029-SLLR-SLLR-2006-V-2-GRISILDA-AND-OTHERS-vs.-BABA-NONA-AND-OTHERS.pdf
CA
Grisilda and Others vs Baba Nona and Others
253
GRISILDA AND OTHERSVS.BABA NONA AND OTHERSCOURT OF APPEAL.
EKANAYAKE, J.
CALA153/2003. (LG)
DC GAMPAHA26612/P.
FEBRUARY 15,2006.
Partition Law, No. 21 of 1977, sections 48(4)(a), 48(4)(c) and 69(1) – Interlocutorydecree entered – Addition of parties – Is it permitted ? – Inherent powers of Courtinvoked – Could the Court act? – Violating express provisions • Civil ProcedureCode, section 754 (2).
The petitioners who were not parties to the partition action, applied undersection 48(4)(a) to get them added as parties. Interlocutory decree has alreadybeen entered. The trial Judge refused the application.
HELD:
Section 48(4) (c) has no application to the instant case, as theapplication has been made even after entering the interlocutorydecree. Section 48(1) applies only to persons who are parties inthe case and not to any outsiders.
The petitioners disentitle themselves to the benefit of theprovisions of section 69(1) because addition of parties can beallowed only before the delivery of judgment and in this casejudgment had been delivered almost 3 years earlier.
Inherent power of the court cannot be invoked to violate the expressprovisions.
APPLICATION for leave to appeal from an order of the District Court of Gampahawith leave being granted.
Manohara R. de Silva for – petitioner petitioners.
N. R. M. Daluwatte, P. C. with H. S. P. Seneviratne for plaintiff-respondents and1A, 2, 3A, 4-7, 9-11 defendant -respondents.
Rohana Jayawardane with Gamini Perera for 10(a) defendant-respondent -respondent
Cur. pdv. vult.
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Sri Lanka Law Reports
(2005) 2 Sri L R.
September 25,2006.
CHANDRA EKANAYAKE, J.The Petitioner-Petitioners (hereinafter sometimes referred to as thePetitioners) by their petition dated 21.05.2003 had sought inter alia leaveto appeal against the order of the learned District Judge of Gampaha dated30.04.2003 (P6), to set aside and/or to vacate the same and for a trialde novo. The Plaintiff-Respondents (hereinafter sometimes referred to asthe Plaintiffs) had instituted this action bearing No. 26612/P in the DistrictCourt of Gampaha to partition the land called ‘Unagahawatta aliasUnapanduruwatta’ in extent of 2A 3R and 34.5 P under the provisions ofthe Partition Law.
It is common ground that the present petitioners were not parties to themain partition action. After the interlocutory decree was entered by theirapplication made by petition dated 30.09.2002(P5) supported by an affidavit,said to have been under and in terms of section 48(4)(a) of the PartitionLaw (as amended) had sought the following reliefs:
that these petitioners be made parties to this action andpermission be given to make their claim to the land depicted inthe preliminary plan No. 632 filed of record in this case,
that an opportunity be afforded to the said petitioners to file theirstatements of claim,
that the land described in the 2nd schedule to the petition – theland depicted in plan No. 451 mentioned in the petition – being lotNo. 7 in plan No 632 mentioned above be excluded from thecorpus.
The basis of the above application had been that K. M. Ruberu Nonawho was said to be the predecessor in title of the present petitioners hadclaimed the plantations and improvements in lot No. 7 at the preliminarysurvey. It is seen from the interlocutory decree that aforesaid Ruberu Nonahad been already given the plantations and improvements in lot No. 7 asclaimed by her. After an inquiry into the above application of the petitionersthe learned trial Judge by his order dated 30.04.2003 had dismissed the
CAGrisilda and Others vs Baba Nona and Others255
(Chandra Ekanayake, J.)
same, This is the order this leave to appeal application has beenpreferred from.
This Court by its order dated 13.01.2005 had granted leave to proceedin this matter.
By the impugned order (P6) the learned trial Judge had dismissed theapplication of the Petitioner on the basis that the said application wasmade even after entering of the interlocutory decree and further provisionsof section 48(4)(c) of the Partition Law does not permit the Court to allowparties to intervene at this stage. Further it has to be observed here sincethis is an Application for Leave to Appeal made under and in terms ofsection 754(2) of the Civil Procedure Code, a party who is dissatisfied with
any ordermay prefer an application against same for the correction of
any error, in fact or in law. Section 754(2) of the Civil Procedure Code thusreads as follows:
“Any person who shall be dissatisfied with any order madeby any original court in the course of any civil action, proceedingor matter to which he is, or seeks to be a party, may prefer anappeal to the Court of Appeal against such order for thecorrection of any error in fact or in law, with the leave of theCourt of Appeal first had and obtained.”
Perusal of the impugned order reveals that the basis of rejecting thepetitioner’s application had been that the provisions of section 48(4) (c)has no application to the instant case as it has been made even afterentering the interlocutory decree. I am inclined to agree with the saidfinding since the above section 48(4)(c) applies only to persons who areparties in the case and not to any outsiders like the present petitioners. Inthe light of the above I am unable to conclude that there appears any errorin fact or in law in the impugned order.
The petitioners disentitle themselves to the benefit of the provisions ofsection 69(1) of the Partition Law because addition of parties can be allowedonly before the delivery of judgment and in this case judgment had beendelivered as far back as 17.06.1999 – (Vide Journal Entry 93).
It was further contended on behalf of the petitioners that even thoughsection 48(4)(c) of the Partition Law has no applicatjpn to the instantcase, present petitioners could be added as parties under inherent powers,
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(2006) 2 Sri L R.
as they are the recipients of the said improvements in lot No. 7. The trendof authority in Sri Lanka would amply demonstrate that inherent powers ofthe Court cannot be invoked to violate the express provisions. Section69(1) of the Partition Law provides the instances for addition of parties in apartition case. Viewed in the above context I conclude that the aboveargument advanced on behalf of the petitioners is of no merit.
For the foregoing reasons I see no basis to interfere with the impugnedorder and this appeal is hereby dismissed with costs fixed at Rs. 7,500.
Appeal dismissed.