Podinona v. Premadasa
G.P.S. DE SILVA, C.J.
S.C. SPLA 346/95,
D.C. KEGALLE 22333/P
FEBRUARY 13, 1996.
JUNE 3, 1996.
Partition – Partition Law No. 21 of 1977 – S.32, S.42 Special Leave underS.48 (4) – Anytime not later than 30 days – Meaning.
The Appellant (10th Defendant) failed to appear at the Trial. Evidence wasled and judgment was delivered on 30.9.87, and the Interlocutory Decreeentered. On 10.2.89, the 10th Defendant made an application under S48(4) for special leave to establish her Right, Title and Interest to the land.The District Court dismissed the application on the ground that it was filedprematurely inasmuch as it was filed before the date on which the return ofthe Surveyor under S.32 was received by Court. The Surveyor made hisreturn on 3.11.89. On appeal, the Court of Appeal held that, the applicationis premature and dismissed the appeal, on appeal.
It would appear that once the Court enters the interlocutory Decree theaggrieved party could make the application for relief "at any time", subjecthowever to the qualification that the application has to be made "Not laterthan 30 days" after the return to the Commission under S.32 (or S.42).
The section specifically sets out the last day for filing the application forrelief. A final date for making the application has to be specified for other-wise, there would be no finality to the Interlocutory Decree itself.
The purpose of the reference to the return of the Surveyor in the section isto determine the last day on which the application could be filed. The refer-ence to the return does not postulate the commencement of the time afterwhich the application could be filed.
Sri Lanka Law Reports
 2 Sri L.R.
The grievance of a party arises upon the entering of the InterlocutoryDecree and that would constitute the commencement of the time for filingthe application. It is the Interlocutory Decree which could extinguish orprejudice the rights of the party.
AN APPEAL from the judgment of the Court of Appeal.
Case referred to:
1. Perera v. Perera -1978-79 2SLR -191 (CA)
N.R.M. Daluwatte, P.C. with Gamini Silva for 10th Defendant-Appellant.R.K.S. Suresh Chandra for Plaintiff-Respondent.
Cur. adv. vult.
March 13, 1996.
G.P.S. DE SILVA, C.J.
This is a partition action and the date of trial was 18.8.87. The 10thDefendant who is the Appellant failed to appear at the trial. Evidencewas led, and judgment was delivered on 30.9.87; interlocutory decreewas entered accordingly. On 10.2.89 the 10th Defendant made anapplication under section 48 (4) of the Partition Law No. 21 of 1977 "forspecial leave" to establish her right title or interest to the land whichformed the subject matter of the interlocutory decree. The District Courtdismissed the application on the ground that it was filed prematurelyinasmuch as it was filed before the date on which the return of thesurveyor under section 32 was received by the Court. The surveyormade his return to the commission only on 3.11.89.
The 10th Defendant applied to the Court of Appeal for leave to appealagainst the order of the District Court. The Court of Appeal, agreeingwith the view of the District Court stated, "it is quite clear that thePetitioner has filed the papers 9 months prior to the return of theCommission. Therefore the application is premature."The 10thDefendant has now preferred an appeal to this Court against thejudgment of the Court of Appeal.
The material part of section 48(4) reads thus
Podinona v. Premadasa (G.P.S. De Silva, C.J.)
“Whenever a party to a partition actionbeing a party who has
duly filed his statement of claim and registered his address, fails toappear at the trial and in consequence thereof the right title or interestof such party to or in the land which forms the subject matter of theinterlocutory decree entered in such action has been extinguished orsuch party has been otherwise prejudiced by the interlocutory decree,
such partymay at any time, not later than 30 days after the date
on which the return of the surveyor under section 32. is received by theCourt, apply to the Court for Special Leave to establish the right title orinterest of such party to or in the said land notwithstanding theinterlocutory decree already entered.
The short point that arises on this appeal is whether the applicationfor “special leave" under section 48(4) can be filed only after surveyhas made his return to the Commission under section 32. It seems tome that the view taken by the Court of Appeal (and the District Court)is not in accord with the plain meaning of section 48(4). It would appearthat once the court enters the interlocutory decree the aggrieved partycould make the application for relief“at any time", subject, however,to the qualification that the application has to be made "not laterthan 30 days" after the return to the Commission under section 32 (orsection 42). In other words, the section specifically sets out the lastday for filing the application for relief. As submitted by Mr. Daluwatte,a final date for making the application has to be specified, for otherwise,there would be no finality to the interlocutory decree itself. The purposeof the reference to the return of the surveyor in the section is to determinethe last day on which the application could be filed. It is by referenceto the return of the surveyor that the last day for filing the application iscalculated. The reference to the return does not postulate thecommencement of the time after which the application could be filed. Iagree with the contention of Mr. Daluwatte that the “grievance" of aparty arises upon the entering of the interlocutory decree and that wouldconstitute the commencement of the time for filing the application. It isthe interlocutory decree which could "extinguish* or “prejudice" therights of the party. The case of Perera v Pererat1) which was cited bythe Court of Appeal is if no assistance as the question before us didnot arise for consideration in that case.
I accordingly hold that the Court of Appeal and the District Court
Sri Lanka Law Reports
 2 Sri LR.
were in error when it took the view that the application of the 10thDefendant was "premature''. The appeal is allowed, the judgment ofthe Court of Appeal and the order of the District Court are set aside.The District Court is directed to inquire into the 10th Defendant'sapplication under section 48(4) on its merits, without delay. In all thecircumstances, I make no order as costs of appeal.
KULATUNGA, J. -1 agree.
RAMANATHAN, J. -1 agree.