NAGALJNGAM S.P.J.— Waseela Utnma v. Sally
1954Present: Nagallngam S.P.J. and de Silva J.S. WASEELA UMMA, Petitioner, and C. S. M. SALLY et al.,Respondents.
.S'. ('. (Application) 214—D. C. Matara, 22,166.
Revision—Order of Supreme Court calling for record—Jurisdiction of lower Courtthereafter to continue proceedings.
When, in an application in revision, the Supreme Court calls for the record ofthe proceedings in question, the Judge of the lower Court must forward therecord immediately and has no jurisdiction to continue tho proceedings ;a judgment or order pronounced by him thereafter in contraventionof this rule is ultra tures.
■aA-PPLICATTON to revise certain proceedings of the District Court,Matara.
H. H Tambiah, for the 6th defendant petitioner.
Vernon Wijetunge, for the 1st defendant respondent.
Cur. ado. uitll.
Decomber 21, 1954. Nagalingam S.P.J.—
This is an application for the exercise of the powers of revision vestedin this Court in regard to certain proceedings had in a partition actionbefore the learned District Judge of Matara.
The petitioner who makes this application is the 6th defendant in theaction. She was represented by a Proctor but no answer on her behalfwas filed. On the date of the trial she was absent but her Proctor enteredappearance on her behalf. She relies upon deeds to establish the claimthat she is entitled to about 1 /5th of the land sought to be partitioned, butthe deeds do not appear to have been in the custody of the Proctor on thedate of the trial and in fact the Proctor for the 6th defendant, beyondentering appearance on her behalf, seems to have done little or nothingfor her.
The plaintiffs’ pedigree set out a devolution of title which allotted to the6th defendant certain shares, and though the intermediate deeds werenot produced by the plaintiffs, the 1st plaintiff did however produce thedeed in favour of the 6th defendant and a perusal of that deed would have
426NAOALfNOAM S.P.J .~-Wa*eda Vmtnn r. Snlhj
shown that the 6th defendant had been conveyed the interests which theplaintiffs had allotted to the 2nd, 3rd, 4th and 5th defendants. Eventhe learned Judge’s attention does not seem to have been called tq, thecontents of the deed marked 6DI. That deed on a perusal would havodisclosed the earlier deed on the basis of which title was conveyed amito which the plaintiffs in thoir pedigree had made reference. At the con-clusion of tho trial tho learned Judge reserved his judgment.
The petitioner explains her default at the trial has been due to herserious ailment about that period and on her recovery it was that shemade this application to this Court to have the proceedings of the trialvacated and to permit her an opportunity of proving her claim. That tholearned Judge himself could have given the petitioner no relief is obvious.An appearance bad been entered by Proctor on her behalf and on therecord at any rate there is nothing to indicate that she was in default and infact, in law, she was nob in default. What she seeks to set right by herapplication is the somewhat detrimental appearance put in on her behalfby her Proctor, although, no doubt, ho did it in her best interests.
The application matlo by the petitioner came up before this Court andon the 29th May this Court ordered notice to issue and directed the recordto bo called for. On the 30th May tho Registrar sont a letter to theloarned District Judge calling for the record, hut tho record was notforwarded till tho 16th June. Judgment had not been pronounced inthis case at the date tho lettor of the Registrar calling for the record wasroceived by the learned Judge, but he appears to have delivered Judgment on the 12th June and thereafter forwarded the record.
An interesting question arises whether the learned Judge had juris-diction to enter judgment after this Court had ordered notice on the part iesand called for the record. I think it is axiomatic to say that it is thoduty of every Judge of a lower Court to comply with and carry out thoorders of this Court. I do not think the learned Judge was aware thatthis Court had called for the record of the case at the date he delivered hisjudgment. It seems to mo that the record probably was with tholearned Judge, he having reserved his judgment, hut the letter calling forthe record may havo remained in the office without the fact that such aletter had been received being brought to his notice, and only after thelearned Judge had delivered judgment and returned the record to theoffice, were steps taken to conform' to the order of this Court.
Mr. Wijetunge sought to contend at one stage of his argument that thelearned Judge had jurisdiction to continue the proceedings though thisCourt may have called for the record, but cited no authority in support ofhis contention. Though there is no express authority in point, the caseof Edward v. de Silva 1 is one which sheds some light on this question. Inregard to the question of jurisdiction of an inferior Court to continue pro-ceedings after a petition of appeal addressed to this Court had been filed,Soert-sz A. C. J. expressed himself thus :—
“ Now, the ordinary rale is that once an appeal is taken from thejudgment and decree of an inferior Court, the jurisdiction of that Court1 (1945) 46 N. L. R. 342.
X AO A LING AM S.P.J.— Waatela Vmmn v. Sally
in respect of that case is suspended except, of course, in regard tomatters to be done and directions to bo given for the perfectingof the appeal and its transmission to the Court of Appeal. As LordWest bury, Lord Chancellor (1864), observed in Atlomey-fleneral v.Sillem * ‘ the effect of a right of appeal is the limitation of the jurisdictionof one Court and the extension of the jurisdiction of another Itfollows as a corollary that on that right being exercised the case shouldhe maintained in statu quo till the appellate Court has dealt with it andgiven its decision. ”
It is contended by Mr. Wijetunge however that in the case of an appealwhile the position set out in the passage cited cannot be but regarded asthe true one, yet in the case of an application for revision the principlewould be different. I cannot see that a distinction in principle can bemade out. When this Court by its order of the 29th May, 1953, directednotice to issue and directed the Registrar to call for the record, this Courthad acquired seisin over the case and acquired jurisdiction over it, imme-diately effecting thereby a limitation of the jurisdiction of the DistrictJudge to continue subsequent proceedings.
That this principle cannot be doubted would beapparent if one examinesit in relation to a criminal case. It wiil be manifest that where this Courtin the exercise of its revisionary powers calls for a record in a criminalcase, should the Magistrate not forward it immediately but retain therecord in order to enable him to continue further proceedings, anyattempt on t he part of this Court to control and direct the proceedings inthe lower Court would be nullified. In fact this Court has laid down theprinciple that where a sale ordered by the District Judge is stayed bythis Court, and before the order staying the sale could have been communi-cated to the auctioneer carrying out the sale, or even to the Court, the salehai in point of fact been carried out, tho sale was nothing more than anullity.
I am therefore of opinion that the judgment pronounced by the learnedJudge on the 12th June was ultra vires and must bo set aside. In thoresult the true position would be that there is no final judgment pronouncedin this case.
Tho next question is whether tho petitioner has made out a sufficientcase to entitle her to the relief she claims. She has filed an affidavitsetting out that she was seriously ill on the date of trial and has supportedher averment by the production of a medical certificate in which a medicalpractitioner says that the petitioner was critically ill. This is a land caseand she has produced the deeds upon which her title is based. No reasonbus been suggested why she should have deliberately refrained fromattending Court after she had retained a Proctor'and when she was inpossession of the document which prima facie established her title. Shecould havo gained nothing by delaying the proceedings. There is nocounter-affidavit filed tending to impeach any of the averments made byher in her affidavit.
* 11 Eng. Rep!s. at -p. 1208.
Lewis Singho v. Liyanage
It was however suggested by Counsel for the respondent that thoughshe may have been ill, her husband should have at least informed theProctor of her illness and caused the Proctor.to move for a postponementof the trial. While I am not prepared to say that that would have beena very proper course of conduct to have been pursued, there is nothing inthese proceedings to indicato that the husband was in fact living in thehouse at the relevant date. Besides, I am not sure that where the wifeis a feme sole, as in the Muslim Law, the laches on the part of the husbandcould be taken into consideration for the purpose of denying the wifo herlegal rights. I do not think the argument would have been advancedhad the husband himself been seriously ill, by contending that thewife in those circumstances should have herself gone about and soughtthe protection for her husband of his rights.
It is not donied that if the petitioner is not'given relief in these pro-ceedings she can obtain no relief whatsoever. She would have lost herproperty and not ovon had the right to institute an action for damages.
In all the circumstances I am satisfied that this is a fit case for theexorcise of the powers of revision of this Court and in the exercise ofthose powers I would set asido the proceedings had on the date of trialas well as the judgment and remit the case to the learned Judge for a freshadjudication.
Tho petitioner, howevor, will pay to the plaintiffs the costs of theabortive trial, but she will be entitled to the costs of this application.
be Silva J.—I agree.
S. WASEELA UMMA, Petitioner, and C.S. M. SALLY et al, Respondents
NAGALJNGAM S.P.J.— Waseela Utnma v. Sally