Cynthia de Alwis v. Marjorie d'Alwis and Two Others
CYNTHIA DE ALWIS
v.MARJORIE D’ALWIS AND TWO OTHERS
COURT OF APPEAL.
C. MT. LAVINIA 5494/P.
AUGUST 7. 1997.
Partition Act – Undivided shares vested in the Commissioner of National Housing- Ceiling on Housing Property Law No. 1 of 1973 – Statement of claim not filed byCommissioner of National Housing though added as a Party – Can an issue beraised as to the title and interest vested in the Commissioner?
The District Court held that the Commissioner of National Housing, though addedas a party had failed to file a Statement of Claim and in the circumstances therewas no justification and provision in the Partition Act to permit an issue to beraised as to title and interests vested in the Commissioner.
A District Judge trying a partition action is under a sacred duty to investigateinto title on all material that is forthcoming at the commencement of the trial. In theexercise of this sacred duty to investigate title a trial Judge cannot be found faultwith for being too careful in his investigation. He has every right even to call forevidence after the parties have closed their cases.
Though the Commissioner did not file a statement of claim the first and seconddefendants have filed Statement of Claim pleading that certain undividedinterests in the corpus vested in the Commissioner. In the circumstances, thelearned trial Judge was under a duty to adopt the points of contest raised.
Even in a Rei vindicatio action issues are not limited to pleadings. Our CivilProcedure Code requires the Defendant to file an answer but it does not allow theCourt to try the case on the parties pleadings by requiring specific issues to beframed by the provisions of S.146 of the Civil Procedure Code, after parties areagreed the issues may be stated by them, if not agreed then the Court mustframe them.
There Is no necessity under our law to restrict the issues to the pleadings.APPLICATION in Revision from the Order of the District Court of Mt. Lavinia.
Sri Lanka Law Reports
(1997} 3 Sri L.R.
Cases referred to:
Kumarihamy v. Weeragama – 43 NLR 265
Mather v. Thamotheram Pitta – 6 NLR 246
Thayalnayagam v. Kathiresa Pittai – 8 CWR 152
Attorney-General v. Smith – 8 NLR 229 at 241
Bank of Ceylon v. Chelliah Pittai – 64 NLR 25(P.C.)
Pieris v. Municipal Council, Gatte – 65 NLR 555 at 556
Jayawickrema v. Amarasuriya – 20 NLR 293 at 297
Ms Maureen Seneviratrm P.C. with Tilak Gunawardena and P. N. R. Fernando, for1st defendant-petitioner.
MiNndu Kulasooriya for plaintiff-respondents.
Cur. adv. vult.
N. O. JAYASURIYA, J.
We have heard learned counsel for the petitioner and learnedcounsel appearing for the respondent. The veracity of facts set out inthe petition and affidavit of the petitioner are conceded and admittedby learned counsel who appeared for the plaintiffs-respondents.
The first and second defendants-respondents, in their statement ofclaim, pleaded that substantial undivided shares in the propertywhich was the subject-matter of the partition action had vested in theCommissioner of National Housing under the provisions of the Ceilingon Housing Property Law. The said Commissioner, after notice, wasadded as a party but he has failed to file a statement of claim, At thetrial, the following point of contest were raised before the Court: No. 3- 'Did substantial interests in the subject-matter of this partitionaction which were previously owned by Olivia Constance de Alwisvest in the Commissioner of National Housing under the provisions ofthe Ceiling on Housing property Law during the life time of OliviaConstance de Alwis? No. 4 – If Issue'3 is answered in the affirmative,did undivided one-fourth shares in the corpus vest in theCommissioner of National Housing?" The learned District Judgerefused to accept and adopt the aforesaid points of contestsuggested by Counsel for the first and second defendants-respondents on the ground that the Commissioner of NationalHousing, though added as a party, had failed to file a statement of
Cynthia deAlwis v. Marjorie d'Alwis and Two Others
(F. N. D. Jayasuriya, J.)
claim and in the circumstances there was no justification andprovision in the Partition Act to permit an issue to be raised as to thetitle and interests vested in the Commissioner.
We hold that this is a manifestly erroneous order in law. A Districtjudge trying a partition action is under a sacred duty to investigateinto title on all material that is forthcoming at the commencement ofthe trial. Vide the express provisions to that effect in the Partition Actand the dicta in the decision in Kumarihamy v. Weeragama(”(Divisional Bench). Justice de Kretser in this decision observed “Anumber of decisions of this court have emphasized the duty of thecourt to investigate title fully and not to treat a partition action as anaction inter partes. The emphasis is always on the necessity and dutyto investigate title. In Mather v. Thamotheram Pillai(Z| Chief JusticeLayard observed that the "trial Judge must satisfy himself bypersonal inquiry that the Plaintiff has made out a title to the landsought to be partitioned and that the parties before Court aresolely entitled to the land.” In the exercise of this sacred duty toinvestigate title a trial judge cannot be found fault with for being toocareful in his investigation. He has every right even to call forevidence after the parties have closed their cases, VideThayalnayagarr v. Kathiresa Pitiail3).
Though the Commissioner of National Housing did not file astatement of claim the first and second defendants have filedstatements of claim pleading that certain undivided interest in thiscorpus vested in the Commissioner of National Housing. In thecircumstances the learned trial judge was under a duty to adopt thepoint of contest raised. This is an imperative and mandatory functionof the District Judge in matter of investigation of title.
Even in a rei vindicatio action in Sri Lanka, issues are not limitedto the pleadings. The judge is entitled to frame an issue on thematerial before him which would result in a right decision of the caseand a complete and effectual determination of all the matters arisingbetween the parties and for that purpose he can use the documentsenumerated in the lists, the submissions and opening of counsel andevery material placed before him at the trial prior to the framing ofissues. See the decision in Attorney-General v. Smith™ at 241. In thisdecision Chief Justice Layard referred to the differences in Indian
Sri Lanka Law Reports
 3 Sri L.R.
Civil Procedure and the English Procedure. He observed that inEngland parties frame their own pleadings and the case is tried onissues raised in the pleadings and if an issue is objected tothe judge has to decide on the sufficiency or insufficiency ofpleadings and if the pleadings are insufficient, leave is given toamend … But under the Indian system, which is akin to the provisionsof the Sri Lankan Civil Procedure Code, the court does not as inEngland try the case on the pleadings; it can use the plaint thedefendants’ statements, if any, to ascertain what are the issues tobe adjudicated on. They are supplemented by the examination of theparties, documents produced by them and also by the statements ofthe respective pleaders. It is the duty of the court in India from suchmaterial to frame the issues to be tried and disposed of in thecase. Our Civil Procedure Code follows the Indian counterpart in thismatter except that it requires the defendant to file an answerunlike the Indian Code. However, it does not allow the court to trythe case on the parties’ pleadings but requires specific issuesto be framed. By the provisions of section 146 of the Civil ProcedureCode, if the parties are agreed, the issues may be stated bythem. If not agreed, then the court must frame them. There is nonecessity under our law to restrict the issues to the pleadingsas was done in this case and in fact it appears to me to be contraryto our law.”
Likewise, in Bank of Ceylon v. Chelliah Pillai|5) (Privy Council) theprinciple was laid down that “A case must be tried upon the issues onwhich the right decision of the case appears to the court to dependand it is well settled that the framing of such issues is not restrictedby the pleadings. In Peiris v. Municipal Council, Ga/te16' at 556.Justice Tambiah remarked that even where the plaintiff fails to raise arelevant issue, it is the duty of the judge to raise the necessary issuesfor a just decision of the case. Vide also the judgment of the PrivyCouncil in Jayawickrema v. Amarasuriya™ at 297.
Therefore, we hold that the learned District Judge has erredgrievously in rejecting the said points of contest 3 and 4 which weresuggested by learned counsel. We direct the District Judge to acceptand adopt points of contest 3 and 4 and proceed to trial after framingall other issues that are required for arriving at a right decision in thiscase.
Cynthia da Alwis v. Marjorie d'Alwis and Two Others
(F. N. D. Jayasuriya, J.)
The Order dated 1.7.97 is set aside. The Revision Application isallowed without costs. Issue parties with certified copies of thisJudgment expeditiously on payment of the usual charges.
S. YAPA, J. -1 agree.