013-SLLR-SLLR-2010-V-2-NAVARATNE-MANIKE-vs.-PADMASENA-AND-OTHERS.pdf
Navaratne Manike vs. Padmasena and others
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CA
NAVARATNE MANIKE VS. PADMASENA AND OTHERSCOURT OF APPEALSRISKANDARAJAH. J.
CA 1082/2003 (REV)
DC KURUNEGALA 4530/PJUNE 20, 2007
Partition Law – Section 19(3) – Section 24, Section 25(2) -Section 48 – Failure to file statement of claim – Failure toregister address and tender costs – Mandatory? Due diligence -Dose Revision lie?
The defendant-petitioner a claimant before the Surveyor was made aparty – but did not file a statement of claim. He was absent on the trialdates, and judgment was entered.
It was contended that, court has failed to follow the mandatoryprovisions of Section 24 – which provides that Court shall give notice inwriting the date of trial to all parties by registered post.
Held
Per Sriskandarajah, J.
“Petitioner when complaining that the mandatory provisions ofSection 24 is not complied with he should have satisfied this Courtthat he has furnished a registered address and tendered the costsof such notice as provided by Section 19 (3) – as he has not shownthat he has furnished a registered address and tendered the costsof notice he is not entitled to claim that he was not noticed underSection 24”.
APPLICATION in Revision from an order of the District Court ofKurunegala.
Cases referred to:*
Somawathie vs MadaweZa – 1982 Sri LR 15
Perera and other vs. Adline and others – 2000 3 Sri LR 93Lakshman Perera for petitioner.
Kapila Perera for respondent.
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[2010] 2 SRJ L.R.
June 20th 2009SRISKANDARAJAH. J.
The above Partition action was instituted by the Plaintiffof partition the land called ‘Munhena’ described in theschedule to the plaint of the said Partition action. Accordingto the said plaint the Plaintiff had been allotted V2 share and1st Defendant has been allotted '/a share of the land describedin the schedule. The plaint has described the 2nd DefendantRespondent as a person who was in forceful occupation ofa portion of the land sought to be partitioned. The courtissued a commission on K. Wijerathna L.C. for thepreliminary survey. The surveyor has submitted to court thepreliminary plan No. 173 dated 06.10.1997 and the report.The 3rd Defendant Petitioner (hereinafter referred to as thePetitioner) was a claimant at the said survey and was madea party to the said case on 07.01.1998. On that date thePetitioner obtained a date to file a statement of claim. But theperusal of the journal entries shows that the Petitioner didnot file any statement of claim.
On the 1st date of trial i.e. the 30th of July 2002 and the2nd date of trial i.e. 5th September 2002, the 2nd DefendantRespondent and the 3rd Defendant Petitioner were absent andunrepresented. As the said 2nd Defendant Respondent andthe 3rd Defendant Petitioner are absent and unrepresentedon the trial dates and as they have not filed a statement ofclaim the learned trial judge has correctly observed in hisjudgment that the said 2nd Defendant Respondent and the 3rdDefendant Petitioner are not contesting parties in thisaction.
Section 25(2) of the Partition Law Provides:
25(2). If a defendant shall fail to file a statement of
claim on the due date the trial may proceed ex parte as
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Navaratne Manike vs. Padmasena and others
(S. Sriskandarajah. J.)
167
against such party in default, who shall not be entitled,without the.leave of court, to raise any contest or disputethe claim of any other party to the action at the trial.
The 3rd Defendant Petitioner’s allegation that the liependens has not been duly registered was not substantiated.The Land Registry extracts marked P6 shows that the liependens has been duly registered.
The 3rd Defendant Petitioner contended that the courthas failed to follow the mandatory provisions of Section 24which provides that the court shall give notice in writingthe date of trial to all parties by registered post. The 3rddefendant Petitioner when complaining to this court that themandatory provisions of Section 24 is not complied with,he should have satisfied this court that he has furnished aregistered address and tendered the costs of such notice asprovided by subsection(3) of section 19. As he has not shownthat he has furnished a registered address and tendered thecosts of notice he is not entitled to claim that he was notnoticed under Section 24 of the said Law.
The learned District Judge after considering theevidence of the substituted Plaintiff Respondent and the1(b) Substituted Defendant Respondent and after satisfyinghimself with the title of the said parties and the identity ofthe land to be partitioned has delivered the judgement andentered the Interlocutory Decree. In Somawathie v. Madawelaand others the court held; although Section 48 investsinterlocutory and final decrees entered under the PartitionAction with finality the reversionary powers of the AppealCourt are left unaffected. The position is the same under thePartition Law. In the same case the Court held the Court
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of Appeal can intervene by way of revision, to prevent amiscarriage of justice. In this case the 3rd DefendantPetitioner has failed to show any ground that would havecaused miscarriage of justice.
In Perera and Others v. Adline and OthersJayawickrema, J. held:
“Although in an appropriate case this Court hasjurisdiction to act in Revision and restitution-in-integrum, but where a party has deliberately not showndue diligence even after he was notified by the Surveyorto appear in Court and fails to apply to be added as aparty, this Court will not exercise its jurisdiction in hisfavour.”
In this instant case the 3rd Defendant Petitioner has notshown due diligence even after he was added as a party tothe action, under these circumstances the 3rd DefendantPetitioner is not entitled to invoke the reversionaryjurisdiction of this court. For the aforesaid reasons this courtdismisses this application without costs.
application dismissed.