025-SLLR-SLLR-2006-V-3-GUNASEKERA-vs.-CHITRA-DE-SILVA-AN-ANOTHER.pdf
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GUNASEKERAVS.CHITRA DE SILVA AND ANOTHERCOURT OF APPEAL.
SOMAWANSA, J. (P/CA).
WIMALACHANDRA, J.
CA 1358/2004.
REV. D. C. GALLE 14855/P.
JUNE 10. 2005.
Partition Law, Section 48(4),2 of 1977 – Intervention after interlocutorydecree-No leave to appeal filed – Revision – Does it lie ? Misleading Court-Exceptional circumstances – Can the interlocutory decree be set aside bya third party ?
The petitioner respondent was allowed to intervene after the judgment/ interlocutory decree and all proceeding were set aside. The plaintiff -respondent – petitioner sought to revise and set aside the said order. Itwas contended that, as the petitioner has not filed a leave to appealapplication against the injunction order, the application in revision shouldbe dismissed in limine.
HELD:
Per Somawansa, J. (P/CA)
‘I am not at all impressed with the aforesaid preliminary objection forthe reason that the impugned order is palpably erroneous and madewithout jurisdiction"
Held further:
(1) Where an alternative remedy is available and if a party failsand or neglects to exercise such remedy due to the partiesown conduct and or negligence court will not exercise theextraordinary powers of Revision. However, when the party
CA
Gunasekera vs.
Chitra de Silva and another (Andrew Somawansa, J.)
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is able to show exceptional circumstances, Court will nothesitate to exercise such jurisdiction.
(2) The District Court has no jurisdiction to set aside its owninterlocutory decree at the instance of a person who is not aparty to the partition proceedings. The order permittingintervention is bad in law, erroneous and made withoutjurisdiction. The order setting aside the interlocutory decree isa blatant disregard of Section 48 of the Partition Law andpatently outside the jurisdiction of Court.
"It would suffice to say that being aware that the order of the trial judgeis patently outside his jurisdiction and palpably wrong this court cannotpermit the impugned order to stand, the preliminary objection taken by therespondent could not be made use of to shield or protect such a palpablewrong order.”
APPLICATION in revision from an order of the District Court of Galle.Cases referred to:
Janitha vs. Abeysekera, Sri Lanka Law Reports Vol. IV page 30
Vanik Enterprises Ltd., vs. Jayasekera (1997) 2 Sri LR 365
Rustom vs. Hapangama & Co. (1971/79/80) 1 Sri LR 352
Somaratne vs. Madawala (1993) 2 Sri LR 15
Heendeniya Jayaratne vs. Premadasa, SC 20/2003 – SM
18.02.2004
Umma vs. (2000) Zubari and another 3 Sri LR 169 (distinguished)
A. Wanniarachchi for plaintiff-respondent-petitioner.
Gamini Marapana, PC with Navin Marapana and 6. Ranasinghe forpetitioner-petitioner.
Cur. adv. vult.
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December 9,2006.
ANDREW SOMAWANSA, J. (P/CA)This revisionary application emanates from the order of the learnedAdditional District Judge of Galle dated 13.05.2004 allowing theapplication of the petitioner-respondent to intervene in the action andsetting aside the proceedings, judgment and the interlocutory decreealready entered and declaring the same null and void. The plaintiff-respondent-petitioner (hereinafter called the petitioner) isseeking torevise and set aside the aforesaid order dated 13.05.2004 and for anorder dismissing and/or rejecting the petitioner-respondent’s (hereinaftercalled the respondent) petition dated 22.01.2004. The petitioner alsoprayed for and obtained an interim order staying further proceeding inthe original court which has been extended from time to time.
When this application was taken up for argument both counselagreed to resolve the matter by way of written submissions and bothparties have tendered their written submissions.
In the statement of objections filed by the respondent as well as inhis written submissions several preliminary objections were taken tothe maintainability of this application. The said preliminary objectioncould be summarized in the following manner, in that the petitionerhas not availed himself of the proper remedy available to him inasmuchas he has not filed a leave to appeal application against the impugnedorder within the 14 days time period stipulated by law and has notgiven a satisfactory explanation for his lapse. Further in trying to explainhis lapse he has tried to mislead this Court and thus his conductclearly disentitles him to the relief prayed for by him. That he has alsosuppressed the motion referred to in journal entry 18 dated 21.05.2004apply for a certified copy of the entire case record and the said motion
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Gunasekera vs.
Chitra de Silva and another (Andrew Somawansa, J.)
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has not been tendered to Court in contravention of mandatory provisionscontained in Rule 3 of the Court of Appeal (Appellate Procedure) Rules1990. However I must say I am not at all impressed with the aforesaidpreliminary objections taken by counsel for the respondent for thereason that the impugned order of the learned Additional District Judgeis palpably erroneous and made without jurisdiction. While concedingthat where an alternative remedy is available and if a party fails orneglects to exercise such remedy due to the parties own conduct andor negligence this Court will not exercise the extraordinary powers ofrevision. However there is an exception to the aforesaid rule in thatwhen the petitioner is able to show the existence of exceptionalcircumstances warranting the exercise of revisionary jurisdiction thisCourt will not hesitate to exercise such jurisdiction.
In the case of Janita vs. Abeysekera(1) it was held :
“Court of Appeal is empowered with revisionary jurisdiction inexceptional circumstances even though alternatives remedies areprovided"
Again in the case of Vanik Incorporation Ltd. vs. Jayasekera:
“Revisionary powers should be exercised where a miscarriage ofjustice has occurred due to a fundamental rule of procedure beingviolated, but only when a strong case is made out amounting to apositive miscarriage of justice.”
Also in the case of Rustom vs. Hapangama:
“The trend of authority clearly indicates that where the revisionarypowers of the Court of Appeal are invoked the practice has been that
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these powers will be exercised if there is an alternative remedyavailable, only if the existence of special circumstances are urgednecessitating the indulgence of this court to exercise its powers inrevision”.
I would say the petitioner in the instant application has in fact broughtto the notice of Court that special circumstances exists which wouldwarrant this Court to exercise its powers of revision in that the orderchallenged is manifestly erroneous which go beyond the error or defector irregularity.
The relevant facts are on 30.07.2002 the petitioner commencedproceedings under partition law as amended for the partition of a land.The respondent was not a party to the said proceeding and in factthere was no reference to the respondent in the pedigree set out bythe petitioner. On 30.03.2003 interlocutory decree was entered inaccordance with the judgment pronounced upon the undisputedevidence of the petitioner. Thereafter commission for a final partitionplan was issued returnable on 22.01.2004. On 22.01.2004 therespondent who was not a party to the aforesaid proceedings made anapplication seeking to intervene in the action and to set aside theinterlocutory decree already entered and to have a fresh trial. Thepetitioner objected to the said application on the basis that the DistrictCourt has no jurisdiction to set aside its own interlocutory decree atthe instance of a person who is not a party to the partition proceedings.Parties agreed to resolve this matter by way written submissions andthe learned Additional District Judge having considered the writtensubmissions so tendered by his order dated 13.05.2004 allowed therespondent’s application to intervene in the action, set aside allproceeding had and orders made and permitted the respondent to filea statement of claim. This order made by the learned Additional District
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Gunasekera vs.
Chiba de Silva and another (Andrew Somawansa, J.)
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Judge is clearly erroneous and made without any jurisdiction when thelearned Additional District Judge was bound by the decision of theSupreme Court in the case of Somawathi vs. MadawelaP) and theSupreme Court decision in Heendeniya Jayaratne vs. Premadasa andhas further erroneously followed the Court of Appeal judgement in Ummavs. Zubair and Another.<6)
In the case of Somawathi vs. Madawela (supra) a Divisional Benchof the Supreme Court consisting of Sharvananda J, Wanasundera, J.Wimalaratne, J. Ratwatte, J and Soza J having considered theauthorities in this respect held that the District Court has no power toset aside an interlocutory decree at the request of a person who is nota party to the partition proceedings.
Per Soza, J at page 32 :
“I might add that the District Judge had no power to allow interventionafter the entry of interlocutory decree. This can be done only by aSuperior Court acting in revision."
In Heendeniya vs. Premadasa (supra) a Bench consisting of S. N.Silva C. J. and Weerasuriya, J. held :
It is significant that Section 48(1) of the Partition Law gives finaland conclusive effect to the interlocutory decree, subject to the decisionon any appeal which may be preferred therefrom and subsection (4)as referred to earlier. Having regard to the stringent provisions of Section48 of the Partition Law which has as their object, the finality of theinterlocutory decree, it is obvious that the learned District Judge hadacted in blatant disregard of the provisions of Section 48.
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On a consideration of the above material, it would be manifest thatthe District Court has no jurisdiction to entertain the application of thepetitio.ner-respondent-respondents to seek the relief they prayed forand the application was misconceived."
Thus it could be seen that the Supreme Court in no uncertain termshave clearly laid down the principle that the interlocutory decree cannotbe set aside at the application made by a third party or a person whois not a party to the proceedings in the District Court and any such actsetting aside the interlocutory decree is a blatant disregard of theprovisions of Section 48 of the Partition Law as amended and patentlyoutside the jurisdiction of the District Court.
It would be useful here to refer to Section 48 of the Partition Lawwhich reads as follows :
“48(1) Save as provided in subsection (5) of this section, theinterlocutory decree entered under Section 26 and the final decree ofpartition entered under Section 36 shall, subject to the decision onany appeal which may be preferred therefrom, and in the case of aninterlocutory decree, subject also to the provisions of subsection (4)of this Section, be good and sufficient evidence of the title of anyperson as to any right, share or interest awarded therein to him and befinal and conclusive for all purposes against all persons whomsoever,
.. whatever right, title of interest they have, or claim to have, to or in theland to which such decree relates and notwithstanding any omissionor defect of procedure or in the proof of title adduced before the courtor the fact that all persons concerned are not parties to the partitionaction, and the right, share or interest awarded by any such decreeshall be free from all encumbrances whatsoever other than thosespecified in that decree.”
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Chitra de Silva and another (Andrew Somawansa, J.)
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It is to be seen that the learned Additional District Judge has setaside the interlocutory decree in the instant action following the Courtof Appeal decision in Umma vs. Zubair (supra) which was based onthe principle that any interlocutory decree entered without service ofsummons and a due registration of a lispendens is a nullity. While Ihave no bone to pick on this proposition of law that decision cannotand will not be an authority for the proposition of law that a third partywho is not a party defendant can make an application to the DistrictCourt to set aside the interlocutory decree and that decision could beclearly distinguished and is not applicable to the facts andcircumstances of this case. The learned Additional District Judge haserred in law in following that case and ignoring the decision of theDivisional Bench of the Supreme Court in Somawathi’s case.
In passing, I might refer to the fact that the petitioner in paragraph IIof his petition explains as to why he could not file a leave to appealapplication. It is contended by counsel for the respondent that in tryingto explain why the petitioner did not file a leave to appeal applicationhe has tried to mislead this Court. I do not wish to determine theveracity of these two statements but it would suffice to say that beingaware that the order of the learned Additional District Judge is patentlyoutside his jurisdiction and palpably wrong this Court cannot permitthe impugned order to stand. The order of the learned Additional DistrictJudge being ex facie wrong has to be quashed and the preliminaryobjections taken by the respondent should not be made use of toshield or protect such palpable wrong order. As the objection of non-compliance with the Court of Appeal (Appellate Procedure) Rules of1990, it is to be seen that document marked X filed along with thepetition is a certified copy of the pages 1 to 175 of the original caserecord. I would say all necessary documents material to this applicationhave been tendered.
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For the foregoing reasons, my considered view is that the impugnedorder of the learned Additional District Judge cannot be permitted tostand. Accordingly exercising the extraordinary powers vested in theCourt, I would revise and set aside the order of the learned AdditionalDistrict Judge dated 13.05.2004 and also dismiss the applicationof the respondent tendered to the original Court dated 22.01.2004.The petitioner will be entitled to costs of these proceeding fixed atRs. 20,000.
WIMALACHANDRA, J.-1 agree
Application allowed