DIAS J.—Dharmadasa v. Meraja
1948Present: Dias and Gratiaen JJ.
DH ARM ADAS A, Appellant, and MERAYA, RespondentS. C. 389—D. C. Panadure, TK 525/25,438
Civil Procedure Code—Partition action—Amendment of final decree—Acci-dental slip or omission—Failure to notice reservation of life interestin deed—Jurisdiction to amend—Res judicata—Section 189.
A partition action proceeds on oral as well as documentary evidenceand the failure to notice the reservation of a life interest in a deed isan accidental slip or omission which gives the Court jurisdiction to amendthe decree under section 189 of the Civil Procedure Code. Where a,decree is so amended with notice to the parties it is res judicata andcannot he attacked in a collateral action.
■A.PPEAL from a judgment of the District Judge, Panadure.
E. B. Wikramanayake, K.C., with H. Wanigatunga, for plaintiff,appellant.
H. W. Jayewardene, for defendant, respondent.
Cur. adv. mill.
November 23, 1948. Dias J.-—
The plaintiff-appellant and his deceased wife owned an undivided'sharein a land called KLoskandewatta or Batadombagahawatta. They bytheir deed P2 of 1927, reserving to themselves a life interest, donatedthat share to their three children including the defendant-respondent-
The main corpus was partitioned in D. C. Kalutara 20,286. In hiaplaint the appellant recited the deed P2 and disclosed the fact that heclaimed a life interest over the share donated by that deed. Whengiving evidence regarding the devolution of title at the trial of the parti-tion case, the appellant produced the deed P2 (marked P7 in that case),but the record does not show that he made any mention of the life interest
1*J. N. A 86422 (2/49)
DIAS J.—-Dharmadasa v. Meraya
which was clearly reserved in that deed. The restdt was unfortunate ;because neither -the interlocutory decree D4, nor the final decree P3reserved to the appellant his life interest over the divided lot 7 whichwas allotted to his daughter the respondent (6th defendant in thepartition action).
Within a month after the final decree was entered, however, the plaintiffwith notice to the respondent applied to amend the decree. The res-pondent, though personally served with notice, failed to appear, andthe Judge, who was not the Judge who tried the case, allowed the amend-ment which was incorporated in the final decree P3. No appeal wastaken against the order allowing the amendment.
Three years later the respondent filed proxy and without any noticeto the appellant, who was in possession of lot 7, obtained a writ of posses-sion and ejected the appellant, who thereupon moved to be restored topossession. For some reason, which is riot clear, the appellant’s counseldid not press this application, which was, consequently, dismissed with-out costs. The appellant, thereupon, filed the present action againstthe respondent. The District Judge dismissed his action holding thatthe amendment of the final decree P3 was bad and made without juris-diction, and that the dismissal of the appellant’s application to be res-tored to possession operated as a bar to his present action. From thatjudgment the plaintiff appeals.
I cannot agree with the District Judge that the Court in the partitionaction had no jurisdiction to amend the final decree P3. His reasonsfor so holding are that there was no “ accidental slip or omission ”,and that the mistake arose because the appellant when giving evidencefailed to refer to his life interest. The District Judge, however, hasoverlooked the fact that the partition action proceeded on oral as well ason documentary evidence. The deed P2 (P7) clearly indicated that theplaintiff had a life interest over the share which was donated. In apartition case it is the duty of the trial Judge to investigate the title,and not merely to go on what the plaintiff says, or is made to say, whenhe is outlining the pedigree. Had the trial Judge done what he oughtto have done, and studied the documentary evidence in the case, hewould not have failed to notice that the share of the respondent wassubject to the life interest of the plaintiff. Clearly, therefore, there hasbeen a “ slip or omission ” in allotting the shares of the respondentand the plaintiff. Obviously, that slip or omission was not deliberate.It was accidental. The cases of Silva v. Silva1 and Silva v. Silva2 indicatethat.a decree in a partition case can be amended, under section 189 ofthe Civil Procedure Code. Jayawardene in his book on Partition saysat page 156 : “ A final decree for partition may be amended if there hasbeen a clerical error. There is nothing in section 189 which limits thetime within which such amendment can be made ”. Section 189 wassubsequently repealed and re-enacted in its present form by OrdinanceNo. 26 of 1930. This amendment widened the powers of the Courtto give relief under section 189. Not only may the Court at any time,either on its own motion or on that of any of the parties, correct anyclerical or arithmetical mistake in any judgment or order, but it can1 (1910) 13 N.L. B. 87.2 (1912) 15 N.L.B. 146.
13 IAS J.—Dharmadasa v. Meraya
also amend any error arising therein from “ any accidental slip or omis-sion ”, or may make any amendment which is necessary to bring a decreeinto conformity with the judgment. Before making such an amend-ment, however, the Court shall in all cases give reasonable notice tothe parties or their proctors.
The District Judge holds that the Judge who allowed the amendmentwas not the Judge who delivered the judgment on which the inter-locutory decree was based, and that “ he did not allow the amendmentbecause of an accidental error or omission The judgment wasdelivered and the interlocutory decree was signed by Mr. T. F. C. Roberts,District Judge. The amendment was allowed by his successor Mr.L. W. de Silva, District Judge. Section 88 of the Courts Ordinanceempowers the successor of a Judge to continue a case commenced ordealt with by his predecessor. When Mr. L. W. de Silva allowed theapplication to amend the final decree he was obviously acting undersection 189. There was no clerical or arithmetical error to correct. Hewas not bringing the decree into conformity with the judgment. Hewas correcting a “ slip or omission ”. Mr. L. W. de Silva had before himthe fact, which the Judge from whose judgment this appeal is takenhas not appreciated, that there was documentary evidence before Mr.
T.F. C. Roberts proving conclusively that this plaintiff was entitled toa life interest over the divided block 7. Obviously, Mr. T. F. C. Robertsdid not make “ the slip or omission ” which he did, in fact, make deli-berately. It was a pure accident. Furthermore, Mr. 'L. W. de Silvahad jurisdiction to act under section 189. Thereupon it was open tohim to make a right order or a wrong order. If he made a wrong order,which I do no not think he did, the remedy of the respondent was toappeal therefrom. Not having done so, the order binds her as it is aninter partes order. I hold that the amendment of the decree waslawful and is binding on the respondent.
This amendment of the decree was made in October, 1941. It wasdone after due notice to the respondent. She waited until January,1944, when a proctor filed her proxy and moved for a writ of possession.It is incredible how any proctor could make such an application with theearlier journal entries and the amended decree staring him in the face.Had the respondent and her legal advisers displayed ordinary diligence,they ought to have realized that the appellant was in possession undera decree of the Court, and that before applying for the writ of posses-sion—assuming that such a writ can be issued in a partition action1—they should have drawn the attention of the Court to that fact,and moved that a notice should issue on the party in possession inthe first instance, to show cause why he should not be ejected.The respondent, obviously, could not take such, steps, because theamended decree binds her, and her application for a writ of posses-sion would have been rejected out of hand. There is here a distinctelement of fraud which, in my opinion, affects all the subsequent pro-ceedings. The Court was induced to issue the writ of possession by aconcealment of material faets. The application was made ex parte
1 See Vengadasalem v. Ghettiyar (1928) 29 N. L. R. 446, Ttadjiar v. Mohamedu^ 1917) 4 C. W. R. 371, and Fernando v. Galhirivetu (1927) 28 Ar. L. R. 492.
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when notice ought to have issued in the first instance on the appellantwho was in possession. His ejectment under such circumstances wasunlawful. He, in turn, had to adopt a procedure which is questionablein order to regain possession. When the appellant’s application cameup for inquiry, his counsel did not press the application which was,therefore, dismissed without costs.
Section 328 cannot apply to a case of this kind. Both the appellantand the respondent are decree holders—the former with the right toimmediate possession, and the latter with the right to possessionon the death of the appellant. The District Judge holds that theplaintiff’s application under section 328 having been dismissed, thisdebars him from claiming in a subsequent proceeding against the sameparty the right to the possession of the same property. Ordinarilythat may be so, but in cases where one of the parties by fraud hassucceeded in ejecting the person lawfully entitled to be in- possessionof a land, and compels that other to seek the aid of the Court to regainpossession, and who then withdraws the application because the mattercannot be dealt with in that way, in my opinion the withdrawal of theapplication under such circumstances cannot operate as a bar to thepresent action. There has been no adjudication on the merits of theappellant’s claim to be restored to possession. He has neither saidnor done anything which has detrimentally affected the respondent’sposition. I am, therefore, of the view that the finding of the learnedDistrict Judge cannot be supported. To do so would be to enable therespondent to take advantage of her own fraud.
The judgment and decree appealed against are set aside. I enterjudgment for the plaintiff as prayed for with damages which were agreedon at Us. 25 per mensem. The plaintiff will have his costs both hereand below.
Gratiaen J.—I agree.
DHARMADASA, Appellant, and MERAYA, Respondent