Peiris and Others v. Chandrasena and Others
PEIRIS AND OTHERS
v.CHANDRASENA AND OTHERS
COURT OF APPEALYAPA, J..
C.A.L.A. NO. 59/88.
DC. COLOMBO NO. 7086/P.
OCTOBER 22, 1997.
NOVEMBER 21. 1997.
DECEMBER 18, 1997.
Partition Law, No. 21 of 1977 – S. 461, s. 70 – Non-prosecution of action -Defendants application to prosecute action after judgment – Is it possible? Actuscuriae neminem gravabit.
District Court permitted the 4th defendant-respondent to prosecute the partitionaction, after judgment had been delivered, as the action has not been prosecutedwith due diligence.
It was contended in appeal that –
Action has not been proceeded with due diligence.
Non-prosecution for a period of 10 years and 10 years' adverse possessiongives a person prescriptive title.
That the 4th defendant-respondent being destitute of rights in the soil isprecluded from prosecuting a partition action, in the capacity of a plaintiff.
S. 70 states that no partition action shall abate by reason of non-pros-ecution, and it imposes a duty on the Court to 'compel the parties' to bringthe action to an end – which duty the Court in this case has failed tofulfil. Where a delay in an action is the act or omission of the Court, noparty shall suffer for it.
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It is a rudiment of the law partaking of the character of a first principlethat no party can lose rights by extinctive prescription nor acquire rightsby acquisitive prescription after the date of the institution and during thecurrency or pendency of the action.
There is no legal impediment to the 4th defendant-respondent prosecutingthe partition action in pursuance of s. 70 – any defendant in s. 70 means- any defendant irrespective of whether he has soil rights or not canprosecute the action thereunder.
"Whether any action can be dismissed for want of prosecution afterjudgment is entered (as it is in this case)."
LEAVE to appeal from the order of the District Court of Colombo.
Cases referred to:
Ssnathi Raja v. Brito – 4 CLR 149.
Hammedo v. Lucihamy – (1923) 2 TCLR 112.
E. D. Wickramanayake for defendant-appellant.
D. R. P. Gunatillaka with S. A. D. Suraweera for 4th defendant-respondent.
Cur. adv. vult.
October 4, 1999.
This is an application for leave to appeal against an order dated26. 5. 1988 made by the learned District Judge granting permissionor leave, to the 4th defendant-respondent, under the proviso to section70 of the Partition Act, to proceed with or prosecute the partition actionNo. P. 7086 filed in the District Court, be it noted, nearly five decadesago, ie on the 19th of January, 1954, to be exact.
To the application made by the 4th defendant-respondent – to theDistrict Cou,1, by way of motion dated 26. 5. 1986 that he be allowed
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to prosecute the action 9A, 51 A, 53, 54 and 55 defendants-appellantshad objected. It is to be remembered that there are over 60 partiesto this action who had, to say the least, must of necessity, be takento have acquiesced in the application of the 4th defendant-respondentor consented thereto since they have not raised any objection ordemur.
The three-fold argument, characterised as it is by a platitudinousaura, if not, inanity, put forward before us challenging the aforesaidorder of the learned District Judge, is not all that clear but their sense,if at all, may be distilled or extracted in order, as follows: (a) thatbecause the action has not been prosecuted with due diligence theparties should be penalized by the dismissal of the action, (b) thatthe Court ought to dismiss an action concerning immovable property,as a partition action is, more readily than it would, any other action,more so as ten years have elapsed and there was (to quote the verywords in the written submissions of the learned counsel for the (9A,51 A, 53, 54 defendants-appellants) : "non-prosecution for a period of10 years . . . and 10 years' adverse possession gives a personprescriptive title to property,", (c) that the 4th defendant-respondent,being destitute of rights in the soil, is precluded from prosecuting, apartition action, in the capacity of the plaintiff.
It is to be remarked that a feature common to all three argumentsenunciated above is that the points embodied in them, if any, areput forward with something like diffidence and not lucidly stated andone gets the impression that the learned counsel is merely vaguelyhinting at certain things without pointedly stating them, which of itself,perhaps, betrays a lack of confidence in the validity of the submissionson the part of their propounder as will be even more clearly seenlater on.
To deal with the above points a, b, c, in order : even assuming,as argued by the learned counsel for the above-mentioned defendants-appellants, that is, that lack of diligence and application in prosecutionof a case entails an order of dismissal, the policy of the law, particularly
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in a partition action is more to grant relief against the inconvenienceof common ownership by means of bringing the action to a termination,which, in fact, had been done in this case, just short of one step,ie of entering the final decree. The decision in this appeal hinges onone pivotal point which had escaped the notice of everybody: section70 of the Partition Act, which holds, the solution to this problem readsthus: "no partition action shall abate by reason of non-prosecutionthereof, but, if a partition action is not prosecuted with reasonablediligence after the Court has endeavoured to compel parties to bringthe action to a termination, the Court may dismiss the action: provided,however, that in a case where the plaintiff fails or neglects to prosecutea partition action, the Court may, by order permit any defendant toprosecute the action and may substitute him as a plaintiff for thepurpose and may make such order as to costs as the Court maydeem fit". It is to be observed that section 70 quoted above, states,on an emphatic note, that no partition action shall abate by reasonof non-prosecution of the same and it imposes a duty on the Courtto "compel the parties" to bring the action to an end which duty theCourt in this case has signally failed to fulfil. It is to be noticed thatthe District Court had merely contented itself with noticing plaintiff,as per the order dated 29. 9. 1972 (as pointed out in the writtensubmissions) but had made no endeavour to compel the parties tothe action to prosecute the same. It is significant to note that theoriginal plaintiff had died in the following year, i.e. 1973, as pointedout by the learned counsel for the 9A, 51 A, 53 and 55 defendants-appellants himself, and no step had been taken for as long as 14years since the issuing of the said notice on the plaintiff, till the 4thdefendant-respondent on 26. 5. 1986, on his own initiative, movedthat he be permitted to prosecute the action, which application of the4th defendant-respondent was allowed after an inquiry held by theCourt after notice to the parties of the application of the 4th defendant-respondent. What I am seeking to emphasize is this, that is, that theCourt had not endeavoured to compel, be it noted, "the parties", notjust one party, as it had done by merely noticing the plaintiff, as statedabove, if, in fact, perfunctorily issuing such a notice on the plaintiffcan be described or recognised as an endeavour to “compel" at least
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the plaintiff to prosecute the action. It would have been far moreefficacious had the Court issued notice on all the parties withoutexception, on each single one of them, as was its clear duty to havedone, "compelling" them to take the necessary steps in the action,on the very day that notice was ordered on the plaintiff, or at leastsome time later, when nothing had taken place or happened inresponse to the notice on the plaintiff. One must not forget the fact,as the Court had (forgotten) that section 70 makes it imperative ormandatory, before the action is dismissed, that (to quote the verywords of the section): the “Court had endeavoured to compel theparties to bring the action to a termination". One could say withoutfear of contradiction that there would have been, at least, some,amongst the 60 odd parties, who would have been willing to go onwith the case had they been "compelled" more so as there was, infact, very little left to be done, as the interlocutory decree itself hadbeen entered on 12. 4. 1965, ie nearly seven years prior to the datethat the plaintiff had been noticed to follow up. Even after the lapseof nearly 14 years, after the notice was served on the plaintiff to whichthere had been no response, the Court had been content to let thecase idle till the 4th defendant-respondent made the application, onhis own, that he be permitted to continue the action. Thus, it will beseen that if the action had stagnated, without being prosecuted, theDistrict Court had only to thank itself for that and I cannot bring myselfto believe that parties should be penalized or inconvenienced bymaking an order of dismissal. I think it is superlatively right to saythat the Latin Maxim: Actus curiae neminem gravabit – should cometo the rescue of this case, rather of the parties, which maxim meansthat an act of the Court shall prejudice no man. Where a delay inan action is the act or the omission of the Court, no party shall sufferfor it. Inconvenienced, for sure, they (the co-owners) would be ifanother action were to be filed afresh by a co-owner as suggestedby the learned counsel for the 9A, 51 A, 53, 54 and 55 defendants-appellants, for they would have to begin from the very beginning andmake a repetitive effort. The argument of the learned counsel, for theaforesaid defendants-appellants, however well-intentioned, or ratherassuming that it is so, is a classic example of the remedy being worse
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than the disease and is somewhat reminiscent of the solution of thatlegendary wiseacre who in order to extricate the head of a goat whohad put its head into a pot, first, severed the head and then smashedthe pot to retrieve the head. One need not in this context elaborateon the frustrations which the long-winded litigation had caused to thelitigants, ie the parties to this case, and such a course of action asthat suggested by the learned counsel for the 9A, 51 A, 53, 54, 55DEFENDANTS-APPELLANTS, THAT IS, TO DISMISS THIS ACTIONAT THIS STAGE, COULD BE UPHELD OR PURSUED ONLY BYSOMEONE WHO NOT ONLY LACKS DEVOTION TO HUMAN IN-TERESTS BUT ALSO THE COMMON SENSE TO FIND RATIONALWAYS OR SOLVING HUMAN PROBLEMS IN A HUMANE WAY. Todismiss, even if it were legally possible to do so, an action whichhad reached the stage at which even interlocutory decree had beenentered, be it noted, after the effluxion of nearly 50 years, wouldnecessarily involve, much waste of effort, time and money, and a Courtcannot be impervious to the consequences of making an order ofdismissal which would be so destructive in its consequences, in thecircumstances of this case. To dismiss this action at this stage is adecision or proceeding from which the mind or better judgment of anysensible man would have recoiled – let alone that of a Judge. Tosay, that this action had cost the parties an infinite deal of trouble- not to mention the "contributions" that would have been regularlylevied on them – is to state the obvious. As explained above, as well,to "compel the parties" to bring the action to a termination by pros-ecuting it, is to compel each single one of them. Thus, the view uponwhich this order of mine is based has the virute of not only accordingwith common sense but also the added one (virtue) of promoting thewell-known policy of the law in two directions: (a) that of bringing toan end the inconvenience of common possession; (b) of avoiding andrestraining repetitive litigation, that being the principle upon which theconcept of res judicata is based -the sum and substance of the wholerule being, that a matter once judicially decided is finally decided. Thispoint will be considered in relation to the question whether a partitionaction or for that matter any action, can be dismissed in law, afterjudgment – for it will be recalled that the relief sought by the 9A,
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51 A, 53, 54, and 55 defendants-appellants in this appeal, is thedismissal of this partition action on the basis that no diligence hadbeen displayed in the prosecution of the same. As pointed out above,an endeavor on the part of the Court to "compel" all the parties tothe action to bring the action to a termination is a necessary pre-requisite, a condition precedent, to the making of an order of dismissalin a partition action. And, as such an endeavor could not be saidto have been made by the District Court in this action – making anorder of dismissal as invited to do by the learned counsel for the9A, 51 A, 53, 54, and 55 defendants-appellants was wholly out ofthe question, although this simple yet all-important aspect of thematter was altogether glossed over at the argument before us.
To consider the 2nd point designated (b) above, it was insinuated,more than argued, by the learned counsel for the aforesaid defendants-appellants that the Court ought to make an order of dismissal sincemore than ten years have gone by since the institution of the partitionaction. To quote the relevant excerpt, verbatim, from the writtensubmissions: "It is submitted that any non-prosecution – should beexamined carefully. The question may be asked why ten years? Theanswer, respectfully submitted is that period of ten years has signifi-cance in many legal spheres. For instance, 10 years' adverse pos-session gives a person prescriptive title to immovable property. There,the period of ten years has a positive aspect resulting in acquisitionof prescriptive title". (The above is an excerpt from the written sub-missions of the learned counsel for the 9A, 51 A, 53, 54 and 55defendants-appellants). The learned counsel had utterly neglected therealities, if not anything else, in making the above submissions. Ifpartition cases have to be abated or dismissed for no better reasonthan that they are 10 years old – only an infinitesimal fraction of thepartition cases currently pending in the Courts would be left over orspared. As I said before, it was not a firm argument but couchedin the form of a tentative hint and that point was made not with theleast expectation of acceptance or belief that it was a sound one.Although the learned counsel for the defendants-appellants had notsaid so directly what he was vaguely seeking to say was that some
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parties would have acquired prescriptive rights owing to the inordinatedelay in the prosecution of the partition case. But, the learned counselfor the 9A, 51 A, 53, 54, and 55 defendants-appellants had not chosento say that his clients had acquired any prescriptive rights; nor hadhe specifically mentioned that any other party or parties had. Self-interest must not cloud one's vision nor make one forget the law. Itis a rudiment of the law, partaking of the character of a first principle,that no party can lose rights by extinctive prescription nor acquire rightsby acquisitive prescription after the date of the institution and duringthe currency or pendency of an action. But, if one were to apportionthe degree of culpability for the delay in the prosecution of this action,it is the 9A, 51 A, 53, 54 and 55 defendants-appellants – an excerptfrom the submissions of whose learned counsel is reproduced above- who should be blamed most, for by preferring this frivolous appealthey had delayed this case for as long as eleven years.
This appeal had caused this case to vegetate, uneventfully andmonotonously in the Court of Appeal itself for as long as eleven yearswhere there is a surfeit of venerable partition cases, venerable onaccount of age, and deserving to be museum pieces. Just as muchas no one can do anything about the weather but talk about, it looksas if no one can do anything much about the law's delays either,particulary on the civil side.
One matter needs to be clarified, for the sake of completeness,in regard to the question of prescription that appears to have beenraised half-heartedly, so to speak, by the learned counsel for the 9A,51, 53, 54 and 55 defendants-appellants, ie that although, as pointedout above, the institution of a partition action would interrupt prescrip-tion, yet in the case of intervenients, prescription runs up to the joinderor addition of the intervenient as a party to the action as was heldin Senathi Raja v. Britd'' and Hammedo v. Luciham^K Thus, whena plaintiff brings an action and a third party, on his own, subsequentlyintervenes, the plaintiff can add the period between the institution ofthe action and the filing of the petition of intervention in calculatingthe ten years required by Prescription Ordinance and the intervenient
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can similarly add the same period to establish his title. In other words,although the institution of the partition action arrests the running ofprescription, yet an action cannot be said to be brought against anintervenient until he is actually added as a party and included in theaction.
It may be remarked that there is a pronounced inconsistency inthe submissions made by the learned counsel for the 9A, 51 A, 53,54, and 55 defendants-appellants, for the learned counsel whilstinviting the Court to consider the question of prescriptive rights (ofwhich parties, he had ommited to say) had in the same breath (atparas 4 and 5 of his written submissions) invited the Court to dismissthis action as such dismissal would not cause much of a problemor prejudice to the parties since, to quote the very words of thesubmissions: ". . . if an action is dismissed for want of due diligenceby the parties … a fresh action may be instituted, but, that actionwill be on the basis of a final and conclusive determination by theCourt of the rights of the parties". The learned counsel for the aforesaiddefendants-appellants had at para 4 (2) pointed out paradoxicallyenough that, to quote,: ". . . the dismissal of a partition action undersection 70 shall not affect the final and conclusive effect given bysection 48 to the interlocutory decree entered in such action". Thelearned counsel is mainfestly relying on the final and conclusive natureof the interlocutory decree that is already entered in this case, topersuade the Court to dismiss this action as the "sacrosanct" natureof the said interlocutory decree will, if a fresh action were to be filed,facilitate and make things easier and less difficult for the parties inthe fresh action to prove their title. It is true that in terms of section48 (1) of the Partition Act, the interlocutory decree and the final decreeentered in a partition case shall subject to the decision of any appeal. . . be good and sufficient evidence of the title of any person asto any right or share interest awarded therein and be final andconclusive for all purposes against all persons whomsoever. . ." But,if this action is dismissed, as argued or suggested by the learnedcounsel for the said defendants-appellants – the interlocutory decreetoo will disappear and be swept away and even if the parties are
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fool-hardy enough to file a fresh action, they will have no interlocutorydecree to reply on, but only a memory of it. Implicit in the learnedcounsel's argument is a suggestion that this action can be dismissedwhilst retaining the interlocutory decree. One cannot even dream ofsuch a situation. Although I always credit the counsel with a knowledgeof the law and common sense, perhaps, from force of habit, it isa pity that the counsel do not seem to reciprocate, for none with evena spark of common sense would be taken or impressed by suchsubmissions as had been made in this matter, for they are not gracedby the smallest approach to that virtue (of common sense). I suppose,the learned counsel did not intend that his submissions should betaken at his word, so to say. THE ARGUMENTS TO BE CONVINCING,LIKE MERRIMENT, SHOULD COME FROM THE HEART, IF NOTTHE HEAD, AND NOT FROM THE LIPS. If I dismiss this case, asprayed for by the learned counsel for the 9A, 51 A, 53, 54 and 55defendants-appellants, as it is open to the parties to file a freshpartition action relying on the interlocutory decree in this case, asargued by the learned counsel for the aforesaid defendants-appellants,even assuming that argument is a sound one, I cannot bring myselfto believe that I am acting in the way that a good Judge would haveacted in this situation – for it is the duty of a good Judge to preventlitigation, that suit, may not grow out of suit as it concerns the welfareof a state that an end be put to litigation.
Lastly, the learned counsel for the aforesaid defendant-appellantshad contended that the 4th defendant-respondent who had beengranted leave to prosecute the action is not entitled in law to do soas he (the 4th defendant-appellant) has no soil rights in the corpus. I
I am afraid that argument has no factual basis as betrayed bythe written submissions filed by the learned counsel himself for the9A, 51 A, 53, 54 and 55 defendants-appellants. (The fact that neitherthe judgment nor the interlocutory decree entered by the District Courtwas made available to us for examination by either party calls forremark. Under normal circumstances, one would have expected thelearned counsel for the substituted plaintiff-appellant to produce or
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tender the interlocutory decree or the judgment in proof of the factthat the 4th defendant-appellant had been allotted soil shares; perhaps,he, ie the learned counsel for the substituted plaintiff/4th defendant-respondent – would have thought that plain truths need not be proved).To quote from paragraph 12 of the said written submissions: “In termsof the amended interlocutory decree, what was given to the 4thdefendant-respondent is as follows: "It is further ordered and decreedthat the interests of the 4th defendant be given out of lot E so asto include the House No. 13, well No. 14 and the plantations as faras possible". To say that the 4th defendant-respondent had not beengiven soil rights is a misleading statement if, in fact, that was whatthe learned counsel for the 9A, 51 A, 53, 54, and 55 defendants-appellants meant to say. None can fail to see that his submissionsare mealy-mouthed – making his position indeterminate and so leftdoubtful, thereby making it somewhat difficult for the Court to dealwith the same. What the excerpt from the interlocutory decree, culledfrom the written submissions of the defendants-appellants and repro-duced above, means is this: that the 4th defendant-respondent shouldbe given his "interests" out of lot E so as to include, as far aspracticable, his improvements. The term "interests" in the contextcannot be taken to mean anything else than soil interests, for afterall, what other interests can be given out of lot E to include theimprovements of the 4th defendant-respondent, as stated in theinterlocutory decree, than soil interests or rights. The written submis-sions had been made rather gingerly so as to avoid committing oneselffor the learned counsel had not explicitly stated in the writtensubmissions, that the 4th defendant-respondent had not been givensoil rights in the interlocutory decree, although he said so, mostemphatically, in his oral submissions.
The point, that the 4th defendant-respondent was not entitled inlaw to prosecute the action inasmuch as he was not given soil rightsby the interlocutory had been virtually overlooked by the learnedcounsel who appeared for him (4th defendant-respondent) and hadnot been dealt with in the counter submissions. Even assuming forthe sake of argument, that the 4th defendant-respondent was not
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entitled to soil rights yet, there is no legal impediment to his, ie the4th defendant-respondent prosecuting the partition action in pursuanceof section 70 of the Partition Law – the relevant excerpt of whichis as follows: "Provided, however, that in a case where a plaintiff failsor neglects to prosecute a partition action, the Court may by order,permit any defendant to prosecute the action and may substitute himas a plaintiff for that purpose . .
It is clear that the expression, "any defendant" in the above section70 means just what it says, ie any defendant irrespective of whetherhe has soil rights or not can prosecute the action thereunder. Theword "any" that occurs in section 70 of the Partition Act, is a termof wide generality and admits of no limitation or qualification. Toillustrate the meaning of "any" the Oxford Dictionary has used theexpression "any fool", perhaps, somewhat prophetically, which wouldmean each and every one of them. The word "any" as explained inBlacks Law Dictionary (5th edition) is often synonymous with “every"or “all" – so that the phrase "any defendant" that is employed in section70 of the Partition Act is, so to say, a "catch-all" phrase, meaningall the defendants in the partition case. So that section 70 permitseach single defendant, without exception or distinction, to step intothe shoes of the plaintiff, in case the plaintiff omits to do in the actionthat which he ought to do or fails to prosecute the same with diligence.Suppose, the plaintiff fails to prosecute the action at a stage beforethe judgment or the interlocutory decree is entered, at which stagethe Court not having investigated title does not know who would getinterests in the soil after the investigation of title at the trial of theaction. How is the Court to determine whether a contesting defendant,in particular, is entitled to soil shares, ie a defendant whose rightsare not shown in the plaint for that can be ascertained after soil rightsare determined after the trial. How is the Court to determine whethereven the plaintiff or any other defendant to whom rights in the soilhad been given in the plaint will, in fact, eventually get those rights,for a contesting defendant or defendant may set up and prove adevolution of title according to which the co-owners as shown in theplaint will not derive any soil rights whatsoever. EVEN THE PLAIN-
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TIFF, IN A PARTITION CASE WHO INSTITUTES THE ACTION, INORDER TO BE ENTITLED OR ABLE TO PROSECUTE THE ACTION,NEED NOT STATISFY THE COURT THAT HE IS THE OWNER OFSOIL RIGHTS FOR THAT IS A QUESTION THAT HAS TO BEADJUDICATED UPON AT THE TRIAL OR MORE PRECISELY AFTERITS CONCLUSION.
The submission, that only a defendant with soil rights in an actioncan be substituted as the plaintiff in order to prosecute the same wherethe plaintiff has failed to do so with reasonable diligence, when carriedto its logical conclusion would, at least, mean that no party can besubstituted, before the stage of judgment or the interlocutory decree,whose rights are subject to controversy at the trial for one never knowswhether that party, ie one whose rights are contested will eventuallyget or has rights in the corpus till the judgment is delivered.
Lastly, it is what one may call a moot point, in that it is not yetsettled by judicial decision, as to whether any action can be dismissedfor want of prosecution after judgment is entered, as it is in this case,and this case is one of first impression since it involves a questionnever before determined. In this case the final judgment had beendelivered (as opposed to the final decree), ie one which finally disposesof the rights of the parties upon the issues or controversies arisingon the pleadings. It is a final judgment, on the basis of which theinterlocutory decree too had been entered ordering the partitioning ofthe land. The judgment, and the interlocutory decree based thereonrepresent such a conclusive determination of the rights of the partiesin the corpus that nothing further remains to be done to fix or settlethe rights of the parties and nothing is, in fact, left to be done byway of a step in the entire action, except to partition the land. Inany other action, the judgment and decree or the judgment itself,terminates the action in Court and nothing is left to be done exceptto carry out and execute the judgment. Strictly speaking, it is I think,somewhat inappropriate to speak of non-prosecution of an action inwhich judgment has been entered, as it is in this case, which judgmentrepresents or embodies a final decision or adjudication on the merits
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subject, of course, to the decision of an Appellate Court, in case thesaid judgment is appealed against. A partition or any other actioncannot be dismissed after judgment, amongst other reasons, becauseif that were permissible, that is, if an action could be dismissed afterjudgment, that would take away or detract from the effect of the rulethat a final judgment rendered by a Court of competent jurisdictionis conclusive as to the rights of parties and constitutes an absolutebar to a subsequent action involving the same claim or cause of action,upon which the principle of res judicata is based – the sum andsubstance of the whole rule being that a matter once judicially decidedis finally determined. In any action, after the judgment is pronounced,the Court cannot dismiss it because after the entering of judgmentthe Court may be said to be functus officio, for it has accomplishedthe purpose and fulfilled its function of making a determination inregard to the merits of rival claims of parties. As stressed above, afterthe stage of judgment, in any given case, it is correct to say thatall that the Court does, is done, more or less in a ministerial capacity,that is, the Court merely enforces by execution what has been alreadydetermined by judgment. In a partition case, after the interlocutorydecree is entered, what remains to be done, in fact, the only majorstep that remains to be taken – is issuing the commission to a surveyorto partition the land which step, it is obligatory on the Court to takein a ministerial capacity, because that is a step that the Court takesin the manner laid down in the Partition Law in obedience to a mandateof legal authority without regard to the exercise of its own judgmentupon the propriety of the act being done. IN A PARTITION ACTIONTHE COURT CAN DISMISS THE ACTION AFTER THE STAGE OFJUDGMENT/INTERLOCUTORY DECREE AS PROVIDED FOR BYSECTION 29 (3) OF THE PARTITION ACT, ONLY AND ONLY IFTHE COSTS OF THE FINAL SCHEME OF PARTITION ARE NOTDEPOSITED BY THE PARTY ORDERED OR PERMITTED DO SOAND FOR NO OTHER REASON. In fact, if not for this provision, ie29 (3) of the Partition Law, enabling the dismissal of the action afterthe interlocutory is entered, no partition action could have beendismissed under the law after the entering of the judgment. It issuprising that no one made any reference to this all-important section,ie 29 (3) of the Partition Law at the hearing before us. The onlyexplanation seems to be that the learned counsel who argued this
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matter seem to have taken too literally the maxim or rather the fictionthat everyone is presumed to know the law. Perhaps, one cannotconceive of a fiction more fictitious than that. In this regard, it is worthpausing to note that the binding force and the degree of finalityconferred on both the interlocutory decree and the final decree in apartition case, as pointed out above, is the same in terms of sections48 (1) and (3) of the Partition Act, and if a partition action can bedismissed, after judgment, for want of diligence in prosecution, it canarguably be said even the final decree in a partition action ought tobe vacated and the action dismissed even after the final decree wasentered, if the final decree has been so entered, after inordinate delayand although the final decree had been entered yet the action hadnot been prosecuted with due diligence – in that it had been prosecutedby fits and starts – this case in hand being a shining example, ifnot a memorable one, of a case being prosecuted in a leisurely manneror at a leisurely pace.
Just as much as an action cannot be withdrawn after judgment,so also an action cannot be dismissed after judgment, on the groundof non-prosecution.
As a final note, I must say this, ie that a Judge, as somebodyhad said, must have two salts – the salt of wisdom, lest he be insipid(or foolish) and the salt of conscience, lest he be devilish. If I hadthe heart or had been unfeeling enough to dismiss this action, in thepeculiar circumstances of this case, as suggested by the learnedcounsel for the 9A, 51 A, 53, 54 and 55 defendants-appellants, I would,for certain, be considered devilish; and I trust that this order satisfiesto some degree, at least, the criteria spelt out above.
The appeal of the above-mentioned defendants-appellants againstthe order dated 26. 5. 1988 of the learned District Judge is herebydismissed with costs fixed at Rs. 6,300.
HECTOR YAPA, J. – I agree.
PEIRIS AND OTHERS v. CHANDRASENA AND OTHERS