Gunawardena Vs. Ferdinandis

025-SLLR-SLLR-1982-1-Gunawardena-Vs.-Ferdinandis.pdf


256
Sri Lanka Law Report*
/I982/ / S L R
COURT OF APPEALGunawardena
Vs.
Ferdinandis
C.A. S.C. 159/78 – D.C. Moun, Lavinia No 13/Spl.
Section 184 Civil Procedure Code – Judgment pronounced twice – Court's inherentpowers to correct its own mistakes
A judgment was due to be pronounced by the Judge. After a seriesof postponements the Judge fixed it for 2.1.78. On 2.1.78 it was againpostponed for 1.2.78 but this postponement was done in chambers andnot in open Court, as it was during the Court vacation. However, judgmentwas pronounced on 8.2.78 but on this day neither the Appellant nor hisAttorney was present as they did not have notice. When the Judge learnedof this mistake he noticed appellant's lawyer to be present on 10.3.78- and on this day he pronounced judgment in open court in the presence. of the lawyers of both sides. The question was raised whether the judgecould correct his own errors.
Held: that ‘the Judge had correctly invoked court’s inherent powers to correctits own mistake by pronouncing the same judgment afresh.
APPEAL from judgment of the District Court of Mount LaviniaPreliminary objection.
Before:
Counsel:
Argued on:
Decided on:
ATUKORALE. J.
Learned counsel for the respondent raised a preliminary objectionto the hearing of this appeal on the ground that the appeal has beenfiled out of time. Admittedly the learned District Judge (from whose
Atukoraie J. and L. H. de Alwis J.
C. RanganathanQ.C. with N.S. A. Goonetilleke,
N. Mahindran.M.S.H. Reezaand
Miss Maddagode for the
Defendant – Appellant
H. W. Jayewardene Q.C. with D. R. P.
Goonetilleke and Vincent Siriwardena
for the plaintiff-Respondent
23.2.1982
Cur.adv.vult.
2.4.1982
CA
Gunawardena v. Ferdihandis (Atuknralc, J.)
257
judgment the present appeal has been filed) pronounced the samejudgment on two different dates in open court. The first was on
and the second was on 10.3.1978. The proceedings of thelatter date set out the circumstances which, according to the learnedDistrict Judge, made him to do so. He states therein that at thedonclusion of the hearing before .him a date was appointed for thedelivery of judgment. It was not ready on that day and was on thatdate postponed for another day. A few more similar postponementsfollowed and it was due to be delivered on 6.12.1977 on which datetoo it'was put off for 2.1.1978. On 2.1.1978 it was postponed for1.2.1978'and ag'aih for 8.2.1978 when it was finally pronounced byhim. On this day neither the appellant nor his lawyers were presentin court. The learned Judge goes on to state that although accordingto the journal entry of 2.1.1978 the words ‘Judgment not ready.Same for 1.2.1978’ have been recorded yet as 2.1.1978 fell duringthe court vacation he had not called the case in open court in makingthat order on 2.1.1978. Hence, as the order had not been made inopen court, the parties and their lawyers have had no opportunityof knowing the next date of judgment. He further observes that ona consideration of these matters it is apparent that the appellant (thedefendant in the action) or his lawyers have not been present incourt on 8.2.1978 when judgment was delivered as is evidenced bythe journal entry of that date. Judgment has been given against theappellant. If he intended to appeal he has been denied the opportunityof doing so owing to this reason. As it is a mistake that has beencommitted by court, the learned Judge states that he would proceedto duly pronounce judgment in the case and on that date (10.3.1978)he pronounced the. same judgment that he had earlier pronouncedon 8.2.1978 in the absence of the appellant and his lawyers. He alsoindicated that if the appellant wishes to appeal he has the opportunityof doing so as from that day (10.3.1978) according to the provisionsof the Civil Procedure code. • ■ •
Thereafter on 17.3.1978 the attorney for the appellant filed a noticeof appeal against the judgment pronounced on .10.3.1978. This wasaccepted by court on 22.3.1978^. On the same day the respondent-filed a motion stating that the notice of appeal was filed out of timeand that it be rejected. On 29.6.1978 the court, after a considerationof the written submissions of the parties, made order on this motion.In this order the learned Judge refers to the journal entry of 8.2.1978wherein the appearances for the parties had. been noted and the
258
Sri Lanka Law Reports
[1982] 1 SLR
appearance for the appellant had been scored' off and initialled byhim. He states that When the record wai'SeHt up ttf'hittt'for thesigning of the decree it struck him that wHefl'on 2.111978 he hadput off judgment'fef' 1.2.19*78 he ha'd,!hi6t1doAe' ^6 irf^peji^cdurt asit was during lift' couft vWcatibh fahd' ihe' j|artiie^Tanci'fheiiJ 1'awyerswould not .ha^e 'fceen^ presentJthat 'day ." '’The'' judgment that waspronounced on 8.2.1978 had not been pronb'uncid with notice to theparties .b'rv'i^eir lawyers. This was due to . his own mistake. Hetherefore'oh 7.3.1978 noticed the appellant’s lawyer to be presentin court 'bh 10.3.1978 on which date, in the presence of lawyers ofboth''parties, he pronounced judgment. He reiterates that the ordermade1 on'2.1.1978 postponing judgment fof’1.2.1978 was one thatthe parties-or their lawyers had no opportunity of knowing, beingone not malie m. open court. Hence as in his view the judgmentpronounced on 8.2.1978 was not in accordance with the provisionsof the Civil Procedure Code he, in the exercise of his inherentpowers, on 10.3.1978 rectified the mistake made by him. As thenotice of appeal has been filed on 17.3.1978 which is within theprescribed time he states he made order accepting it.
Learned counsel for the respondent in support of his preliminaryobjection submitted that admittedly judgment was pronounced by thelearned Judge on 8.2.1978 which was a date appointed and announcedby, the learned Judge in open court on 1.2.1978. He thus maintainedfirstly that judgment having been pronounced on 8.2.1978 the learnedJudge became functus and he could not have pronounced judgmentonce again on a later date and secondly that even assuming thelearned Judge’s order on 2.1.1978 postponing judgment for 1.2.1978was made in chambers and not in open court, yet as the case wascalled in court on 1.2.1978 and judgment was put off for 8.2.1978there was due compliance with the provisions of s. 184 of the CivilProcedure Code in regard to the pronouncement of the judgment.Learned counsel submitted that the proper course for the appellantwas under the circumstances to have hied an application for leaveto appeal notwithstanding lapse of time. He therefore urged that thejudgment having been duly pronounced on 8.2.1978 the notice ofappeal filed on 17.3.1978 was out of time and the appeal should berejected.
Learned counsel for the appellant on the other hand contendedthat the judgment pronounced on 8.2.1978 was contrary to the
CA
Gunawardena v. Ferdinandis (Atukorale. J.)
259
express, clear and unambiguous terms of s. 184 of the Civil ProcedureCode and was thus void, illegal and of no force or effect at all. Heconceded that the parties had notice that judgment was due fordelivery on 2.1.1978 but maintained that as that date fell during thecourt vacation there was no public sitting of court on that day. Thuswhen the learned Judge on that day re-fixed judgment for 8.2.1978in chambers he did so without notice to the parties or their lawyers.This he submitted was contrary to the provisions of s. 184 whichprescribes that notice of the date of judgment should be given tothe parties or their registered attorneys. He urged that s. 184 wasa' mandatory provision of law and a non-compliance thereof wouldrender the judgment void and of no effect. He contended that inthe instant case the court itself made a mistake when it pronouncedjudgment on 8.2.1978 without notice to the parties or their lawyersand that as such it was open to the learned Judge to correct hisown mistake.
It was not seriously disputed before us that the proceedings of
and 29.6.1978 set out correctly the factual position relatingto the circumstances pertaining to the delivery of the same judgmenton 8.2.1978 as well as on 10.3.1978. They contain a statement ofthe observations of the learned Judge himself and I have no doubtthat he has set out therein a true account of what happened. Itseems to me to be clear on a perusal of the above proceedings thatjudgment was, after several postponements, refixed for 2.1.1978 whichis a date that fell during the court vacation. There were no publicsittings of court on that day. The learned Judge on that day againrefixed judgment for 1.2.1978. This was done in chambers in theabsence of the parties and their lawyers. On 1.2.1978 he, in opencourt, put off judgment once again for 8.2.1978 on which date heproceeded to pronounce judgment. Neither the appellant nor hisregistered attorney was present at that time. There is nothing on therecord to show that the parties or their attorneys had notice thatjudgmeht was refixed for 1.2.1978. Nor is there anything to showthaf'tfiey’^r'e present in court on 1.2.1978. It therefore appears tome that judgment had been pronounced by court on 8.2.1978 withoutnotice to the appellant or his registered attorney and in their absence.
S. 184 of the Civil Procedure Code prescribes how and when thecourt shall pronounce judgment in an action. In so far as the instantcase is concerned the relevant portions of the section are as follows:
?60
(19821 1 SLR
Sri Lanka Law Reports
.384. (1) The court, upon the eyj^ence..which has been duly
taken shall …………. pronounce judgment in
open court, either at once or on some future day, ofwhich notice shall be given to the parties or their proctors.at the: termination of the trial.
(2) On the day so fixed, if the court is not prepared togive its judgment, a yet future day may be appointedand announced,/or the purpose.
. i,.,
The reference to ‘their proctors’ herein is a reference to theregistered attorneys of the parties – vide s. 126 of the Civil ProcedureCode (Amendment) Law, No. 20 of 1977. It will thus be seen thatjudgment must be prpnounced in open court. It must further bepronounced either..at once (i.e. at the termination of the trial) oron some future, day of which notice must be given to the parties ortheir registered attorneys at the termination of the trial. If on thelatter date the court is not ready to deliver judgment then a yetTuture date can be appointed and announced for that purpose. Theappointment and announcement of the future date must, in my view,also be made in open court, the purpose being to give notice to theparties or . their registered attorneys of the date when judgment isgoing to be delivered by court. In the instant case judgment wasreserved at the termination of the hearing to be delivered on a datewhich was fixed by court at the time. There is no dispute that thedelivery of judgment was postponed on, several dates all of whichhad been appointed and announced for that purpose in open court…The last of such dates was 2.1.1978. Judgment was, however, .potdelivered on that date too. The learned judge on that day appointedanother day, namely 1.2.1978, for the purpose. This was done inchambers in the absence of the parties and their attorneys. Therewas thus no announcement:in open.court of the next date of judgment.The parties and their attorneys, had. therefore no notice that the courtwould deliver judgment on..L-2.l978…Qn that date too judgment wasnot given and yet another.day was fixed in open court. But thereis nothing to indicate, that the parties, or their attorneys were presentin court on 1.2.1978, .As such they woyld. have had-no notice thatjudgment would be delivered on 8.2.1.978.: In rpy view there has thusbeen a failure of the learned Judge to comply with the provisionsof s. 184 in that the appellant and his attorney did not have noticeof the last two dates fixed for delivery of judgment, namely, 1.2.1978and 8.2.1978. Hence when judgment was in fact pronounced on
CAGunawardena v. Ferdinandis (Atukorale, J.)261
it was done in contravention of. the provisions of s. 184.The fact that the final date (8,2.1978) was fixed by the learned Judge,in open court on 1.2.1978 makes no difference since the. qppe.ll^ntand his attorney had no notice (legal or factual) of either c>f tltetwo dates. The duty of pronouncing judgment according to law wason the court itself. If as in the instant case a. date fixed for judgmentfalls on a day on which there are no public sittings it is the dutyof court to order notice to be issued, on the parties to appear incourt on a particular date so as to fix the next date for delivery ofjudgment. There is in my view no duty cast on a party to ascertainfor himself the next date of judgment if such date has not beenfixed in open court. As a matter of practice there is no doubt thatregistered attorneys of parties do ascertain the next date of judgmentand take notice of judgment at the time of its delivery in court. Buthe is not obliged to do so in law. Nor will such a practice relievea court of its duty to pronounce judgment on a date in accordancewith law. I am unable to accept the second submission of learnedcounsel for the respondent that the initial mistake made by courton 2.1.1978 in fixing 1.2.1978 as the next date of judgment inchambers and not in open court has been cured by the1 fact that thedate on which judgment was in fact delivered (8.2.1978) was fixed1by the learned Judge in court on 1.2.1978.
In support of his first submission that a judge once he deliversjudgment is ‘functus officio' and cannot deliver judgment again inthe same case, learned counsel for the respondent relied on thefollowing desisions. Dionis Appu v. Arlis (23 NLR 346), Paulusz v.Perera (34 NLR 438) and Kannangara v. Silva (35 NLR 1). In thefirst of these cases the learned District Judge pronounced a consideredjudgment in open court but before the ’decree was drawn up hecame to a different conclusion whereupon he, after the appealableperiod had expired, delivered a fresh judgment in a sense contraryto the original judgment which he purported to cancel. He took theview that until decree was entered it-was competent for a Judge tovary any judgment pronounced by him even to the extent of entirelyreversing it. In appeal it was held that there was no provision inthe Civil Procedure Code authorising a Judge to reconsider or varyhis judgment after delivering it in open court. In the second case.Paulusz v. Perera (supra), the learned District Judge dismissed apartition action on the ground, inter alia, that some of the documentstendered in evidence and marked had not been filed in the case.
262
Sri Lanka Law Reports
f1982/ 1 S.L.R
After the order of dismissal was made it was brought to the Judge’snotice that the documents had been tendered to the clerk in chargeof the record who had omitted to send them up to the learned J,udgewith the record. The learned Judge, after a consideration of thedocuments, set aside his order of dismissal of the action, set thecase down for further inquiry and thereafter entered a decree forpartition. Dc Silva A.J. (with Akbar J. agreeing), in holding that acourt had no power to set aside its own order of dismissal, statedrs follows:
i
“The principle of law that a court may not set aside its ownorder is well established and rigorously enforced. It is a veryimportant principle as .on it depends the finality of judicialdecisions. If a Judge can review his own decision, there is nolimit to the number of times upon which he might do so orupon which he may be invited by the parties so to do.”
In the last mentioned case above, Kannangara v. Silva, a personwho was not a party to a partition action sought, to set aside thefinal decree and to intervene in tfie action. The learned Judge heldthat he had no power to do so. In appeal Dalton A.C.J. whilstaffirming the judgment of the learned District Judge held that acourt has no inherent power to vacate its own decree or order inthe same proceedings except under the provisions of the CivilProcedure Code.
A consideration of the above cases show that what the learnedDistrict Judges in the first two cases did and what the learned DistrictJudge in the last case refused to do was to set aside the judgmentswhich had been duly delivered with a view to reviewing the same.In each case the validity of the judgment was sought to be challengedon its merits. In the instant case, however, the learned Judge, havingdiscovered that the prouncement of his judgment in open court hadbeen, owing to his own mistake, without due notice to the partiesas required by law, only sought to rectify his own mistake by are-prononcement of the same judgment with notice to the parties ortheir registered attorneys. As such the principle of law laid down inthe above cases relied on by learned counsel for the respondenthave, in my view, no application to the instant case.
In Salim v. Santhiya and others (69 CLW 15) the Supreme Courtpronounced judgment in contravention of s. 774(1) of the Civil
CACunawardena v. Ferdinandis (Atukorale, J.)263
Procedure Code in that the judgment was not pronounced at theconclusion of the hearing nor on an appointed day nor ori a day ofwhich notice had been given to the parties or their counsel. Thepetitioner gave the respondent notice of his intention'1 to make anapplication for conditional leave to appeal to the Pfivy Council. Theapplication was presented to the Supreme Court mfer the expiry ofthe prescribed period of 14 days of the pronouncing 'of me judgment.There was thus a failure to comply with rule 2 of the Rules in theschedule to the Appeal (Privy Qqupci (^Ordinance (Chapter. J00)yhich required that tlip. notice should be given to the opposite, party.within 14 days of the pronouncing of the judgment. The petitionercontended that his failure to comply with this rule wa$ because thejudgment in question was not pronounced by the Supreme- Courtf.inthe planner prescribed by s. 774 (1) of the. Civil Procedure, Code.In,granting conditional leave to appeal, T.S. Fernando.J. (with SriSkanda Rajah J., agreeing) in the course of his judgment observedas follows:
“This Court pointed out in Sirinivasa Thero v. Sudani Them(63 NLR at p.34) that if. is a rule that a Court of Justice willnot permit a, suitor to suffer by reason of its. own wrongfulact and that it is under a duty, to use. its. inherent powers torepair the injury dope to a party by its act. In these circumstances. it is plain that our duty is to grant conditional leave to appeal,and that leave is hereby granted on the usual terms."
In Sirinivasa Thero v. Sudassi Thero (63 NIR 31) the plaintiff wasejected from a room in a temple on a writ of possession obtainedby the defendant on a decree1 on which the court had no power-toissue a writ of possession. The'-plaintiff then moved under s. 328 ofthe Civil Procedure Code'to -have himself restored to possession ofthe room. In the course'-b'f. his1 judgment Sansoni J: (with H.N.G.Fernand? J. agreeing) stated at p. 34.
“s’. 328, no doubt, contemplates dispossession under decreesfor possession of immovable property, but this is not a matter•which we can allow to stand in the way of the plaintiff, for■ we must have regard to the substance rather than form.' Justicerequires that he should be restored to the position he occupiedbefore the invalid. order was made, for it is a rule that theCourt will not permit a suitor to suffer by reason of its wrongfulact. The Court will, so far as possible, put him in the position
12-1
264
Sri Lanka Law Reports
11982J 1 SLR
which he would have occupied if the wrong order had notbeen made. It is a power which is inherent in the Court itself,and rests on the principle that a Court of Justice is under aduty to repair the injury done to a party by its act: see Rodgerv. Comptoir D'Escompte de Paris (1871 L.R. 3 P.C. 465). Theduty of the Court under these circumstances can be carriedout under its inherent powers.”
The provisions of s 184 of'the Civil Procedure Code relating tothe manner of pronouncing judgment seem to me to be of a mandatorynature. They are so designed as to ensure that the parties to anaction receive due notice of the date of pronouncing judgment sothat they may avail themselves of the opportunity of exercising therights which the law confers on them on the judgment being pronounced.The facts in the instant case leave no room for doubt that the courtpronounced judgment on 8.2.1978 without notice to the appellant orhis attorney .As a result of this mistake the appellant was deniedthe opportunity of exercising the right which the law gave him ofappealing against the judgment. Before long the court itself discoveredthe mistake it had committed. Under the circumstances, in view ofthe principle of law enunciated in the last two cases aformentioned,I am of the opinion that the court was entitled to and did correctlyinvoke its inherent powers to rectify its own mistake by pronouncingthe same judgment afresh on 10.3.1978.
Learned counsel for the respondent also maintained that theappellant should have filed in this court an application for leave toappeal notwithstanding lapse of time. s. 765 of the Civil ProcedureCode empowers this court to admit and entertain a petition of appealfrom a decree of any original court, although the provisions of s.754 and s. 756 have not been observed, subject to certain limitations,s. 765, in my view, presupposes that the petitioner had the Opportunityof complying with the provisions of s. 754 and S. 756 but wasprevented from doing so by causes beyond his control. But if, as inthe instant case, a party had no notice of the date on which thejudgment was pronounced and was unaware of it, what opportunitydoes he have of complying with the provisions of s. 754? I amtherefore unable to agree with this contention of learned counsel forthe respondent.
CA
Gunawardena w. Ferdinandis (Atukorale. J.)
265
On a consideration of the above matters I am of the view thatthe preliminary objection should be dismissed. Costs of this hearingwill abide the final hearing of the appeal. The appeal will now beset down for hearing.
L.H. do Alwis J.- I agree..
Preliminary objection overruled.