Judge having failed in his duty to examine the title,under this compromise, is entitled to rectify his lapse, using theinherent powers of Court.
Thus, it seems to me that District Judge was correct in grantingrelief to the 1st defendant-respondent by invoking the inherentpowers of Court.
It must be recalled that learned District Judge has made order tokeep the rights of Martin Perera unallotted leaving him the option to 100prove his entitlement.
In the circumstances, this appeal is dismissed with costs.DISSANAYAKE, J. – I agree.
Appeal dismissed.