022-NLR-NLR-V-14-GOONESEKERA-et-al-v.-ADIRIAN-et-al.pdf

Present: Middleton J. and Wood Renton J.
COONESEKERA e/W. v. ADTRTAN et ah

81—D. C. Gtile, 9,679.
Inherent power of Court—Partition action stayed till one defendant's
dispute with another defendant be decided by a separate action.
The District Judge, suspecting that the object of this suit wasto have the eighth defendant’s dispute with the third defendantdecided in an action where no stamp fees had to be paid, stayedproceedings and directed the eighth defendant to bring a separateaction against the third defendant to set aside a deed alleged byher to be void, as having been granted for the 9ale of her shareduring minority.
The Supreme Court set aside the order and directed that theaction be proceeded with, as the District Judge was not justifiedin acting on suspicion.
Middleton J.—“ I am not prepared to accede to the propositionthat the Court has not any inherent authority to prevent abuse ofits process in cases where the Legislature has not distinctly providedfor such contingencies. If the eighth defendant had been seekingpartition herself against the plaintiff, on the ground that herconveyance to the third defendant was void, the District Courtwould have been right in refusing to allow a partition action toproceed till she had put herself in the position of an owner incommon by obtaining rescission of her alleged void conveyance bya separate act ion.”
rj^HE facts-appear in the judgment of Middleton J.
A. St. V. Jayewardene, for the plaintiffs, appellants.—The factthat eighth defendant’s title is denied by the third defendant is noreason why the partition proceeding should be stayed. The FullBench has held that a partition action may be instituted by a personwho was never in possession of the land sought to be partitioned,and whose title is totally denied by the defendants. (Sanchi Appu v.Wijegunasekere.*) If the eighth defendant was plaintiff, the Courtcould not have refused to proceed with the case on the ground thathis title was denied ; how, then, could plaintiff’s action be stayedxwhen his title is not disputed ?
There is no provision in the Partition Ordinance which wouldjustify the order of the District Judge. [Wood Renton J.—Has notthe Court an inherent power to see that that its process is notabused ?] The powers of the Court are strictly defined by theCourts Ordinance and by other Statutes.
1 (1902) 6 N. L, R. 1 ; 3 Br. 176,
Jitiy 28,1910
( 80 )
J^yiSjlQiQ Counsel referred to In the Matter of the Application of John
Goon vsekera FergllSOnv. Adirian
H. A. Jayewardene (with him Rosairo), for the respondents.—Theinherent power of the Court is very wide ; it is “ as wide as thedesire of the Court to do justice.’* The Civil Procedure Code andthe Courts Ordinance do not exhaust all the powers of the Court(32 Cal 927, 930).
The District Judge was justified in ordering a stay of proceedings ;the validity of the deed in favour of the third defendant cannot bedecided in the partition suit, as the setting aside of the deed mightinvolve questions of damages and compensation which cannot beawarded in a partition suit (Samarasinghe v. Balahamy,2 Silva v.Silva:1)
Tn a partition suit each parly is in the position of a plaintiff. TheJudge is satisfied that the eighth defendant and plaintiffs intendedto raise the question of the validity of the eighth-defendant’s deed bythese proceedings. This is not a bona fide partition.action.
A. St. V. Jayewardene, in reply.—Section 11 of the PartitionOrdinance enacts that no dilatory exception should be allowed inpartition cases.
Counsel also referred to Cornells Appuhamy v. AppuwaVanLeeuwen 5, 17, 4.
Cur. adv. vult. .
July 18, 1910. . Middleton J.—
This was a partition action in which, on the application of therespondents’ advocate in the District Court, the learned Judgestayed proceedings, directing the eighth defendant to bring aseparate action against the third defendant to set aside a deedalleged by her to be void, as having been granted for the sale of hershare during minority.
The District Judge commented on the fact that the same counselappeared for both first plaintiff and eighth defendant, and that they-were sisters, and accepted the theory put forward by counsel for therespondents in the District Court that the object of the partitionaction was to have the eighth defendant’s dispute with the thirddefendant decided in an action where no stamp fees had to be paid.
It was objected on appeal that the Court had neither statutorynor inherent right to make such an order, and the respondents wefenot able to show that any statutory right to do so existed, butcontended that an inherent right might be inferred to make anyorder staying proceedings in any case where it was clear that anattempt was being made to abuse the process of the Court.
' (1874) 1 X. L. R. 75/.;J {100b) 0 X. L. R. 110 ; 3 Bat. 149.
2 {1902) 3 jV. L. R. 370.4 {J90G) 10 A L. R. 161.
( 81 )
I am not prepared to accede to the proposition that the Court hasnot any inherent authority to prevent abuse of its process in caseswhere the Legislature has not distinctly provided for such contin-gencies. At the same time I think it must be established that anabuse has clearly occurred, which calls for such intervention. Thepresent case, I think, is not much more than a matter of strongsuspicion. If the eighth defendant had been seeking partitionherself against the plaintiff, on the ground that her conveyance tothe third defendant was void, I think the District Court would havebeen clearly right in refusing to allow a partition action to proceedtill she had put herself in the position of an owner in common byobtaining a rescission of-her alleged void conveyance by a separateaction. In Sanchi Appu v. Wijegunasekere -1 I held, as a member ofthe Collective Court, that a person not having an admitted claimcould bring a partition action, and that possession was not necessaryto found a right to make a claim in partition. But this does notmean that a person who has apparently no legal right can doso. As the case stands at present, the eighth defendant wouldhave apparently no claim to partition as an owner in common,having divested herself of ownership by deed of sale, which standsunrescinded. In my opinion there is not sufficient ground shownhere for making the order appealed against, and the plaintiff is,prima facie, entitled to partition proceedings.
T would direct that the order be set aside, and that the partitionaction be allowed to proceed. If it turns out in the course of thetrial that the learned Judge’s suspicions are justified, he can dealwith the case under section 4 of Ordinance No. 10 of 1897. Theappeal must be allowed with costs.
July 18, m0MrnniiKTON
J.
Ooonesekerav. Adirian
Wood Renton J.—
I am certainly not prepared, as at present advised, to hold thatthe District Judge in this case would not have had inherent powerto make such an order as that now brought before us on appeal, atleast to the extent of postponing the trial of the action for a limitedtime, if it were clearly shown to be necessary, in order to prevent anabuse of the process of his Court. But I agree with my brotherMiddleton that at present, however strong one’s suspicion may beas to the relationship, for the purpose of this suit, between the firstplaintiff-appellant and the eighth defendant, there are not sufficientmaterials before us to justify the order that has been made. I agreeto the order proposed by my brother Middleton.
♦
Appeal allowed.
1(1902) 6 N, L. J?. 4.
U—J: W A 93343 <U/49)