028-NLR-NLR-V-41-MAPALATHAN-v.-ELAYAVAN.pdf
SOERTSZ J.—Mapalathan v. Elayavan.
115
1939Present: Soertsz J.
MAPALATHAN v. ELAYAVAN.15—C. R. Point Pedro, 28£62.
Revision or restitutio in integrum—Mistake in translation of a document—
Decision in appeal—Materiality of error—Civil Procedure Code, s. 753—
Courts Ordinance, ss. 19, 36, and 37 (Cap. 6).
The Supreme Court has no power to revise or review a case decided byitself.
Relief by way of restitution on the ground of justus error will not begranted to a narty who has failed to place before the Court matter, whichwas at his command, if reasonable diligence had been exercised.
In order to succeed in an application for restitution the petitioner mustshow that the fact was not merely material but of such vital and essentialmateriality that it must have altered the whole aspect of the case.
rpHIS was an application for restitutio in integrum or revision.
S. J. V. Chelvanayagam (with him A. Muttucumaru), for petitioners.
N. Nadarajah, for respondent.
Cur. adv. vult.
March 19, 1939. Soertsz J.—
In this matter the petitioners pray that by “ way of restitutio in integrumor by way of revision”, the judgment of this Court pronounced by deKretser J. on May 31, 1938, be set aside and that the judgment of theCourt of Requests dated September 30, 1937, be restored and affirmed.
This prayer is based on the allegation that my brother reached theconclusion he did, because the translation of document D 2 filed in thecopy supplied to him at the argument of the appeal, led him to think thatthere were only two transferors on that deed, whereas, in point of fact, theoriginal deed filed of record shows that there were four transferors. Theimplication of this allegation is that, but for this misapprehension of theeffect of deed D 2 my brother must inevitably have reached a conclusionin favour of the petitioners. For it is only on that basis that theapplication can succeed if at all.
Before I examine the facts, I would point out that this application,in so far as it purports to be an application for the exercise of this Court’srevisionary powers, cannot be entertained. I respectfully share theview taken by Withers J. in Loku Banda v. Assen.1 The combined effectof sections 19, 36, and 37 of the Courts and their Powers Ordinance andof section 753 of the Civil Procedure Code is to give the Supreme Courtpower to deal by way of revision with cases tried or pending trial inoriginal Courts, and not with cases, decided by the Supreme Court itself.
Withers J. however, took the view that the Supreme Court couldreview its judgment passed in appeal. For this he relied on Ex parteGordon re Gordon v. Assignees of Brodie & Co.’s estate* That case wasdecided in 1879, ten years before the Civil Procedure Code. It takes forgranted that in certain circumstances the Supreme Court has power to
review its own judgment.
1 2 N. L. P.. 311.
2 2 s. c. c. ms.
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SOERTSZ J.—Mapalathan v. Elayavan.
In Thamotheram v. Hensman' Wendt J. doubted this view of Withers J.and I venture to share that doubt. It is significant as pointed out byWithers J. himself that our Code of Civil Procedure enacted in 1889 didnot take over the provisions in the Indian Code of 1882 in regard to thereview of judgments, while it took over substantially the provisions inregard to revision. Perhaps this was due to the fact that it was thoughtthat the object which the provisions relating to the review of judgmentsaimed at could be attained in our Courts by proceedings for restitutio inintegrum.
It is true that at one time the question was raised whether restitutio inintegrum could be properly held to form part of the law of Ceylon inthe absence from the Courts Ordinance and the Code of Civil Procedureof any provision enabling the Supreme Court to grant relief by way ofrestitutio in integrum, and in view of the power of revision enjoyed by theSupreme Court. But in Abeyesekere v. Haramanis Appu* it was held byWood Renton and Grenier JJ. that the remedy of restitutio in integrumis one which has taken deep root in the practice and procedure of ourCourts and that it is too late that this remedy ought no longer to berecognized.
therefore, address myself to the present petition only to consider theapplication for restitutio in integrum. Now, in the words of Voet “ resti-tutio in integrum is extraordinarium remedium, not to be given, (a) wherethere is some other remedy available to the person seeking restitutio.Sed nec tunc plerumque restitutioni locus datur, cum alind ordinariumaeque pingue ad indemnitatem remedium a jure comparatum est; (b) It isnot to be given for the mere asking non tamen cuivis -restitutionempetente, causamque alleganti, ea promiscue concedenda est, sed causademum cognita, an nempe vera an justa, an satis gravis sit; (c) It is notto be given unless it is sought within a certain period. Nec omnitempore ad restitutionis remedium patet aditus”. In regard to (b) Voetgoes on to say that “ causae justae restitutionis sunt, metus, dolus,minor, aetas, capitis, diminutio, absentia, alienatio judicii mutandi causa,justus error ”. In addition to these, the discovery of fresh evidence,res noviter veniens ad notitiam is recognized as a good ground for givingthis relief provided, of course, it is evidence which no reasonable diligencewould have helped to disclose earlier. (Voet IV. I, passim.)
So far as the present application is concerned, Counsel for the respondenttakes no objection to it on the ground either that there is some otherremedy available to the petitioner or on the ground that the applicationis not made within reasonable time. But, he contends that the mistakewhich the petitioner relies on is not such a mistake as falls within themeaning of justus error. He says that the mistake referred to was amistake which would not have occurred if the petitioner had presentedhis case with due care, and also that the petitioner is not in a position toshow that but for the mistake the Judge who heard the appeal could notbut have reached a conclusion in his favour.
The judgment delivered on the appeal makes it quite clear that theargument proceeded on the footing that only two of the four thombuholders were transferors on deed D 2. The learned Commissioner had
1 4 Bal. 68.
> tt S. b. R. 3 5.1.
Mutual Loan Agency, Ltd. v. Dharmasena.
117
stated definitely in his judgment that all four of them had transferred.This, in my opinion, should have put the petitioners' Counsel on inquiryas to the reason for that statement of the Commissioner, and the least hecould have done was to examine the original of deed D 2. If he had donethat, he would have seen at a glance that all four had put their marks tothat deed. He was, however, content to acquiesce in the view taken bythe Judge on appeal, who went on the assumption that the translationof deed D 2 in the copy furnished to him was correct, and that accordingto the translation only two of the four were transferors. These facts aresimilar to those in the case before Wendt J. to which I have alreadyreferred (Thamotheram v. Hensman). In that case Wendt J. refused tointerfere by way of restitutio in integrum because as he said: “ It is notsuggested that my conclusions are not warranted -by the materials placedbefore me. The parties are themselves to blame for having put beforethe Court only part of the evidence which they had at their command.There is no suggestion of any fraud ”. Here too, there is no suggestion offraud, and the matter now relied upon must be regarded as a matter atthe command of the petitioners if reasonable diligence had been exercised.It was not res noviter veniens ad notitiam. Moreover, in this case, I amnot satisfied, that if the fact that all the -four thombu holders were partiesto D 2 had been put before the Judge on appeal he would necessarily havereached a different conclusion. D 2 was an unregistered deed of 1804and as such it could not be relied upon for the purpose of creating ortransferring the rights of the transferors. Indeed, D 2 was producedexpressly for the purpose of serving as a starting point for a prescriptivetitle the petitioner relied upon. In the result, the most that can be saidon behalf of the petitioners is that, in view of the inadequate translationof D 2 furnished to the Appeal Judge, he overlooked a material fact. Butfor the petitioners to succeed in an application for restitutio in integrumthey must show that the fact was not merely material but of such vitaland essential materiality that it must have altered the whole aspect ofthe case.
I therefore refuse this application with costs.
Application refused.