ODIRIS APPUHAMY, Appellant, and CAROLINE NONA , Respondent

058-NLR-NLR-V-66-ODIRIS-APPUHAMY-Appellant-and-CAROLINE-NONA-Respondent.pdf


BASNAYAKE, C.J.—Odiria Appuhamy v. Caroline Nona
241
1964 Present: Basnayake, C.J., Abeyesmidere, J-, and Sri Skanda Rajah, J.ODIRIS APPUHAMY, Appellant, and CAROLINE NONA,
Respondent
8. C. 235/62—D. C. Kalutara, 323JP
Partition action—Absence of due registration of lis pendens—Interlocutory decree—Incapacity of a new party to be added thereafter—Partition Act, as. 3 (I),6 (J) (a), 7, 8 (a), 11, 12 {1), 13 (1),26, 48 (1) (2) (3), 70—Civil Procedure Code,as. 84, 86, 87, 189, 207, 707, 839.
Held (Sbi Seakda Rajah, J., dissenting): Once interlocutory decree has beenpassed in a partition aotion instituted under ^ihe Partition Act, a new party isnot entitled, by invoking the provisions of section 48 (3) of the Act, to interveneand have the interlocutory decree set aside by the Court of first instance on theground that the lie pendens has not been duly registered.
.ApPEAL from a judgment of the District Court, Kalutara.
D. R. P. Ooonetilleke, with S. 8. Sahabandu, for Plaintiff-Appellant.
M. Tiruchelvam, Q.C., with K. Thevarajah and Nihal Jayawickreme,for intervenient 16th Defendant-Respondent.
Cur. adv. vult.
July 8, 1964. Basnayake, C.J.—
This appeal first came up for hearing before my brethren Abeyesundereand Sri Skanda Rajah and because they were unable to agree on thedecree that should be passed it now comes up for hearing before a Benchof three Judges. The questions that arise for decision are—
(а)whether, after the interlocutory decree has been passed in a partition
action instituted under the Partition Act, a party can be added,and
(б)whether the Court that passed the interlocutory decree has power
to set it aside.
Briefly the material facts are as follows :—The present action forpartition was instituted on 28th May 1958. Thirteen persons werenamed as defendants in the plaint. Another person who claimed a partof the land as his exclusive property was added in the course of the pro-ceedings and after investigating the title of the parties the learned DistrictJudge passed an interlocutory decree on 23rd March 1960 and the Btepsfor the partition of the land were under way when on 15th March 1961
LXVI11
2—fi 305—1,855 (8/64)
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BASNAYAKE, C.J.—Odiria Appuhamy v. Caroline Nona
the 16th defendant (hereinafter referred to as the c respondent’)Lewuwanduwe Badalge Caroline Nona filed petition and affidavit andasked—
(а)that the Commission issued for the final partition of the land be
recalled,
(б)that the interlocutory decree be set aside, and
(c) that she be given an opportunity of filing answer.
The petition was inquired into and on 17th April 1962 the learnedDistrict Judge made order setting aside the interlocutory decree andgranting the petitioner aD opportunity of proving her title to the land andrecalling the Commission issued for partition of the land. The presentappeal is from that order. The main points urged before us on behalf ofthe appellant are—
(а)that the Partition Act does not confer power to add a party after
the interlocutory decree has been passed and that the learnedDistrict Judge did what he had no power to do, and
(б)that the Judge had no power to set aside the interlocutory decree
which he had entered or to reverse any of the orders made by himsubsequently.
The respondent sought to support the order of the District Judge mainlyon the ground that lis pendens had not been duly registered and thattherefore the interlocutory decree was null and void and that the DistrictJudge had power to set it aside.
Express provision for the addition of parties is made in section 70 ofthe Partition Act which reads—
“ (1) The court may at any time before interlocutory decree is enteredin a partition action add as a party to the action on such terms as topayment or prepayment of costs as the court may order—
(а)any person who, in the opinion of the court, should be, or shouldhave been, made a party to the action, or
(б)any person who, claiming an interest in the land, applies to beadded as a party to the action.
(2) Where a person is a party to a partition action and his right, titleand interest to or in the land to which the partition action relates aresold, during the pendency of the partition action, in execution of, orunder, any decree, order or process of any court, the purchaser of suchright, title and interest at the sale shall be entitled to be substituted forthat person as a party to the partition action, and such purchaser,when so substituted, shall be bound by the proceedings in the partitionaction up to the time of the substitution.”
The above quoted provision leaves no room for doubt as to the stage ofa partition action at which a party may be added. While a substitutionpnder subsection (2) may be mad© at any time, an addition under
BASNAYAKE, C.J.—Odiris Appuhamy v. Caroline Nona
243
subsection (1) can be made only before interlocutory decree. In addingthe respondent to this appeal as a party to the partition action, thelearned District Judge did what he had no power to do.
Learned counsel for the respondent sought to support the judgment onthe ground that section 48 (3) rendered the interlocutory decree ineffectiveas lis pendens had not been duly registered. Now subsection (3) reads—
“The interlocutory decree or the final decree of partition entered in apartition action shall not have the final and conclusive effect given to itby subsection (1) of this section as against a person who, not havingbeen a party to the partition action, claims any such right, titleor interest to or in the land or any portion of the land to which the decreerelates as is not directly or remotely derived from the decree if, but onlyif, he proves that the decree has been entered by a court withoutcompetent jurisdiction or that the partition action has not beenduly registered under the Registration of Documents Ordinance as alis pendens affecting such land. ”
Section 48 (3) does not render an interlocutory decree null and void forthe reason that lis pendens has not been registered. Subsections (1), (2)and (3) of section 48 indicate that under the Partition Act a decree isfinal as between the parties unless it is set aside in appeal. The materialportion of subsection (1) reads—
“ Save as provided in subsection (3) of this section, the interlocutorydecree entered under section 26 and the final decree of partition enteredunder section 36 shall, subject to the decision on any appeal which maybe preferred therefrom, be good and sufficient evidence of the title of anyperson as to any right, share or interest awarded therein to him and befinal and conclusive for all purposes against all persons whomsoever,whatever right, title or interest they have, or claim to have, to or inthe land to which such decrees relate and notwithstanding any omissionor defect of procedure or in the proof of title adduced before the Courtor the fact that all persons concerned are not parties to the partitionaction; and the right, share or interest awarded by any such decreeshall be free from all encumbrances whatsoever other than thosespecified in that decree. ”
Subsection (2) reads—
“ The interlocutory decree and the final decree of partition enteredin a partition action shall have the final and conclusive effect declaredby subsection (1) of this section notwithstanding the provisions ofsection 44 of the Evidence Ordinance, and accordingly suchprovisions shall not apply to such decrees. **
The three subsections taken collectively indicate that notwithstanding—
(а)any omission or defect of procedure, or
(б)in the proof of title adduced before the court, or
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SRI SKANDA RAJAH, J.—Odiria Appuhamy v. Caroline Nona
(c) the fact that all persons concerned are not parties to the partitionaction—
the decrees are final and conclusive against all persons whomsoeverexcept against a person who has not been a party to the partition actionand claims a title to the land independently of the decree. Such aperson must assert his claim in a separate action and can only succeed if—
(а)he proves that the decree had been entered by a court without
competent jurisdiction, or
(б)that the partition action has not been duly registered as a lis
pendens.
The present claim is one to be added as a party to the partition actionand does not fall within the ambit of that provision. The District Judgehas no power to set aside his own decree. All decrees passed by theCourt are, subject to appeal, final between the parties (sec. 207 Civil Proce-dure Code) and may not be varied except in the circumstances set out insection 189 of the Code which empowers the Court to correct any clericalor arithmetical mistakes in any judgment or order or any error arisingtherein from any accidental slip or omission. The Court may also makeany amendment which is necessary to bring a decree into conformity withthe judgment. There is no inherent power in a Court of subordinatejurisdiction to set aside its own decree even though it be wrong. It wouldbe proper to quote here the following observations of the Privy Councilin Piyaratana Unnanse v. WahareJce Sonuttara Unnanse 1—
*'…. The general rule is clear that once an Order is passed
and entered or otherwise perfected in accordance with the practice ofthe court, the court which passed the Order is functus officio and cannotset aside or alter the Order however wrong it may appear to be. Thatcan only be done on appeal. ”
Power to amend its own decree must be expressly conferred on a sub-ordinate Court as has been done in sections 84, 86, 87 and 707 of the Code.
We therefore allow the appeal and set aside the order of the DistrictJudge with costs here and below, and refuse the application of the res-pondent to be added as a party. It would be profitless to refer to casesdecided under the repealed Partition Ordinance, as the present enactmentexpressly lays down the time before which a party may be added.
Abeyesundere, J.—I agree.
Sbi Skanda Rajah, J.—
If I begin by remarking that this appeal was argued by this Court,with occasional assistance from the learned Counsel who appeared for theparties, I will only be following, with respectful agreement, two learnedand experienced Judges, eminent in their countries, though theirobservations are " not binding ” on this Court.
1 (1950) 61 N. L. R. 313 at 316.
SRI SKANDA RAJAH, J.—Odiris Appuhamy v. Caroline Nona245
In Elliot v. Duchess Mill [(1927) 1 K. B. 182], which came up beforethe Court of Appeal consisting of Lord Hanworth, M.R., Scrutton, L.J.,and Romer, J., at 201, Scrutton, L.J., commenced his judgment, “TheCourt, with occasional assistauce from counsel, took more than a day indiscussing this case”
In The Federal Commissioner of Taxation v. Hojfnung & Co., Ltd.,(1928) 4 C. L. R. 39, which came up before the Full Court consisting ofIsaacs, Higgins and Starke, JJ., at 62, Starke, J., commenced his judg-ment, “ This is an appeal from the Chief Justice, which was argued bythis Court over nine days, with some occasional assistance from the learnedand experienced Counsel who appeared for the parties. The evidencewas taken and the matter argued before the Chief Justice in two days.This case involved two questions, of no transcendent importance, whichare capable of brief statement, and could have been exhaustively arguedby learned counsel in a few hours. ”
This is a partition action filed on 21.6.1958, i.e., after the new PartitionAct 16 of 1951 came into operation. Interlocutory decree was enteredon 25.3.1960. On 15.3.1961 one Caroline Nona (Respondent to thisappeal), who was not a party to this action, filed petition and affidavitalleging, inter alia, that this action had not been duly registered as a lispendens, in that it was not registered in the correct folio, and prayedthat the interlocutory decree be set aside. After inquiry the learned,Additional District Judge made order on 17.4.1963 setting aside theinterlocutory decree on the ground stated above. This appeal is from thatorder.
It seems appropriate to reproduce certain provisions of the PartitionAct:
Section 3 (1)—Every partition action shall be instituted by presentinga written plaint to the court, …
Section 6 (1)—The plaintiff in a partition action shall file or cause to befiled in court with the plaint—
(a) …. an application (in. duplicate vide sub-section(2)) for the
registration of the action as a Us pendens addressed to theRegistrar of Lands …
»
Section 7—Where the plaintiff in a partition action fails to complywith the requirements of …. section 6, the court may—
(а)return the plaint so that the plaintiff may, …. comply
with those requirements, or
(б)reject the plaint .
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SRI SKANDA RAJAH, J.—OdLiris Appuhamy v. Caroline Nona
Section 8—Where the plaint in a partition action is accepted, the courtshall forthwith—
(a) cause to be inserted in each copy of the application for the regis-tration of the action as a lis pendens a reference to the numberassigned by the Court to the action, and transmit the appli-cation in duplicate to the Registrar of Lands of each land registryin which the action is to be registered as a lis pendens ;
Section 11—A Registrar of Lands to whom an application for the regis-tration of a partition action as a lis pendens has been transmitted by acourt under section 8 shall, upon registration of the action as a lispendens,return to the court the duplicate of the application duly endorsed in themanner prescribed by the Registration of Documents Ordinance. …
Section 12 (1)—After a partition action is registered as a lispendens
… (proctor to file declaration).
Section 13 (1)—Where the court is satisfied that a partition action hasbeen registered as a lis pendens . . . the court shall order that
. . summonses . . . . shall be issued ….
Section 26—(deals with the entering of interlocutory decree).
Section 48 (1)—Save as provided in subsection (3) of this section,the interlocutory decree entered under section 26 and the final decree ofpartition entered under section 36 shall, subject to the decision on anyappeal which may be preferred therefrom, be good and sufficient evidenceof the title of any person as to any right, share or interest awarded thereinto him and be final and conclusive for all purposes against all personswhomsoever, whatever right, title or interest they have, or claim to have,to or in the land to which such decrees relate and notwithstanding anyomission or defect of procedure or in the proof of title adduced before thecourt or the fact that all persons concerned are not parties to the partitionaction ; and the right, share or interest awarded by any such decreeshall be free from all encumbrances whatsoever other than those specifiedin that decree.
The interlocutory decree and the final decree of partition entered ina partition action shall have the final and conclusive effect declared bysubsection (1) of this section notwithstanding the provisions of section 44■of the Evidence Ordinance, and accordingly such provisions shall not applyto Much decrees.
The interlocutory decree or the final decree of partition entered in apartition action shall not have the final and conclusive effect given toit by subsection (1) of this section as against a person who, not havingbeen a party to the partition action, claims any such right, title or interestto or in the land or any portion of the land to which the decree relates asis not directly or remotely derived from the decree if, but only if, he provesthat the decree has been entered by a court without competent jurisdictionor that the partition action has not been duly registered under the Regis-tration of Documents Ordinance as a lis pendens affecting such land.
SRI SKANDA RAJAH, J.—Odiria Appuhamy v. Caroline Nona
247
Section 70 (1)-—The court may at any time before interlocutory decreeis entered in a partition action add as a party to the action, on such termsas to payment or prepayment of costs as the court may order—
(а)any person who, in the opinion of the court, should be, or should
have been, made a party to the action, or
(б)any person who, claiming an interest in the land applies to be added
as a party to the action.
Where a person is a party to a partition action and his right, titleand interest to or in the land to which the partition action relates are sold,during the pendency of the partition action, in execution of, or under, anydecree, order or process of any court, the purchaser of such right, title andinterest at the sale shall be entitled to be substituted for that person asa party to the partition action, and such purchaser, when so substituted,shall be bound by the proceedings in the partition action up to the timeof the substitution.
From the provisions reproduced above the following emerge :—
Where a plaint in a partition action is filed it may be either
accepted or rejected by the Court.
If the Court accepts the plaint a number should be assigned to
it. From that moment it would be pending.
Thereafter steps should be taken to register the action as a
lis pendens.
Summons can issue only after the lis pendens is registered. To
put it another way, registration of lis pendens is a condition
precedent to the issue of summons.
Before interlocutory decree the court may add parties.
In section 48 (3) want of due registration of the lis pendens is
equated v'ith such a fundamental matter as want of jurisdiction
of the court in the sense of the power to act at all.
It is elementary that every act of a court which lacks jurisdictionin the sense that it has no power to act at all is void and not merelyvoidable.
Anyone who has even a passing acquaintance with the procedure inthe original courts would know that if, after the issue of summons, itis discovered that the lis pendens has not been duly registered, i.e., notregistered in the correct folio, then the court orders that the lis pendensbe duly registered, i.e., in the correct folio. After that order is carriedout fresh summons is issued. This is done in the exercise of the Court’sinherent powers, though there is no special provision in the PartitionAct requiring this procedure to be adopted. In Wijeyesinghe v. Uluwita1Macdonell, C.J., said, “ …. I cannot help thinking that a DistrictCourt has the power to recall process which it has issued improvidently,that is to say, on information which is or which is alleged to be insufficientand misleading. It seems clear from section 839 that a District Court
1 {1933) 34 N. L. R. 362 at 364.
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SRI SKAJNDA RAJAH, J.—Odiria Appuhamy v. Caroline Nona
has inherent powers, and the various authorities cited to us in argumentsupport this view. It would indeed be extraordinary if such courthas not the power of vacating an order which had been obtained fromit on insufficient or inaccurate information and there is abundantauthority that it has that power.”
The reason for doing so is that want of due registration of lis pendenshas the same effect as failure to register the lis pendens at all and rendersthe issue of summons and all further proceedings null and void. Evenan interlocutory decree entered under such circumstances would benull and void.
If all the proceedings from and after the registration of lis pendensare null and void, the resulting position would be that the action isstill pending,, and any person who has not been made a party will havethe right to intervene and to be added as party.
In an unreported case, S.C. 74—D C. (Inty.) Colombo 8115 P: S. C.Minutes .of 3.2.1961, Sansoni, J., with whom Tambiah, J., agreed, said,“ The learned District Judge has found that lis pendens was not dulyregistered. In view of that finding, it appears to us that summonsshould not have been ordered to issue on the defendants, since thecorrect registration of the lis pendens was a necessary step to have beentaken by the plaintiff before such an order was made. We thereforeset aside the interlocutory decree entered in this case and all proceedingstaken at the trial. The case will go back in order that the plaintiffmight register the lis pendens correctly. Thereafter, summons maybe issued on jdie defendants, and the intervenient will also have anopportunity of putting forward his claim. A fresh commission to surveythe land must also be issued. As all proceedings that have taken place sincethe filing of the plaint are bad, proceedings must commence de novo.”
In Noris v. Charles1 Sinnetamby, J., with whom H. N. G. Fernando, J.,agreed, held that it is not open to a new party to intervene to have adecree set aside on the ground that lis pendens was not registered inthe correct folio. The learned Judge took the view that to permit thiswould be to unduly prolong partition actions and thereby defeat thepurpose of the new Partition Act.
Section 48 (3) restricts the grounds depriving an interlocutory decreeof its “final and conclusive” character to : (1) want of jurisdiction in thecourt; and (2) want of due registration of lis pendens. The determi-nation of one or the other or both these will not take an unduly longtime. There was no such restriction under the old Partition Ordinance.Therefore, it was that repeated interventions were possible and parti-tion actions took many years. But, once these matters are decided,there can be no further interventions.
It behoves the court which enters a “ final and conclusive ” decree,to satisfy itself that it had jurisdiction and/or the lis pendens was
1 (1961) 63 N. L. R. 501.
SRI SKANDA RAJAH, J.—Odirio Appuhamy v. Caroline Nona
249
duly registered when such a matter is brought to its notice, regardless ofthe source of information being an outsider and the stage at which it ismade aware. This power is inherent.
In considering the effect of section 48 (3), Sinnetamby, J., said at 503,
“ In the case of persons who are not parties to the action, however,sub-section 3 provides, inter alia, that the fact that the lis pendenshad not been properly registered would deprive the decree of its finaland conclusive effect.” With respect I would agree. But with respectI am unable to agree with the learned judge’s further statement, “ Thisdoes not mean that he is entitled to intervene and have the interlocutorydecree set aside.” Why should a person wait till action is taken onthe decree which in reality is no decree at all ? Why cannot he go tothe court and intimate to it one or both these grounds ? In order to doso and to prove his allegation he will have to be permitted to intervene.
Section 48 (3) is concerned with a person who was not a party tothe partition action. It only places the burden on a person who wasnot a party to the partition action to prove want of jurisdiction in thecourt or want of due registration of the lis pendens, as the case may be.It does not lay down the procedure he should adopt for doing so. Itdoes not say that he should wait till “ steps are taken against him underthe partition decree ” ; nor does it say that he should wait till “ hisproprietory rights are in any way challenged in other roceedings ,as stated by Sinnetamby, J., at 504 in Noris v. Charles (supra).
The observation of the learned judge that the question whether thelis pendens was duly registered will arise only if steps are taken againsthim under the partition decree carries with it the implication that,if steps are taken under the partition decree, e.g., to be placed inpossession, he will be entitled to show in the partition action itself, thatthere was want of due registration. If he can do so at that stage, whyshould he not be permitted to do so without waiting till then 1
Section 70 is a permissive or enabling provision regarding additionof parties before interlocutory decree is entered. It is not exhaustive.It should not be construed as prohibiting the addition of partiesaltogether after interlocutory decree regardless of its validity. In theabsence of express provision prohibiting the addition of parties afterinterlocutory decree the Court will have to act on the principle thatthe non-observance of an essential step such as due registration of lispendens renders the proceedings void and puts back the partition actionto the stage of the acceptance of the plaint by the court.
Due registration of lis pendens, like due service of summons on a party,is an essential step. Failure to comply with either would not comewithin the term “omission or defect of procedure” in section 48 (1).These words should be confined to omissions or defects of much morevenial character as pointed out by Sansoni, J., in Siriwardene v.Jayasumana x.
1 {1958) 59 N. L. U. 400.
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SRI SRANDA RAJAH, J.—Odiris Appuhamy v. Caroline Nona
This view derives support from the judgment of T. S. Fernando, J.>with whom Abeyesundere, J., agreed in Victor Perera v. Don Jinadasa1,which I discovered after judgment was reserved and to which I havedrawn the attention of My Lord the Chief Justice and brother Abeye-sundere. The caption reads thus :—
In partition suit No. 7059 R, who was added as a party, did nottake any action herself in respect of the suit and did not participateat the trial. After interlocutory decree was entered she attemptedto intervene in the suit in order to obtain either a dismissal of thesuit or an exclusion of lots 1 and 2 in the corpus. Her attempt provedunsuccessful. Thereafter she transferred her rights in lots 1 and 2to V.P. Relying upon this deed of transfer, V.P. instituted thepresent action No. 8576 claiming a declaration of title to lots 1 and 2,citing as defendants all the persons who had been allotted sharesin the interlocutory decree which dealt with lots 1, 2 and 3 as onecorpus. He claimed that, inasmuch as the partition action had notbeen duly registered as a lis pendens, his right to a declaration ofhis title was unaffected by the interlocutory decree.
Held, that under section 48 (3) of the Partition Act the trial judgewas obliged to address his mind to the question of due registration ofthe partition action as a lis pendens.
R. was already a party to the partition action 7059 when inter-locutory decree was entered. Therefore, if that was a valid decree orthe court had jurisdiction to enter it, not only R. but also her successorin title V.P. would be bound by it and by the final decree. I haveexamined the record in 8576, the issues, the learned District Judge’sanswers to them and the petition of appeal and find that, inter alia,,the following points were before this Court for decision in appeal:
If lis pendens was not duly registered :—
(а) V.P., the appellant who derived title from R., would not be
‘ bound by the interlocutory decree in 7059 in spite ofsection 48.
(б)The interlocutory decree could not operate as res judicata
because the court had no jurisdiction to enter it.
The question of due registration of lis pendens, to which this Court,directed the District Judge to address his mind, would arise only if R.and, therefore, her successor in title V.P. were not bound by the inter-locutory decree. This judgment can be explained only on the footingthat if the lis pendens is not duly registered both the interlocutory andfinal decrees do not have the “ final and conclusive ” effect sought to-be conferred on them by section 48 (1) and (2) even as regards partiesto the partition action. . That would seem to be because due registrationis an essential step and not an “ omission or defect of procedure .
The learned Additional District Judge was right in permitting therespondent to intervene. All proceedings since the acceptance of theplaint are bad. Therefore, proceedings should commence de novo. Jwould dismiss the appeal with costs.Appeal allowed.
* (1962) 65 N. L. B. 451.