033-SLLR-SLLR-2008-V-2-PANDIWELA-v.-ASHOKA-AND-OTHERS.pdf
312Sri Lanka Law Reports[2008] 2 Sri L.R
PANDIWELAvASHOKA AND OTHERSCOURT OF APPEALEKANAYAKE, J.
SARATH DE ABREW, J.
CALA 550/2002 (LG)
DC KULIYAPITIYA 12091/PJULY 10. 2006DECEMBER 15, 2006
Partition Law – Section 30, Section 48(1) – Section 48(4)(c) – Section 48(4)(d) – Applicability – Procedure – Mandatory? Failure – Is it fatal? EvidenceOrdinance – Section 33
It was contended that the failure on the part of Court to comply with (a) Section48(4)(c) – to consider granting special leave upon such terms and conditions,(b) Section 48(4)(d) – after granting special leave to settle in the form of issuesthe questions of fact and law arising from the pleadings and failure tothereafter appoint a date for the trial and the determination of issues – and notgiving reasons – has occasioned a failure of justice.
Held:(1)The learned District Judge has amalgamated the inquiry and the trialenvisaged in Section 48(4)(c) and (d) of the Partition Law into oneproceeding and delivered an order turning a blind eye to the statutoryimportant requirements contained in Section 48(4)(a)(d). If issues hadbeen raised and a proper trial on a given future date had been held, it
Pandiwela v
CAAshoka and Others (Sarath de Abrew, J.)313
would have afforded the petitioners an opportunity to call evidence andchallenge the position taken up by the plaintiff which tantamount to amiscarriage of justice.
Per Sarath de Abrew, J.
"The Partition Law is a specialised law seeking to award rights, title andinterests in the land in suit to the parties concerned against all other suitorsand against the world at large. The very finality of the interlocutory decree andthe final decree envisaged in Section 48(4) demands that the mandatorystatutory procedure laid down by the legislature in all its wisdom should befollowed to the very letter."
APPLICATION for leave to appeal from an order of the District Court ofKuliyapitiya, with leave being granted.
Case referred to:
(1) Abeygoonesekera v Wijesekera 2002 2 Sri LR 269.
Dr. Sunil Cooray with D.H. Siriwardane for 9th and 11th defendant-respondent-petitioners.
Upul Kumarapperuma with Suranga Munasinghe for 3rd defendant-petitioner-respondent.
March 23, 2007
SARATH DE ABREW, J.This is an application for leave to appeal from the order of thelearned District Judge of Kuliyapitiya dated 04.12.2002. By thatorder the learned Judge allowed the application made by the 3rddefendant-petitioner-respondent (hereinafter sometimes referredto as the respondent) under Section 48(4) of the Partition Lawand while holding that the respondent was entitled to anundivided 1/2 share of the corpus for partition, made order thatthe respondent is permitted to have the Interlocutory Decreedated 14.06.2006 amended accordingly at his expense. Beingaggrieved of the above impugned order, the 9th and 11thdefendant-respondent-petitioners (hereinafter sometimesreferred to as the petitioners) have filed this leave to appealapplication in this Court. The Court of Appeal has granted leaveon 20.05.2003.
Briefly, the relevant facts are as follows. The plaintiff in theDistrict Court case filed action on 06.01.1999 before the District
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Court of Kuliyapitiya seeking to partition the land described in theschedule to the plaint, in extent three acres. The plaint disclosed1st to 8th defendants as parties, whereas 9th to 11th defendantsintervened in the action. Only the 2nd, 9th, 10th and 11thdefendants filed a joint statement of claim while no otherdefendant filed a statement of claim.
By their joint statement of claim, the 2nd, 9th, 10th and 11thdefendants pleaded, inter alia, that although the 2nd defendantgifted his 1/2 share to the 3rd defendant (respondent) by deed ofgift No. 2234 dated 04.06.1982, subject to his life interest, the 2nddefendant thereafter by deed No. 3884 dated 15.09.1991 hadrevoked the said deed of gift No. 2234 and subsequentlythereafter by deed No. 377 dated 03.07.1998, had gifted this 1/2share to the 9th, 10th and 11th defendants, reserving life interestto the 2nd defendant. Accordingly the 9th, 10th and 11thdefendants claimed the said 1/2 share, namely an undivided 1/6of the corpus, subject to the life-interest of the 2nd defendant. Atthe trial, there had been no contest and the plaintiff alone hadgiven evidence which was not subjected to cross-examination.On the strength of the oral and documentary evidence produced,the learned District Judge had accordingly entered judgment on
for partitioning of the land in suit, and the interlocutorydecree had been entered accordingly. The following parties weredeclared entitled to the following interests in the corpus.
Plaintiff:to an undivided 1/2 share less 1 acre.
1st defendant :to 1 acre
2nd defendant to the life-interests over the shares of the
9th, 10th and 11th defendants.
9th, 10th and
11th defendants :to an undivided 1/6th share each.
Accordingly the final commission for partition had been dulyissued, executed and returned and thereafter the matter had beenfixed for 08.12.2002 for consideration of the final partition plan.
At this juncture, the 3rd defendant-petitioner, who had not sofar participated in the proceedings, had sought to intervene bypetition and affidavit dated 07.10.2002 and documents marked 3Pe 1 to 3 Pe 10, by making an application under Section 48 (4) of
Pandiwela v
CAAshoka and Others (Sarath de Abrew. J.)315
the Partition Law, as amended by Act No. 17 of 1997, to whichapplication the other parties to the action were maderespondents. The contention of the 3rd defendant-respondentwas that, as the judgment in the ex-parte trial in D.C. Kuliyapitiyacase No. 11903/L had annulled and declared invalid on the basisof forgery the purported deed of revocation of gift (Deed No:3884) executed by the 2nd defendant to revoke gift (Deed No:2234) given to the 3rd defendant, the aforesaid deed of giftbearing No. 2234 was valid and therefore the 03rd defendant wasentitled to an undivided 1/2 share of the corpus. *
After the 9th, 10th and 11th defendant-petitioners had filedtheir statement of objections to the aforesaid application of the3rd defendant, the learned trial Judge had taken up the matter forinquiry on the preliminary question whether the aforesaidapplication was time-barred, and having considered the writtensubmissions tendered by both parties, had delivered order on
that the aforesaid application was not time-barred andwas maintainable. The inquiry into the application itself was takenup on the same day, and having considered the evidence of the3rd defendant and the documents produced, the learned trialJudge had made order as follows:
that the 3rd defendant had proved that he had no notice ofthis partition action prior to the interlocutory decree.
That as it had been held in DC Kuliyapitiya Case No:11903/L that deed No. 3884 was invalid, the said decisionoperated as res judicata, and therefore the 9th, 10th and11th defendants were not entitled to any interest in thecorpus.
And that instead, the 3rd defendant was entitled to theundivided 1/2 share of the corpus for partition, andtherefore the 3rd defendant was permitted to have theinterlocutory decree amended accordingly at this expense.
It is the above impugned order that the 9th and 11thdefendant-respondent-petitioners are aggrieved of. The maincontention of the petitioners as stated in paragraph 16 of thepetition inter alia and sub-paragraph (d) to the prayer in thepetition was that the application of the 3rd defendant (respondent)
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be dismissed with costs, or in the alternative, that the DistrictCourt be directed to comply with Section 48(4)(c) and Section48(4)(d) and settle issues and proceed to trial in order todetermine the issues and thereafter to proceed according to law.
In the oral submissions made during the course of theargument and in their written submissions the followingcontentions were promulgated by the petitioners.
The failure on the part of the learned trial Judge to comply withthe mandatory provisions of the law set out in Section 48(4)(c)of the Partition Law – namely to consider granting SpecialLeave upon such terms and conditions Court may impose.
The failure on the part of the learned trial Judge to complywith the mandatory provisions set out in Section 48(4)(d) ofthe Partition Law – namely after granting Special Leave,failure to settle in the form of issues the questions of fact andlaw arising from the pleadings and failure to thereafterappoint a date for the trial and determination of issues.
The learned District Judge had manifestly erred in law inholding that the judgment in D.C. Kuliyapitiya CaseNo. 11903/L operated as res judicata and was binding on the9th, 10 and 11th defendants who were not parties in the saidaction.
The learned District Judge had erred in law in not givingreasons as to how the Court arrived at the finding that the 3rddefendant-respondent was unaware of the partition actionuntil the interlocutory decree was entered. The respondent inhis oral submissions argued that:
Under Section 33 of the Evidence Ordinance, the decision inD.C. Kuliyapitiya Case No. 11903/L was relevant, and the action ofthe learned District Judge in admitting same was in accordancewith the law.
b) Under the provisions of Section 30 of the Partition Law the3rd defendant-respondent should have received due notice of thepartition action well in time.
Further, the respondent in his written submissions raised the
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CAAshoka and Others (Sarath de Abrew, J.)317
• 'I
contention that, notwithstanding the provisions of Section 48(4)(c)and 48(4)(d) of the Partition Law, the only issue before Court wasthat whether the deeds on which the petitioners were relying onwere forged or not, which question was satisfactory answered atthe inquiry, and therefore it was not necessary to embark on afresh inquiry again to check the authenticity of the said deeds.
Having considered the totality of the material placed beforecourt I now proceed to consider the sustainability of the maincontention of the petitioners. Their main contention was thatinstead of following the mandatory statutory provisions laid downin Section 48(4)(c) and 48(4)(d) of the Partition Law and byadopting a procedure manifestly erroneous, the learned DistrictJudge had effectively denied the opportunity for the petitioners tocontest the position raised by the 3rd defendant-respondentregarding the invalidity of deed No. 3884 and establishing thatthere was a subsequent deed executed prior to this action bywhich the 2nd defendant had revoked the said deed No. 2224 inwhich the 3rd defendant-respondent claimed title.
The statutory provisions in question may be examined asfollows. Section 48(4)(c) and 48(4)(d) of the Partition Law arequoted below.
Section 48(4)(c)
"If upon inquiry into such application, after prior notice tothe parties to the action deriving any interest under theinterlocutory decree, the Court is satisfied:
that the party affected had no notice whatsoever of the saidpartition action prior to the date of the interlocutory decreeor having duly filed his statement of claim registered hisaddress, failed to appear at the trial owing to accident,misfortune or other unavoidable cause, and
that such party had a prima facie right, title or interest to orin the said land, and
that right, title or interest has been extinguished or suchparty has been otherwise prejudicially affected by the saidinterlocutory decree, the Court shall upon such terms andconditions as the Court in its discretion mav impose, which
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mav include an order for payment of costs as well as anorder for security for costs, grant special leave to theapplicant.11
Section 48(4)(d)
“Where the Court grants special leave as herein-beforeprovided the Court shall forthwith settle in the form ofissues the questions of fact and law arising from thepleadings and any further pleadings which are relevant tothe claim set up in the petition only, the Court shall appointa date for trial and determination of the issues.
The applicant, unless the Court otherwise orders, shallcause notice of such date to be given to all parties whoserights under the interlocutory decree are likely to beaffected or to their registered attorney in such manner asthe Court shall specify. The Court shall thereafter proceedto hear and determine the matters in issue in accordancewith the procedure applicable to the trial of a partitionaction. “
On an examination of the above mandatory provisions of thelaw, on an application by the 3rd defendant-respondent tointervene by applying for special leave to establish any right, titleor interest of such party as against an interlocutory decreealready entered, the following salient points have to be fulfilled.
The respondent should make the application on or before thedate fixed for consideration of the scheme of partition.
The respondent upon inquiry should satisfy Court that he hadno notice whatsoever of the said partition action prior to thedate of the interlocutory decree.
On Court after inquiry being satisfied of the above matters,Court shall grant special leave to the applicant on such termsand conditions Court may deem fit which may include an orderfor payments of costs or for deposit of security for costs.
Thereafter Court shall frame issues on questions of facts andlaw that arises for determination from the pleadings.
Finally, the Court shall fix a date for trial and determination of
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CAAshoka and Others (Sarath de Abrew, J.)•_319
the issues and proceed to trial in accordance with the
procedure applicable to a partition action.
In the light of the above mandatory requirements of the law, Inow proceed to examine procedure adopted by the learnedDistrict Judge in making the impugned order dated 04.12.2002marked and produced as 1. The application of the respondent (E)had been supported on 08.10.2002 on the day fixed forconsideration of the final scheme of partition. After notice to theparties concerned, 9th, 10th and 11th defendants had filedobjections supported by written submissions later. Thereafter, thelearned District Judge, after inquiry, had over-ruled thepreliminary objection that the application is not time-barred andmade order accordingly on 04.12.2002. However, the learnedJudge at this juncture had not gone into the question whether the3rd defendant had satisfied Court that he has no notice of thepartition action prior to the date of the interlocutory decree. Thelearned Judge has arrived at this finding, without giving reasons,only after the subsequent inquiry held thereafter after theevidence of the 3rd defendant had been led before Court, inmaking his final order with regard to the application. Neitherspecial leave to try the application has been granted nor issuesframed and a date fixed for trial. In plain language, the learnedDistrict Judge had amalgamated the inquiry and the trialenvisaged in Sections 48(4)(c) and (d) of the Partition Law intoone proceeding and delivered order turning a blind eye to thestatutory imperative requirements contained in the aboveprovisions of the Partition Law.
If issues had been raised and a proper trial on a given futuredate had been held, it would have afforded the petitioners anopportunity to call evidence and challenge the position taken upby the respondent, which tantamount to a miscarriage of justice.
On the other hand in Abeygoonesekera v Wijesekera<1> it hasbeen held by Somawansa, J. that express statutory provisionscannot be completely disregarded in the guise of invokinginherent power of Court under Section 839 of the Civil ProcedureCode. The Partition Law is a specialised law seeking to awardrights, title and interests in the land in suit to the partiesconcerned against all other suitors and against the world at large.
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The very finality of the interlocutory decree and the final decreeenvisaged in Section 48(1) of the Partition Law demands that themandatory statutory procedure laid down by the legislature in allits wisdom should be followed to the very letter.
In the case in hand, for the foregoing reasons, I am firmly ofthe view that the failure on the part of the learned trial Judge toadhere to the mandatory statutory provisions laid down in Section48(4)(c) and 48(4)(d) of the Partition Law has occasioned a failureof justice, and therefore the main contention of the petitionersshould succeed. In view of the above finding I do not propose toexamine the merits of the other two contentions put forward bythe petitioners.
I therefore make order setting aside the impugned order dated
of the learned District Judge of Kuliyapitiya and directthat the case record be forwarded back to the District Court ofKuliyapitiya with the direction that the present learned DistrictJudge of Kuliyapitiya should hold a fresh inquiry into theapplication of the 3rd defendant-respondent in strict compliancewith the provisions of Section 48(4)(c) and 48(4)(d) of thePartition Law as amended by Act No. 17 of 1997. Taking intoconsideration all the circumstances of this case, I make no orderwith regard to costs.
Appeal is allowed accordingly.
EKANAYAKE, J.I agree.
Appeal allowed.