015-SLLR-SLLR-2005-V-2-FINANCE-LAND-SALES-LTD-vs-PERERA.pdf
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Finance & Land Sales Ltd vs Perera (Gamini Amaratunga, J)7 9
FINANCE & LAND SALES LTDVSPERERACOURT OF APPEALAMARATUNGAJWIMALACHANDRAJCA APPL. 1397/2003 (REV)
D.C. KALUTARA 4546/LMAY 21,2004.
Ex Parte Decree – Application to set aside same – dismissed – Does Revisionlie against the Judgment entered Exparte? Judgment palpably wrong -Miscarriage of Justice – actus curiae neminem gravabit – ex debitio -Justitiae toset aside Judgment – Re – trial -in the interest of Justice.
The trial Judge entered Judgment exparte granting all the reliefs prayed for bythe Plaintiff including the relief claimed in the alternative. Application to purgedefault by the Defendant was dismissed by the trial Judge.
The Defendant sought to canvass the validity of the exparte Judgment on itsmerits in Revision.
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Held:. (i) Although an appeal is not available against an Exparte Judgment,it is possible to move in Revision against an exparte Judgment onits merits.
Held further:(ii) When the Plaintiff claimed relief in the alternative, the trial Judgehas given him all the reliefs set out in the prayer to the Plaint. TheJudgement shocks the conscience of this court and that is sufficientfor this Court to exercise the Courts extra – ordinary revisionarypowers. If the Judgment is not set aside, it would cause seriousinjustice to the Defendant Petitioner amounting to a miscarriage ofjustice, accordingly he is entitled to ex debito justitiae to have theJudgment set aside.
When the Judgment is set aside, it is the end to the Plaintiffscase, a fresh action on the same cause of action will be timebarred, that would cause prejudice to the Plaintiff Respondent, theJudgment is set aside due to the serious mistake made by Court -Actus curiae neminem gravabit – as this Court has to ensure thatthe Court’s mistake does not result in prejudice to the Plaintiff, aretrial is ordered on the original plaint. The Defendant Petitioner isentitled to appear and file answer and to participate in the new trial.
Application in Revision from the Judgment of the District Court of Kalutara.
1. Sirimavo Bandaranaike vs Times of Ceylon Ltd,. – 1995 1 Sri LR 22 at 35
Ranjan Gunaratne for Petitioner.
W. Dayaratne for Respondent.
January 13, 2005
GAMINI AMARATUNGA J.The facts relating to this revision application are as follows. The plaintiff -respondent (hereinafter called the plaintiff) guaranteed the due payment oflease rentals by one Thilakawardana who has taken a vehicle on leasefrom the defendant – petitioner, (hereinafter called the defendant).Thilakawardana defaulted to pay the rentals due to the defendant. Theplaintiff on learning that the defendant had got deed No. 31 dated 4.7.1995
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Finance & Land Sales Ltd vs Perera (Gamini Amaratunga, J) 8 I
executed, conveying his land described in the Schedule to that deed infavour of the defendant instituted case No. 4546/L (the present action)against the defendant seeking the following reliefs.
a declaration that deed No. 31 is null and void.
For a declaration that the defendant is holding the propertydescribed in the schedule to the plaint in trust for the plaintiff.
In the alternative a decree against the defendant forRs. 830,000 (being the actual value.of the land) on the basisof unjust enrichment and Laesio Enormis.
After summons were served the defendant failed to appear. The trialwas taken up ex-parte. The plaintiff gave evidence and closed his case.The learned trial Judge on 29.12.1997 entered judgment in favour of theplaintiff. At the end of the judgment the learned trail Judge has stated“I enter judgment in favour of the plaintiff as prayed for in the plaint.” It isobvious that when the trial Judge wrote the above sentence he hasoverlooked the fact that the plaintiff has claimed relief in the alternative.When a plaintiff has claimed relief in the alternative the trial Judge has tospecify the specific relief granted to the plaintiff. As the judgment nowstands,
Deed No. 31 is declared null and void.
There is a declaration that the defendant holds the propertyin trust for the plaintiff.
The plaintiff is entitled to recover Rs. 830,000 from thedefendant.
After the ex parte decree was served the defendant appeared andsought to purge its default. The Application to set aside the ex-parte decreewas dismissed after inquiry. The defendant has filed this revision applicationto canvass the validity of the ex-parte judgment on its merits.Although an appeal is not available against an ex-parte judgment, it ispossible to move in revision against an ex-parte judgment on its merits.Vide Sirimavo Bandaranaike vs. Times of Ceylon Limited'0.
Mr. Dayaratna, the learned counsel for the plaintiff took up apreliminary objection in limine to the effect that there are no exceptionalcircumstances to exercise revisionary powers of this Court in favour of the
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defendant petitioner. As I have already pointed out the learned DistrictJudge’s Judgement was manifestly wrong. When the plaintiff claimed reliefin the alternative, the learned judge has given him all the reliefs set out inthe prayer to the plaint. In other words more than what the plaintiff hasasked for. The judgment of the trial Judge shocks the conscience of thisCourt and that is sufficient – for this Court to exercise the Court’sextraordinary revisionary powers in favour of the defendant – petitioner. Ifthe judgment of the District Court is not set aside, it would cause seriousinjustice to the defendant – petitioner, amounting to a miscarriage of justice.Accordingly the defendant – petitioner is entitled ex debito justitiae to havethe judgment of the District Court set aside.
However this Court has to look at the other side of the coin as well.In giving relief to the petitioner, we have to ensure that it would not result inprejudice to the plaintiff respondent. When we set aside the judgment ofthe District Court, it is the end of the plaintiff’s action. A fresh action, onthe same cause of action will be time barred. That would cause prejudiceto the plaintiff – respondent. The judgment of the District Court is to be setaside due to the serious mistake made by Court. “Actus curiae neminemgravabit”(an act of Court shall prejudice no man). Accordingly this Courthas to ensure that the Court's mistake does not result in prejudice to theplaintiff.
Section 753 of the Civil Procedure Code states that "The Court of
Appeal may, upon revision pass any judgment or make any
orderas the interests of justice may require". In the exercise of
this wide power I make the following order, I allow the revision applicationand set aside the judgment dated 09.12.1997 and the decree. I order a re-trial and direct the learned District Judge of Kalutara to hold the re-trial onthe plaint filed by the plaintiff – respondent in November 1996. The defendant- petitioner is entitled to appear and file answer and to participate in thenew trial. However before filing the answer the defendant – petitioner shallpay to the plaintiff – respondent taxed costs of the abortive trial upto thedate (18.06.2003) on which the defendant – petitioner’s application to purgedefault was dismissed. In respect of this revision application the partiesshall bear their own costs.
WIMALACHANDRAJ. —I agree.
Application allowed, Trial de novo ordered.