057-NLR-NLR-V-74-S.-WEJERATNE-and-another-Appellants-and-N.-WIJERATNE-Respondent.pdf
H. N. G. FERNANDO, C.J.— Wijcralnc v. Wijcralnc
J9'
1971 Present: H. N. G. Fernando, C.J., AJles, J., and de Kretser, J.
S. WIJERATJNE and another, Appellants, andN. WIJERATNE, Respondent
S. G. 223(67 (Inly.)~D. G. Galle, 2987(PAppeal—Xcccssary parly—Failure to noire hi’n as a respondent—1/iability of theappeal to be dism issed—Civil Procedure Code, s. 76(1—Supreme Court Appeal”(Special Provisions) Act ATo, i of 19C0, a. 4 (J).
"Where the failure to name a necessary party ns a respondent to an appeal is adefect or on obvious character, tlio appeal is liable to bo dismissed. In such acase iho decision of the Full Bruch in Ibrahim v. Becbec (19 AT. L. B- 259)continues to bo binding despifo the enactment of the Supremo Court Appeals(Special Provisions) Act No. -t of 19G0.
Appear from an order of the District Court, GaDe.
tV. Jayewardene, Q.C., with JV. R. 31. Dalvutallc, Ben Eliyalambyand G. M. S. Sameraueera, for the 11th and 28th defendants-appellants.
Hurischandra Mend is, with N. T. S. Kvlctralne and Bimul Bajapakse,for the plaintiff-respondent.
Cur. adv. vult.
May 7, 1971. H. N. G. Fernando, G.J.—
This was an action for partition of a land described as “ the westernportion of feoga ha watteIn the plaint shares were allotted among
others to the plaintiff, to the 11th defendant, and to the 19th defendant.Upon a commission issued by ihc Court, Plan No. 385 of August 1963was prepared, showing Lots A, B, C and D as comj>rising the land describedin the plaint..
At the instance of the 11th defendant and her husband the 2-Sfhdefendant, a second commission for survey was issued, and plan No. 502.was prepared in June 196:1. Thereafter the 11th and 2S(h defendantsfiled an amended answer, stating that the western portion of Bogahawatfeconsisted only of the Lots Al, B, C and I) shown in Plan No. 502, andthat Lot A2 shown in that Plan formed a part of the extern portion ofBogahawatte. According to this answer, more than half of the extentLXXXV—9
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H. N. G. FERNA27DO, C.J.—Wijerilne v. Wijcratnc
of Lot A depicted in the first Plan No. 3S5 fell outside the corpus claimedin the plaint. The 11th and 28th defendants also contested the devolutionof title set out in the plaint. If their contention was correct, the sharesallotted in the plaint to the plaintiff and to the 19th defendant wouldhave to be reduced.
The 19th defendant is the husband of the plaintiff; he admitted incross-examination that he had worked up the case on behalf of the plaintiff.At first he appeared content to rely on the fact that a 1/6 share of thecorpus had been allotted to him in the plaint. But after the 11th and28th defendants raised the disputes maintained above, the 19th defendantalso filed a statement of claim, in which he averred that the coipus ofthe action consisted of the Lots A. B, C and D depicted in the first PlanNo. 335. He was represented throughout the trial by a separate proctorand not by the proctor and Counsel who conducted the case for theplaintiff. After the plaintiff gave evidence, the 19th defendant himselfgave evidence in which he contradicted the ease for the 11th defendant,both in the matter of the extent of the corpus and in the matter of thedevolution of title. lie also produced receipts for municipal taxespaid by him in respect of the property. His proctor cross-examinedboth the plaintiff and the 11th defendant.
The learned District Judge entered judgment on 23.10.1967 rejectingthe claims of the 11th and 2Stli defendants, who filed a petition of appeal,in which they named onlj' the plaintiff as respondent. On 6.11.1967..after the appealable time had elapsed, their proctor stated to Court thatthe petition of appeal also affects the 19th defendant ", and ho tendereda copy of the petition of appeal, with notice of appeal and notice of securityfor service on the 19th defendant. Bu* subsequently, on 2Sth December1967 the proctor stated to Court that if is not necessary to issue noticeson the 19th defendant.
fn the result, the 19th defendant is not a party to this appeal, andCounsel for the plaintiff-respondent lias on that- ground taken apreliminary objection to the hearing of this appeal. In 1916, a FullBench of this Court, in the case of U.rahim v. JJcebce 1, ruled as followsupon a similar objection :—
" I have no doubt as to the power of the Supreme Court to dismissan appeal, on the ground that it has not been properly constituted bythe necessary parties being made respondents to it, and I am equallyclear that that power should be exercised, unless the defect is notone of an obvious cnaraeter, which '‘ould not reasonably have beenforeseen and avoided. ”
That ruling has been consistently followed. The. question thereforeis whether, in the circumstances of * tic present case, the failure to join1 (lOlG) 10 X. L. R. 230.
H. N. G. FERNANDO. C.J.— Wijeratne v. IVijeralne
JS5
the 19th defendant as a party to the present appeal is or is not adefect of an obvious character. Considering that the 19th defendantactively participated in the action, and that his interests wouldundoubted^7 be affected b}7 the appeal (a matter which was indeedadmitted by the appellants-' proctor on 6.11.1967), I can sec no excusefor failure to make him a respondent to the appeal, or for the proctor’sstatement on 2Sth December 1967 that the 19th defendant need notbe served with the requisite notices.
Counsel for the appellants submitted that the decision in Ibrahim v.Bccbce may no longer be binding, in view of the Supreme Court Appeals(Special Provisions) Act, No. I of I960. The relevant provision of thatAct for present purposes is the provision in s. 1 (1) that “ the SupremeCourt shall not exercise the powers vested in such Court by any writtenlaw to reject or dismiss that appeal on the ground onlj7 of any error,omission or default on the part of the appellant in comptying with theprovisions of any written law relating to such appeal, unless materialprejudice has been caused thereby to the respondent to such appeal
The requirement, that every necessary party must bo named as arespondent to ail appeal, is not a- requirement of any written law, butis instead a rule of procedure laid down by the Courts. If a party isnamed a respondent to an appeal, then the provisions of s. 756 of theCivil Procedure Code which require notice of appeal and notice of securityto be furnished to the named respondents is a requirement of writtenlaw, and therefore the provisions of Act No. I of I960 are applicable inthe ease of a breach of that requirement. The Act was enacted inconsequence of the decisions of this Court in cases such as Thenuicam v.1'hemiuam1 and Lcclis Singho v. John Singho2 and enables the SupremeCourt to grant relief for omissions or delays which were referred to in(hose decisions. But the decisions did not touch upon the consequencesof the failure to join a necessary party as a respondent to an appeal.
I am therefore of opinion that the decision of the full Bench in Ibrahimv. Beebee continues to be binding despite the enactment of Act No. 4 ofI960.
The preliminary objection has accordingly to be upheld, and the appealis rejected with costs.
Alles, J.—I agree.
De Kbetser, J.—I agree.
Appeal rejected .
* (1959) 01 JV. L. R. 49.
1 (1959) 61 N. L. R. 209.