022-NLR-NLR-V-79-2-P.-BEMPY-APPUHAMY-and-others-Petitioners-and-J.-K.-PETER-RANASINGHE-and-.pdf
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SAMARAKOON, C. J.—Appuhatny v. Manasinghi
1978 Present: Samarakoon, C.J., Thamotheram, J. andWanasundcra, J.
P.BEMPY APPUHAMY and OTHERS, Petitionersand
J.K. PETER RANASINGHE and OTHERS, RespondentsS.C. Application No. 219 of 1976
Partition Law, No. 21 of 1977, sections 4S (3), 67, 74, S2—StampOrdinance (Cap. 8), Schedule A Part 11—Application to SupremeCourt by way of revision—Stamping—Are such proceedingsexempt from stamp duty—Partition Act (Cap. 69), section 75—Administration of Justice Law, sections 11, 662 (1).
An application by way of revision to the Appellate Court in apartition action is a pleading in such an action and all papers filedin such proceedings are exempt from stamp duty. It is clear thatthe Legislature intended all matters connected with partition pro-ceedings to be so exempt.
Application in revision in terms of sections 11 and 354 ofthe Administration of Justice Law, No. 44 of 1973.
J. Walpola, with C. O. FonseJca, for the petitioners.
W. Jayewardene, Q.C., with Miss P. Seneviratne, for therespondents.
✓
S. Silva, Senior State Counsel, for the Attorney-General.
Cur. adv. vult.
March 21, 1978. Samarakoon, C.J.
The petitioner was the twenty-second defendant' in a PartitionAction No. 13057/P of the District Court of Gampaha filed bythe plaintiffs-respondents for the partition of a land calledDambugahawatta. Interlocutory Decree for partition was enteredon 4.8.1975 (P4). For certain reasons, which are not relevant inthis application, the petitioner was dissatisfied with the Inter-
SAMARAKOON, C. J.—Appuhamy v. Ranasinghe
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locutory Decree. Hence this application for Revision. As was thepractice stamp duty was levied on the documents filed, Rs. 78being the class stamps. This was levied upon the claim thatrevision proceedings are independent proceedings initiated inthe Supreme. Court and covered by Schedule A Part II of theStamps Ordinance. The petitioners and the respondents contestthis liability. They state that these being proceedings in a parti-tion action no stamp duty is leviable in law. State Counsel whoappeared as amicus curiae contended that the papers filed inthis application were not papers filed “ under ” the PartitionAct. Section 75 (1) of the Partition Act, No. 16 of 1951 (Cap. 69)stated the exemption thus : —
“ All pleadings and processes and all documents filed orproduced in a partition action under this Act shall be exemptfrom stamp duty. ”
Section 662 (1of the Administration of Justice Law, No. 25 of1975, and section 74 of the Partition Law, No. 21 of 1977, grantedthe same exemption. The provisions of the latter Law will applyto these proceedings (vide section 82). Admittedly an appealfrom an order in a partition action is exempt from stamp dutyby reason of the fact that it is an appeal filed in terms of section67 of the Partition Law and therefore filed in terms of the Parti-tion Law. Is a Revision Application one " filed in a PartitionAction under this Law ” within the meaning of section 74 of LawNo. 21 of 1977 ? Counsel for the respondents submitted that thepower of revision is an exercise of the appellate jurisdiction ofthis Court. He referred to section 11 of the Administration ofJustice Law, No. 44 of 1973. the marginal note of which reads“ Appellate jurisdiction of the Supreme Court ”. It grants theSupreme Court sole and exclusive jurisdiction by way of appeal,revision and restitutio in integrum. Counsel therefore argued thatthe exercise of the power of revision is also an exercise of theappellate jurisdiction of this Court, and therefore a revisionapplication in respect of an Interlocutory Decree in a partitionaction would be free of stamp duy by reason of the fact thatsection 67 of the Partition Law permits an appeal. I am unableto agree with this contention. The jurisdiction to deal with amatter by “ way of appeal ” is independent of the jurisdiction todeal with a matter by way of revision. When an appeal is lodgedby a party under the provisions of section 67 of the PartitionLaw he invoke the jurisdiction of this Court “by way of appeal ”as conferred by section 11 of the Administration of Justice Law,No. 44 of 1973. They are distinct and independent powers.
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SAMARAKOON, O. J.—Appuhamy i>. Ranasinyhc,
However section 48 (3) of the Partition Law recognises thepower of the Supreme Court to deal with an InterlocutoryDecree by way of revision. The proviso to section 48 (3) readsas follows : —
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“ The powers of the Supreme Court by way of revisionand restitutio in integrum shall not be affected by the provi-sions of this subsection.”
It is clear that the Partition Law itself recogn:zes the powerof the Supreme Court deal with partition cases by way ofrevision. An application by way of revision therefore is apleading filed in a Partition Action. The words “ under this Law ”is descriptive of the word “ action ” and not of the words pre-ceding it. There is another reason for such a result. All revisionproceedings dealing with the Interlocutory Decree and any ordermade by way of revision will necessarily affect that decree. Allpleadings, processes, documents and orders made by the SupremeCourt in such proceedings affecting the Interlocutory Decree,became part and parcel of the record in the partition action. Ifone looks at the intention of legislature it is clear that it intendedall matters connected with partition proceedings, to be exemptfrom stamp duty. It would be fatuous to hold that the legislatureintended only one part of the appellate jurisdiction to be free ofstamp duty and not the other part of its jurisdiction even thoughthis latter is part of partition proceedings. Whether by way ofappeal or revision all pleadmgs invoking the Supreme Court’sjurisdiction in a-partition action are pleadings in a partition action.I therefore .hold that all papers filed in these proceedingsare exempt from stamp duty. The Registrar is directed to actaccordingly.
Thamotheram, J.—I. agree.
Wanasundera, JT.—I agree. ■
. Proceedings exempted from stamp duty.