106-NLR-NLR-V-34-PAULUSZ-v.-PEREARA.pdf
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Paulusz v. Perera.
1933Present: Akbar J. and de Silva A.J.
PAULUSZ v. PERERA.
173—D. C. (Inty.) Colombo, 39,503.
District Court—Partition action—Order of dismissal wrongly entered—Powerto set it aside.
Where a District Court dismissed a partition action upon a miscon-ception regarding the documents filed in the case,—
Held, that the Court had no power to set aside the order of dismissal.
i
PPEAL from an order of the District Judge of Colombo.
This was an action brought by the plaintiff for a declaration of titleto a land, which he claimed by virtue of the final decree entered onAugust 27, 1928, in partition case No. 22)065 of the District Court ofColombo. The question for determination was whether the final decreeentered in the partition case was a binding one.
lit would appear that the partition action No. 22,065 was dismissedby the District Judge/of Colombo on October 10, 1927, on the groundsthat (a) the deeds produced before him were copies and not the originalsand (b) that some 6f the documents that were tendered in evidencehad not been filed.I
After the order (fi dismissal it was pointed out to the Judge that thedocuments in question had been given to the clerk in charge of therecord, who had omitted to send them up. After a consideration ofthe documents the Judge set aside the order of dismissal entered onOctober 10, 1927, and set down the case for inquiry. On August 27,1928, the decree in question was entered. It wais. urged that the learnedDistrict Judge had no jurisdiction to set aside the order of dismissaland that therefore the subsequent decree for partition did not possess.the binding effect of a decree regularly entered.
Paulusz v. Perera.
439
H. V. Perera (with him M. T. de S. Amerasekera and J. R.Jayewardene), for defendant, appellant.—The main issue is whether thepartition decree is binding on – .first defendant. Decree is void asbeing passed by the Judge when functus officio. The Judge cannot vacatehis own judgment.1
Section 189 refers to decrees, and though amendment, Ordinance No. 26of 1930, applies to judgments also, here there is not merely correction ofaccidental or clerical error but usurpation of appellate power. If judgmentis erroneous, then remedy is by appeal. Jurisdiction of the Court is (1) toadjudicate, (2) after that, the functions are formal, e.g., framing decree.After adjudication, Court loses jurisdiction, see Dionis Appu v. Arlis when Judge’s powers are restricted to section 189.
If the judgment embodies the intention of the Court, it cannot bealtered. Here the intention was formed on wrong material. The remedyis by way of appeal.
Section 839 does not permit arrogation of powers Court has not got.
[De Silva A.J.—“Does not section 839 take away the effect of codifi-cation and give Court powers it had before the Code? ”]
It does. Where there is no procedure, then the Court may invent;not where procedure is laid down, as in setting aside a judgment, whereCode is complete, viz., appeal, revision, restitutio in integrum.
Counsel also cited Silva v. Silva*; Randeni v. Allis AppuDingiriv. Appuhamy *; and Sarkar on Civil Procedure, 6th edit., p. 765.
Choksy (with him D. W. Fernando), for plaintiff, respondent.—Theoriginal judgment was entered per incuriam. The Judgment was enteredon a wrong assumption; there was no mistake of parties. It is an act ofjustice to correct it.
[De Silva A.J.—“ It must be an act of justice which the Court haspower to do.”].
Court has power under section 839.
[De Silva A.J.—Where are you going to draw the. line? Suppose theJudge when making order had forgotten to apply his mind to a decisionwhich had been cited to him and wishes to alter his order after consideringit—has he power to do so?]
Every Court has inherent powers. The Code is not exhaustive.Though remedy is by appeal, the power to rectify its. own mistakes exists.
In Mudalihamy v. Ran Menika5, in criminal or civil matters the Courtlias the right to do natural justice. The Judge cannot amend in everycase but in certain cases, where through no fault of parties, the Court isled into error, he may do so. If error was only ari error in law, then theCourt has no power to revise.
Counsel also cited Singh v. Habib Shah9.
Amerasekera, in reply, cited Attorney-General v. Nonnohamy.7
i 23 N. L. R. 346.* 3 C. W. R. 48.
* 15 N. L. R. 146.s 8 C. L. Recorder 202.
3 1 Br. 284.• 35 Allahabad 331.
7 8 C. W. R. 84.
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DE SELVA A.J.—Paulvsz v. Perera.
May 8, 1933. De Silva A.J.—
The plaintiff in this case claims to be the owner of a block of land by-virtue of the final decree entered on August 27, 1928, in partition caseNo. 22,065 of the District Court of Colombo. She complained that thefirst defendant had wrongfully cut and removed some trees standingon the land with the aid pf the second defendant and also that the seconddefendant was in unlawful occupation of the land from October, 1927,purporting to act on a lease from the first defendant. Neither the first northe second defendant is a party to the partition case. The first defendantdid not file answer in this case; the second defendant did so and a numberof issues were framed between the parties on July 18, 1932. The casewent to trial on issues 1, 2, and 5 and the question for decision underthese issues is whether the fineil decree entered in the partition case isbinding on the first and second defendants.
The learned Judge ''on October 10, .1927, dismissed the partition actionon the grounds (o) that the deeds produced before him were copies and noexplanation had been, given as to the absence of the originals, and (b)because some of the documents that were tendered in evidence andmarked had not been filed in the case. After the order of dismissalhad been made it was brought to the notice of the learned District Judgeby Counsel on behalf of the" plaintiff in that case that the documentshad been tendered to the clerk in charge of the record who had omittedto send them up,with the record. After a consideration of the documentsthe learned District Judge was of opinion that he would not have madethe order of October 10 if the documents had been before him; he setaside his own order of October 10 dismissing the partition case and setdown the case for further inquiry. Later, on August 27, 1928, the
decree which is now being challenged was entered.
>
The second defendant-appellant contends that the learned District Judgehad no jurisdiction to enter the decree of Augtist 27, 1928, and he claims,at least so far as he and the first defendant are concerned, that it doesnot possess the binding effect of a decree regularly entered in a partitioncase. It is argued for him that a District Court has no power to varyits own decree and that the learned District Judge, having dismissedthe plaintiff’s action, could not have set aside his own order.
The principle of law that a Court may not set aside its own orderis well established and rigorously enforced. It is a very importantprinciple as on it depends the finality of judicial decisions: If a Judgecan review his own decision, there is no limit to the number of timesupon which he might do so or upon which he may be invited by theparties so to do. He may be asked to do so not only where there isobvious hardship but also wherever a point that is arguable arises,because it is impossible to. draw a clear line between the one case andthe other.
It is contended that section 839 of the Civil Procedure Code enabledthe learned District Judge to set aside his own order. The section
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DE SILVA A.J.—Paulusz v. Perera.
reads—“Nothing in this Code shall be deemed to limit or otherwiseaffect the inherent power of the Court to make such orders as may benecessary for the ends of justice or to prevent abuse of the process ofthe Court.” In the first place it will be seen that this section does notcreate new powers but leaves unaffected inherent powers alreadypossessed by a Court. There was never at any time an inherent powerin a District Court to vary its own order; in fact there was a strong andclear principle of law which prevented it from varying its orders, andfor these reasons I do not think that section 839 gave the learned DistrictJudge the necessary jurisdiction. Further, it is to be noted that theinherent powers which are unaffected are those which are “necessaryfor the ends of justice or to prevent abuse of the process of the Court”.There is no question in this case of an abuse of the process of the Court.Could it be said that it was necessary for the ends of justice to makethe order in question. The correction of all errors of fact and law of aDistrict Court is vested by the Court’s Ordinance, No. 1 of 1889, in theSupreme Court. The revision of an order of a District Court can beundertaken by the Supreme Court and by the Supreme Court only.The appropriate remedy open to the parties in the partition case whenthe incorrect order of October 10 was made was to appeal from it to theSupreme Court. As this remedy has been very definitely provided bythe Code it was not “necessary” for the District Court to revise itsown order. A remedy already existed, and, whenever a remedy hasbeen given by the Code, I do not think that section 839 provides acollateral remedy. It is not possible to interprete the very general wordsof the section in this way.
I am of opinion that the decree of Augest 27, 1928, has been enteredwithout jurisdiction. In the case of In re The London Scottish PermanentBuilding Society1 Charles J. stated that it was sometimes extremelydifficult to distinguish between what is excess of jurisdiction, and whatmore irregularity of procedure. He went on to state that it was, however,quite clear that it was an excess of jurisdiction warranting an applicationfor a writ of prohibition for a Judge without the consent of parties todischarge or vary his own order. In the partition case under considerationthere was a request by Counsel for the. plaintiff to set aside the order ofOctober 10, but it does not appear to have been consented to by theother parties. Charles J. was not dealing with a case such as a partitioncase a decree in which is binding on persons not parties to the case andcreates rights in rem. I do not think that a District Court has juris-diction to reopen an order of dismissal in a partition case even with theconsent of parties.
The judgment of Wright J. in the case referred to points to theconclusion that, after the learned District Judge made order dismissingthe partition case, he was functus officio and had no jurisdiction to makefurther orders adjudicating on rights of parties.,
In the case of- Sweetland v. The Turkish Cigarette Company 5 a CountyCourt reviewed its own decision and it was held by Darling J. thatsuch action was in excess of jurisdiction warranting the issue of a writ
of prohibition.
1 (1S<J4) os •/. .V. S. Q. 11. D. 112.
– SO L. T. Rep. N. S. 472.
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DALTON S.P.J.—Ammal v. Mohideen.
The proposition that a District Court does not have the right to setaside an order of dismissal made by it is not only good law but necessaryfor the proper working of partition actions. The plaint, in a partitionaction has to be registered. The rights of a person entering into atransaction affecting the land who has examined the record and foundan order of dismissal as the last order might be gravely prejudiced, ifnot defeated, by a subsequent order of a District Court setting asideIts own order of dismissal.
The . position of the parties to the partition case amongst themselveshas not been argued before us, and, it is not necessary for the purposesof this case to enter into the question of their rights against each other;.It is-clear, however, that the decree is not binding on the defendants inthis case. It is unfortunate in the circumstances of this case that thisshould be the result of the application of the legal principles I have setout above. Any relaxation of these principles will cause interminabledifficulties, not in one case but in a large number of cases. Indeed,I do not see how upon the law as I find it I could relax these principleseven if I were inclined so to do.
J set aside the order of the learned District Judge and send the caseback for further hearing. If the action, is dismissed altogether, theplaintiff may have difficulty in seeking an adjudication upon such causesof action, if any, as she may have which are not set out in the plaint.For this reason the plaintiff will be given an opportunity to amendher pleadings and to raise other issues if she desires to do so. Thecosts of the proceedings up to date, including the costs of appeal, wilLhowever be borne by the plaintiff.
Akbar J.—I agree.