027-NLR-NLR-V-42-JOSEPH-v.-JOSEPH.pdf
KEUNEMAN J.—Joseph v. Joseph.
119
1940Present: Keuneman and Nihill JJ.
JOSEPH v. JOSEPHApplication for restitutio in integrum.
D. C. Jaffna, 138.
Judicial separation (a mensa et thoro)—Decree entered of consent—CivilProcedure Code, s. 608.
A Court has no authority to enter a decree for separation a mensa etthoro based entirely on the consent of parties.
^^PPLlCATION for revision or restitutio in integrum.
N. Nadarajah (with him N. Kumarasingham), for the petitionerS. J. V. Chelvanayagam, for the respondent.
Cur. adv. vult.
June 11, 1940. Keuneman J.—
In this case the plaintiff brought an action against his wife, thedefendant, asking for a separation a mensa et thoro. The matter came upfor trial on February 14, 1940. The plaintiff alleged, first, cruelty, and
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KEUNEMAN J.—Joseph v. Joseph.
secondly, malicious desertion on the part of the defendant, and issueswere framed upon that footing. At the trial the plaintiff actually gotinto the witness-box to give evidence, but before he had given anyevidence relating either to cruelty or to malicious desertion it is recordedthat the case was settled and that the defendant consents to a decreefor separation and for the return of certain articles in the schedule to theplaint. Thereupon the Judge proceeded to enter decree for the plaintiffaccordingly.
The objection is taken here that the learned District Judge had nopower to enter a decree entirely based upon the consent of parties. Ourattention has been called to section 608 of the Civil Procedure Code whichlays down that the Court should enter decree on being satisfied on duetrial of the truth of the statements made in the plaint, and that there isno legal ground why the application should not be granted. It is clearthat there was no evidence whatsoever on which the Court could havedecided as to the truth of the statements made in the plaint. The Courtpurported to act entirely upon the consent of parties. I think it is clearfrom the terms of this section that the Court had no authority to entersuch a decree based entirely upon consent. If we examine the subsequentsections 609 and 610, we see that a decree entered by Court materiallyeffects the wife’s right with regard to property, with regard to. contractsand with regard to the right to sue. This relates to a decree of separationentered by CourUunder section 608. I think accordingly that the Courtshould not enter such a decree.
The present application is for restitutio in integrum or in the alternativefor revision. Counsel for the respondent argues that there was a right ofappeal in this case. I am not at all satisfied that there was any such rightof appeal. Even if it can be conceded that there might possibly be aright of appeal, I do not think it is any good ground for refusing thedefendant the remedy which she claims. At the least it was extremelydubious as to whether there would be an appeal or not.
Under the circumstances I think we must allow the application and setaside the proceedings taken and the order made on February 14, 1940,and any subsequent proceedings taken thereafter. The case will be sentback to the Court for trial in due course. The petitioner is entitled to thecosts of this application. _
Nihill J.—I agree.
Application allowed.