Perera v. Perera
Perera v. Perera
COURT OF APPEAL.
RANASINGHE, J. AND ATUKORALE, J.
’c. a. (s.c.) 267/79—d. c. gampaha 16993/p.july 20, 1979.
Partition Law, No. 21 of 1977, section 32, 48 (4)—Application for reliefunder subsection (4) of section 48—Requirement that such applicationbe made within thirty days of return to commission by Surveyor—Whether imperative provision.
A party who wishes to avail himself of the relief provided bysection 48 (4) (c) of Partition Law, No. 21 of 1977, must make hisapplication to Court not later than thirty days after the return tothe commission by the surveyor under section 32 of the said Law hasbeen received by the Court. This is an imperative provision.
Where the surveyor is commissioned by Court to make his returnon or before a certain date, there is nothing to preclude the surveyorfrom making his return to Court before the said date mentioned in theorder and the thirty days will then run from the date of the actualreturn to the commission made by the surveyor.
APPLICATION to revise an order of the District Court, Gampaha.
V. Dharmalingam, with L. Hirimuthugoda, for .the 16th defendant-petitioner.
L. C. Seneviratnc, for the plaintiff-respondent.
Cur. adv. milt.
Sri Lanka Law Reports (1978-79) 2 S. L. R.
September 14, 1979.
ATUKORALE, J.The plaintiff-respondent (hereinafter referred to as the respon-dent) filed this action to partition a land called Galabodawattadescribed in the schedule to the plaint. The 16th defendant-petitioner (hereinafter referred to as the petitioner) appearedbefore the surveyor and made claim to a share of the land, tocertain plantations and also to that portion of a building whichfell within the corpus surveyed. He was then added as the 16thdefendant. He filed a statement of claim in which he averred thatthe corpus surveyed was only a part of a larger land whichshould have been made the subject matter of the action. He setout his title to the larger land which he described in the scheduleto his statement of claim and prayed for a dismissal of the action.He made no application to court to have the larger land surveyed.The preliminary investigation into the case was fixed for26.11.1976. On that day the Attorney-at-law appearing for thepetitioner stated to court that he had no instructions from hisclient and that he was not appearing for him. As the petitionerrefused to pay costs in the event of a postponement beinggranted to him, the court proceeded to hold the preliminaryinvestigation on that day and fixed the case for trial on 17.12.1976.On that day the petitioner was absent and unrepresented andafter hearing the evidence the learned District Judge deliveredjudgment ordering a partition of the corpus surveyed. Interlo-cutory decree was entered in terms of the judgment and a com-mission was ordered to be issued to partition the land returnableon 29.4.1977- As the interlocutory decree had not been filed bythat date, court re-fixed the returnable date of the commissionfor 25.7.1977. On that day court ordered the commission to issuereturnable on 3.10.1977. Thereafter the returnable date wasextended from time to time and on 2.8.1978 it was re-extendedfor 1-11.1978. On 20.9.1978 the surveyor’s return to the commis-sion was received by court. On 15.11.1978 the petitioner filed anapplication under section 48 (4) of the Partition Law asking forspecial leave to establish his right, title and interest to the landand to have the interlocutory decree set aside. Notice of this appli-cation was ordered to be issued on the parties returnable on
On that day although no notices had been served onthe parties for want of time, the respondent’s attorney tooknotice of the application and objected thereto on the ground thatthe application was out of time. The learned District Judge afterhearing both parties held that the application had not been made
CAPerera v. Perera (Atukorale, J.)193
within the time prescribed therefor and refused the application.The present application is to revise this order of the learnedDistrict Judge-
Learned counsel for the petitioner submitted to us that thelearned District Judge was wrong in not issuing notices of theapplication to the parties who had derived interests under theinterlocutory decree. He also submitted that the learned DistrictJudge should have under section 48(4) (c) of the Partition Lawproceeded to hold an inquiry on the application and if at suchinquiry he was satisfied of the existence of facts set out in sub-section (4) (c) of that section it was incumbent on him to havegranted the petitioner special leave upon such terms and condi-tions as he may impose at his discretion. I do not think there isany merit in either of these submissions. Subsection 4 (a) ofsection 48 of the Partition Law states that a party “ may at anytime, not later than thirty days after the date on which the
return of the surveyor under section 32is received by the
court, apply to the court for special leave” These words make
it imperative that the application should be made to court notlater than the prescribed period of thirty days. In the presentcase it is quite clear that the return of the surveyor under section32 was received by court on 20.9.1978. The petitioner had there-fore, if he wished to avail himself of the relief provided by section48(4) (c), to apply to court not later than thirty days after
He filed the application on 15.11.1978 which was clearlybeyond the period prescribed. In view of the clear and plainmeaning of the words used in the subsection, I cannot agree withthe submission of learned counsel for the petitioner that the thirtydays must be computed from 1.11.1978, namely the date fixedby court for the return of the commission. On a considerationof sections 27 and 28 of the said Law together with the formprescribed in the Second Schedule thereto, it is clear that thesurveyor was commissioned by court to make his return on orbefore Id 1-1978. There was thus nothing to preclude the surve-yor from making his return to court on any day prior to 1.11.1978.Hence the application of the petitioner was not one that thecourt could have entertained as it was out of time. There wasthus no duty cast on court to issue notices on the parties con-cerned. When this matter was brought to the notice of the learnedDistrict Judge, he quite correctly rejected the application. Forthe above reasons the present application is refused with costsfixed at Rs. 210.
RANASINGHE, J.—I agree.
Application dismissed2—A 57686
Perera v. Perera