003-SLLR-SLLR-1995-2-LAMEER-V.-SENARATHNA.pdf
CA
Lameer v. Senarathna
13
LAMEER
v.SENARATHNA
COURT OF APPEAL
S.N. SILVA, J. (P/CA)
RANARAJA, J.
A. NO. 919/92
C. COLOMBO CASE NO. 15158/LFEBRUARY 28, 1995.
Rei Vindicatio Action – Settlement – Application to set aside – Prejudice -Compromise and settlement arrived at by the Attorney-at-Law. – Compulsion byCourt to accept terms – Duress – Coercion – Laesib Enormis – Uncertainty of thesettlement.
The plaintiff-petitioner instituted action for Declaration of title, ejectment anddamages. Defendant-respondent filed Answer stating that he was in lawfulpossession. After several dates of trial, a settlement was recorded on 21.6.1991that the Petitioner should sell the premises to the respondents at Rs. 75,000 aPerch. On 13.7.1991, the terms were recorded and signed by the parties. Anapplication was made to set aside the settlement, on the grounds that (i) theAttorney-at-Law acted contrary to instructions; (2) he was compelled by Court toaccept the terms. (3) Laesio Enormis; (4) Uncertainty of the settlement.
Held:
When an Attorney-at-Law is given a general Authority to settle or compromisea case, client cannot seek to set aside a settlement so entered, more so, whenthe client himself had signed the record.
There is no affidavit from the Attorney-at-Law affirming that the petitioner wasforced into accepting the terms of settlement. Pleadings indicate that thesettlement was first suggested on 21.6.1991 and entered only on 13.7.1991.
Court cannot grant relief by way of restitution to a party who has agreed inCourt, to sell property at a lesser price with the full knowledge of its true value.
There is no uncertainty as, in this instance, the respondent has alreadydeposited the full sum due.
Cases referred to:
BabunAppuv. Simon Appu 11 N.L.R. 44.
Menchinahamy v. Munaweera 52 N.L.R. 409.
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[1995] 2 Sri L.R.
Sinnathamby v. Nallathamby7 N.L.R. 139.
Silva v. Fonseka 23 N.L.R. 447.
Veloo v. Lipton Ltd. 66 N.L.R. 214.
Sobana v. Meera Saiboo 1940 5 C.L.J. 46.
Gunasekera v. Amarasekera 1993 1 S.L.R. 170.
Newton v. Seneviratne 54 N.L.R. 4.
APPLICATION for Restitutio in integrum Revision of the order of the District Courtof Colombo.
P. Nagendra, P.C. with A. Jayasekera for petitioner.
P. A. D. Samarasekera, P.C. with K. Sri Gunawardena for respondent.
Cur. adv. vult.
March 24, 1995.
RANARAJA, J.
This is an application by way of restitutio in integrum/revision to setaside the terms of settlement dated in the case on 13.7.91.
The petitioner instituted action against the respondent for adeclaration of title to Lot A2 in plan No. 2612 dated 13.9.90, preparedby S. Rasappah, Licensed Surveyor, ejectment of the respondent anddamages. The respondent filed answer stating that he was in lawfulpossession of the premises in suit from 1973. The trial commencedon 24.1.91 and continued on 15.3.91 and 21.6.91, on which day itwas mooted that the petitioner should sell the premises to therespondent at Rs. 75,000/- per perch. On 13.7.91 the terms ofsettlement were recorded and signed by the parties. This applicationis to have the said settlement vacated.
The petitioner has not filed a certified copy of the proceedings of13.7.91, as required by rule 3(1)(b) of the Supreme Court rules. Thisground alone is sufficient to dismiss the petitioner's application.
This application has been filed on 30.11.92, that is over sixteenmonths from the day the terms of settlement were entered. A partyseeking restitution must act with utmost promptitude. Babun Appu v.Simon Appu m, Menchinahamy v. Munaweera (2). The petitioner hassought to explain the undue delay on his mother’s illness. He hashowever not produced any evidence in support of that fact except hisipse dixit. A delay of sixteen months, in the circumstances is far too
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Lameer v. Senarathna (Ranaraja, J.)
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tong a period after which this Court can grant relief prayed for by thepetitioner.
It is conceded in the petition that after the terras of settlement wererecorded, the respondent has regularly deposited the sums due aspurchase price, which the petitioner has withdrawn. Court will notpermit restitution when it would result in prejudice to the other party toa settlement, by the change that has taken place in the position of theparties during the interim – Sinnathamby v. Nallathamby(3). Therespondent has deposited a large sum of money of which thepetitioner has had the benefit. In the event of relief prayed for by thepetitioner being granted, the respondent will be prejudiced to theextent that he could have put the money deposited for moreprofitable use. The petitioner on the other hand, would have had anundue benefit of those sums of money.
The petitioner alleges that his Attorney-at-Law acted contrary toinstructions. However, when an Attorney-at-Law has been given ageneral authority to settle or compromise a case, as was admittedlydone in the instant case, a client cannot seek to set aside asettlement so entered by way of restitution, more so where the clienthimself has signed the record accepting the terms of settlement.Silva v. Fonseka (<>, Veloo v. Upton Ltd.(5).
The petitioner avers that he was compelled by Court to accept theterms of settlement, therefore he contends his consent was obtainedby duress, coercion and undue influence. There is no evidence insupport of this allegation. The proceedings of that date have notbeen filed. There is no affidavit by his Attorney-at-Law affirming thatthe petitioner was forced into accepting the terms of settlement. Onthe other hand, his own pleadings show that the settlement was firstsuggested on 21.6.91. The petitioner had not raised any objection toselling the land to the respondent or the proposed price ofRs. 75,000/- per perch. The recording of the terms of settlement wasput off in order that the respondent could examine the title of thepetitioner to the land. The terms were entered three weeks later. If thepetitioner had any misgivings about the proposed settlement hecould very well have refused to accept the terms recorded on 13.7.91which he has not done.
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The petitioner seeks to have the settlement rescinded on theground of laesio enormis. Our Courts have thus far not given relief byway of restitution to a party who has agreed in Court to sell propertyat a lesser price with the full knowledge of its true value. The petitioner •in his pleadings has admitted that he was aware, on the basis of thereport of Surveyor A. F. Sameer, that a perch of the relevant land wasworth Rs. 200,000/-. The principle of laesio enormis applies where thevendor was unaware of the true value of the land sold. Sobana v.Meera SaibolB see also Gunasekera v. Amerasekera(7). In any event,the true value is based on the assumption that the land is free ofencumbrances. This is not the case in respect of the land which wasthe subject-matter of the action. The respondent was in possession ofthe land and claimed the right to continue to possess it. In thecircumstances, it would be artificial to expect any prospective buyerto pay the true value on purchase.
The petitioner submits the terms of settlement are uncertainregarding what is to happen to the money already deposited by therespondent, in the event of his defaulting in future. This argument isacademic, as the respondent has already deposited the full sum due.Besides, such a situation could be met according to the principleslaid down in the case cited by him namely, Newton v. Seneviratne<8).In that case the Court held that where there is uncertainty in the termsrecorded, the intention of parties must be given effect to inaccordance with common sense.
The petitioner has not made out a case for the interference of thisCourt with the settlement entered on 13.7.92, by way of revision orgranting the petitioner relief by way of restitutio in integrum. Hisapplication is accordingly dismissed with costs.
S.N. SILVA, J. -1 agree.
Application dismissed.