004-NLR-NLR-V-70-M.-A.-DON-LEWIS-Petitioner-and-D.-W.-S.-DISSANAYAKE-and-others-Respondents.pdf
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Don Lewis v. Dissanayake
1967Present: Manicavasagar, J., and Tennekoon, J.M.A. DON LEWIS, Petitioner, and D. W. S. DISSANAYAKE and
others, Respondents
S. C. 483/66—Application for Revision or Restitutio in Integrum in
C. Colombo, 8862jP
Partition action—Interlocutory decree—Omission to serve summons on a "partypreviously—Circumstances when relief will not be granted by way of revisionor restitutio in integrum—Partition Act, s. 22. 1 * 3
1 {1880) Law Reports, Volume 16, Ch(Picery Division, Page 551.
* {1962) 64 N. L. R. 427.•
3 <1967) 69 N. L. R. 381.
TENNEKOON, J.—Don Lewis v. Dissanayake
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In thisapplication for Revision or Restitutio in integrum, the petitioner soughtto have the interlocutory decree entered in a partition action set aside. Themain ground urged was that although the petitioner was disclosed as a claimantin the Surveyor’s report, no notice or summons was thereafter served on himas required by section 22 of the Partition Act. The 8th defendant-respondentalso supported the application on the ground that, although he was named a#8th defendant in the plaint, he never received any summons or notice.
The facts showed that the petitioner had tried to pass off as, and usurp theplace of, the 8th defendant-respondent and that, long before the interlocutorydecree was entered, he could have sought to have himself added as a partyinstead of taking the inexplicable course he did. Further, even when hisapplication to intervene was dismissed by the District Court, the petitionerdid nothing for 8 months.
Held, that it was not the function of the Supreme Court, in the exercise ofthe jurisdiction now invoked, to relieve parties of the consequences of theirown folly, negligence and laches. The maxim vigilantilyua, non dormienlibus,jura 8ubveniunt provided a sufficient answer to the petitioner’s application.Further, the petitioner did not display the honesty and frankness expected of aperson seeking the extraordinary powers of the Court.
Held further, that the right of a party in a partition action to beserved summons may be lost by acquiescence on his part. In the present casethe 8th defendant had not only been allotted his due share but bad also failedto take steps for nearly one year to have the interlocutory decree set aside afterhe became aware of it. He was not entitled, therefore, to any relief.
Application to revise an order of the District Court, Colombo.
W. S. S. Jayauardena, for the Petitioner.
J.0. Jayatilleke, for the Plaintiff-Respondent.
W. D. Gunasekera, for the 7th Defendant-Respondent.
D. M. P. Goonetilleke, for the 8th Defendant-Respondent.
Cur. adv. vult.
March 12, 1967. Tennekoon, J.—
The petitioner, one Munasinghe Aratchige Don Luwis of Talangama,seeks to have this court, in the exercise of its powers of Revision orRestitution, set aside the judgment and Interlocutory Decree enteredin this case. The main ground urged is that the petitioner was disclosedas a claimant in the Surveyor’s Report, but no notice or summons wasthereafter served on him.
Upon the notice of the present application being served on H. CarolisCaldera whose name appears as 8th defendant-respondent, a statementof objections has been filed by him, in which far from objecting to theapplication he himself prays that#the Interlocutory Decree entered inthis case be set aside by ihis court, on the ground, among others, thatalthough he was named as 8th defendant in the plaint, he has not sincethe institution of the action received any summons or notice. He
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TENNEKOON, J.—Don Lewis v. Dissanayake
pleads that he has consequently had no opportunity of filing hisstatement of claim and that he has lost certain rights to the landunder the Interlocutory Decree.
The examination of some of the factual questions involved in thisapplication is rendered more difficult by reason of fact that the DistrictCourt Record of the case has been lost; what is now used as the recordis one of the type-written briefs prepared in the course of an appeal thathad been taken to this court against the Interlocutory Decree by the1st defendant-respondent. That appeal incidentally was dismissedsometime in March 1965. None of the proxies filed by the parties or thefiscal’s report on service of summonses in the early stages of the case areavailable. These might have been of some assistance in resolving thequestions that now arise for consideration.
The claim of the petitioner to have been entitled to notice under section22 of the Partition Act as a claimant before the surveyor and the claimof Carolis Caldera the 8th defendant-respondent that no summons hadbeen served on him since the institution of the action have necessarilyto be considered together for reasons that will become apparent on thefacts as stated hereafter.
The plaint in this case was filed in July 1959. There were eightdefendants named in the plaint, the 8th being captioned thus :—
“8. Carolis Caldera of Talangama.”
The commission to survey was issued on 18th September, 1959, andsummons on the eight defendants shortly thereafter. The journal entryof 25th November 1959 reads :—
Notice to V. H. served.
Notice to Fiscal published.
SS served on 1-7 defdts.
Proxy of 7 D filed.
Proxy of 1-6 and 8 Defts filed.
Not served on 8th deft.
Vide Supra.
Return to Commission due filed with plan No. 623, Report, copy
of field notes and memo.
Add parties disclosed in the Surveyor’s Report.
The Surveyor’s report reads (in its relevant portions) as follows :—
“ The plaintiff was represented by her husband but all the otherparties were present in person.
TENNEKOON, J.—Don Lewis v. Dissanayake
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Makanduwage William Gomis c/o. M. W. Appuhamy of Bostal,Veyangoda was present at the time I surveyed and stated his claim.The 8th defendant stated that his name should be MunasinghearatchigeDon Lewis and not Carolis Caldera. He is from Talangama.
y>
The first sentence quoted seems to suggest that Carolis Caldera the 8thdefendant was present before the surveyor. But it can be gathered fromthe latter part of the report quoted that this was not the case. Apparentlya person appeared before the surveyor and stated that he was the 8thdefendant but that his name was Munasinghe Aratchige Don Luwis.
cannot understand how a person, who does not claim to have a namegiven in the caption to a plaint, can attach himself to a mere numeral inthe caption while totally disclaiming the name against that numeral.The court itself upon reading the Surveyor’s report merely ordered that“ parties disclosed be added ”. In pursuance of this order only the name *of Makanduwage William Gomis was added as 9th defendant and summonsissued and duly served on him. Munasinghe Aratchige Don Luwis wasnot added. What happened subsequently is that right up to the Inter-locutory Decree Carolis Caldera was completely ignored. Apparently allnotices went to the person who had said that he was the 8th defendantthough he was not Carolis Caldera. The record shows that on 30th ofMarch, 1960, a Proctor had filed answer on behalf of the 1st, 2nd, 3rd, 4th,5th, 6th and 8th defendants. Paragraph six of that answer reads asfollows :—
“ The 8th defendant abovenamed further states that his name asgiven in the caption is incorrect and should be amended to read as #Munasinghe Aratchige Don Lewis.”
Later an amended answer was filed by the same Proctor on the 21stFebruary, 1962, on behalf of “ 8th defendant abovenamed MunasingheAratchige Don Luwis, wrongly stated as H. Carolis Caldera ”. It isstrange that this Proctor also encouraged the person calling himselfMunasinghe Aratchige Don Luwis and having no claims to the name ofCarolis Caldera to file answer as 8th defendant.
The record thereafter shows that on numerous dates the “ 8thdefendant ” was either present or was represented by lawyers. Thereis no doubt in my mind that Carolis Caldera was never present orrepresented on any of these occasions. There is also no doubt in my mindthat the person who appeared before the surveyor and claimed to be the8th defendant and who later filed answer and amended answer as 8thdefendant and continued to appear as such was none other than thepresent petitioner Munasinghe Aratchige Don Luwis.
The case went to trial on the ?3th of March 1963. The 1st, 2nd, 3rd4th, 5th, 9th and 10th* defendants were present. The 7th defendantwas represented by counsel. The record also says that counsel appeared
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TENNEKOON, J.—Don Lewis v. Dissanayctke
for 1st to 6th, and 8th defendants. Only the plaintiff gave evidence.And in the course of which she said that the 3rd defendant—
“ transferred all her rights upon deed No. 6087 of 1957 marked P 12to the 8th defendant Don Lewis
A reference to the document P 12 shows that the transferee there was
Carolis Caldera and not Don Lewis. The caption of the case stillreferred to the 8th defendant as H. Carolis Caldera and accordingly whenthe judgment and the Interlocutory Decree (as amended) proceeded toaward the rights under P 12 to the 8th defendant it must be taken to bean adjudication, in terms of the deed, in favour of H. Carolis Caldera andnot in favour of Munasinghe Aratchige Don Luwis.
There was thereafter an appeal by the 1st defendant against the• Interlocutory Decree. This was ultimately dismissed on 31st March,1965. The record was lost at this stage. The next event of note is anapplication dated 9th September, 1965, by the present petitioner Muna-singhe Aratchige Don Luwis to the District Court praying that the Inter-locutory Decree be set aside. He is at this stage represented by a differentproctor. In the caption he has named himself as “ Munasinghe AratchigeDon Luwis of Talangama petitioner ” ; he has omitted the name of CarolisCaldera from among the defendant-respondents ; and the first paragraphof his petition (as also of the affidavit which accompanied it) is to theeffect he “ is the 8th defendant in this case ”. He further goes on to sayeven if he is not the 8th defendant he was a party entitled to notice unders. 22 (1) (a) of the Partition Act.
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The court inquired into this application on 9th February 1966 and 9thMarch 1966, and dismissed the application on the latter date with theremark that the petitioner’s remedy, if any, was by way of revision. Itis of importance to note that the record of the proceedings of the 9thFebruary 1966 gives clear and categorical proof of the fact that CarolisCaldera was present in court on that date. The court makes a specialnote of the fact in the following terms :—
“ The parties present are the plaintiff ; the 8th defendant H. CarolisCaldera, the petitioner Munasinghe Aratchige Don Luwis and the 3rdand 4th defendants.”
After this application was dismissed the petitioner waited another 8months before making the present application to this court, a delaywhich the petitioner has not sought to explain at all. It is significantthat unlike in his application to the District Court the present applicationnames the Carolis Caldera as 8th defendant-respondent, thereby for thefirst time abandoning his attempt which he persisted in for about 7£ yearsto dislodge the 8th defendant and occupy his room in the caption.
TENNEKOON, J.—Don "Lewis v. DiasanayaJee
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These being the facts the first question that arises for consideration iswhether this court should exercise its extraordinary powers of revisionor by way of Restitutio in Integrum in favour of the applicant. Thereis no doubt in my mind that the petitioner was aware of the partitionaction from the date the Surveyor first went on the land. Petitionerhas only himself to blame if he pursued the ill-advised course of tryingto usurp the place of the 8th defendant-respondent. Petitioner could,long before the Interlocutory Decree, have sought to have himselfadded instead of taking the inexplicable course he did. Even after theInterlocutory Decree was entered the petitioner in seeking to intervenepersisted in trying to persuade the District Court that he and CarolisCaldera were one and the same person. Further when his applicationto intervene was dismissed by the District Court (which in its orderexplicitly stated that the petitioner’s remedy if any was by way of anapplication for revision to this court) the petitioner did nothing for8 months. It is not the function of this court in the exercise of the *jurisdiction now being invoked to relieve parties of the consequencesof their own folly, negligence and lache3. The maxim Vigilantibus,non dormientibus, jura subveniunt provides a sufficient answer to thepetitioner’s application on the ground now under consideration.
Further even in his present application to this court the petitioner doesnot display the honesty and frankness which is expected of a personseeking to invoke the extraordinary powers of this court. Instead hetries to make out that the person who had, as Munasinghe AratchigeDon Luwis appeared before the surveyor, filed answer as “ 8th Defdt”and otherwise sought to pass off as 8th defdt, was not himself but anunknown third person—a story which I find extraordinarily difficultto accept.
To take now the case of Carolis Caldera the 8th defendant-respondent :
I am satisfied that this respondent did not receive any summons or noticesince the institution of the action until at least the Interlocutory Decreewas entered. Such a failure to comply with the audi alteram partem rulewould ordinarily be sufficient for this court to set aside the decision of atribunal. But it is equally true that the right to impugn the decision of atribunal for a breach of the audi alteram partem rule may, even in caseswhere the necessity for compliance with the rule is not a matter ofinference but of statutory provision, be lost by acquiescence ; there canalso be cases in which a party may be found to have approbated thedefective proceedings or where, having regard to the applicant’s conduct,the court will not in its discretion set aside the impugned proceedings.
It is therefore necessary to examine the matter further.
It is to be noted as mentioned earlier in this judgment that on 9thFebruary 1965, the date on which petitioner’s application for interventionwas being inquired into by the District Court, Carolis Caldera wasundoubtedly present in court. It is evident that on that date he would
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TENNEJKOON, J.—Don Lewis v. Dissanayake
have become aware, if he had not done so earlier, of the existence of thePartition Action and that the judgment of the District Court had alreadyawarded a l/18th share of the land to him on the basis of the Deed P 12.In the statement of objections filed in these proceedings the 8th defendantstates that—-
“ The 8th defendant-respondent claims certain rights to the saidland sought to be Partition on Deed No. 6087, of 1957, marked P 12in the said Deed and the learned Trial Judge has not given him thoseshare in the Interlocutory Decree. Thus the 8th defendant-respondenthas completely lost his rights on the said Deed No. 6087 of 1957.”
The allegation that he has completely lost his rights on P 12 proceedson the supposition that when the judgment declared the “ 8th defendant ”entitled to a l/18th share, it meant that Munasinghe Aratchige Don Luwiswas entitled to a l/18th share. That is a wrong assumption. Asmentioned earlier, the caption of the case has never been altered by courtand any reference in the judgment or the Interlocutory Decree to “ the8th defendant ” must be taken and read, as it necessarily must, to bea reference to H. Carolis Caldera and not to the present petitioner Muna-singhe Aratchige Don Luwis. In this view of the matter there is anaward of l/18th share to the 8th defendant-respondent Carolis Calderain the Interlocutory Decree. Counsel for the 8th defendant-respondentdid not at the hearing before this court seek to satisfy us that a largershare than 1/18 could be claimed by his client on P 12 or that he hadany other claims to agitate as owner of any plantations or buildings orin any other capacity whatsoever. In the result this court is satisfiedthat the allegation of the 8th defendant-respondent that the omission toserve summons on him has resulted in an Interlocutory Decree whichdeprives him of his rights in the land is unfounded.
There is also the farther fact that having become aware of the judgmentand Interlocutory Decree by the 9th February 1965 at the latest he tookno steps whatsoever to seek the assistance of this court to have thesesupposedly damaging adjudications set aside. This inactivity is onlyexplicable—and no other has been offered by the 8th defendant-respondenthimself—on the basis that he was quite satisfied with the rights givento him in the judgment and was content to leave it undisturbed. It wasonly on the 3rd February 1966, about an year later, that he thought ofmaking an endeavour to have the proceedings in the partition case setaside ; and he does not by initiating proceedings to that end himself butonly by taking advantage of the fortuitous circumstance of the petitionerhaving made this application to this court.
Having regard to what has been said above in regard to the conduct ofthe 8th defendant-respondent I am of the opinion that he has disentitledhimself to obtain relief from this court on the ground of omission to servesummons on him.
TAMBIAH, J.—Chandrasiri v. Wideramasinghe15
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The petitioner and the 8th defendant-respondent also seek to supporttheir applications on the ground that there has been an insufficientinvestigation of title in the court below. The appeal (referred to earlierin this judgment) taken by the 1st defendant against the InterlocutoryDecree was based on substantially the same ground of insufficient investi-gation of title. That appeal having been dismissed by this court (inMarch 1965) I see no reason for this court to re-examine that question.
In the result the application of the petitioner is dismissed with costspayable to the plaintiff-respondent and the 7th defendant-respondent;the application of the 8th defendant-respondent is also dismissed.
Mantcavasagar, J.—I agree.
Applications of the petitioner and the8th defendant-respondent dismissed.