CAJayatissa vAppuhamy (Chandra Ekanayake, J.)157
By the order dated 12.07.1993 the learned trial judge hadordered to issue a commission to the Commissioner in the casenamely – E.T.Gunawardane to prepare a plan and a reportaccording to the instructions given therein. Last paragraph of thesaid order is as follows:-
Sri Lanka Law Reports
12007] 1 SriLR
after the return to the commission the Court shall call the case inopen Court to fix a date for the consideration of the scheme ofpartition proposed by the surveyor. Of course the time frame withinwhich that has to be done is given in the section. In the case athand Court had already complied with this provision andfurthermore the original defendant being the only defendant in thecase was even given an opportunity to tender objections to the final 90plan and scheme inquiry was fixed. At the inquiry also the originaldefendant had been duly represented by Counsel and theaforesaid order dated 12.07.1993 was the order which waspronounced after the said inquiry. It is seen that thereafter only thedeath of the original defendant had occurred and 1 A defendantwas substituted. When the Court had duly and properly allowed theoriginal defendant to object to the final plan bearing No. 1162, theperson who was substituted in the room of the said deceased-defendant (1 A defendant) cannot be given another opportunity toconsider the plan and report (plan No. 717) which being the 100outcome of the order dated 12.07.1993 – order of the schemeinquiry. For the reasons given as above I see no error in the orderdated 16. 08.1995 of the learned District Judge confirming the finalplan bearing No. 717 with the report and the other annexures andin the judgment pronounced also.
For the foregoing reasons this appeal should fail. I wouldaccordingly dismiss the appeal with costs fixed at Rs. 15,000/-
GOONERATNE, J. – I agree.
Appeal dismissed.