Venetia Perera v. Simon Perera (Perera, J )
SARANELIS AND ANOTHERv.
COURT OF APPEAL.
BANDARANAYAKE, J. AND 'DHEERARATNE, J.
L A. 2/77.
D.C. KANDY 100384 L.
JANUARY 23 AND 27. 1987.
Civil Procedure Code-Agreement by deed to provide right of way for use byneighbours, with Municipality-Sun for obstruction of right of way-Settlement inCourt-Variation/cancellation of settlement-Court misled-Inherent powers-S 408and s 839 of Civil Procedure Code.
The defendants agreed by deed with the Municipal Council to provide a 5 feet right ofway for use by the neighbours. The plaintiff who was a user of the road sued thedefendants for obstruction of the roadway The case was settled whereby after the'construction of the road at joint expense in accordance with the deed with theMunicipality, decree was to be entered. There was no reference to any plan depictingthe roadway in the settlement. This settlement was entered into without reference tothe fact that the 1 st defendant had already agreed with the Municipality to vary theroadway he undertook to provide on the original deed of agreement.
The general principle that should be followed is that a settlement entered into by theparties and notified to Court in terms of s. 408 of the Civil Procedure Code should notbe lightly interfered with whether a decree has been entered by Court in pursuancethereof or not. But in this case the Court had been misled into recording the settlement
Sri Lanka Law Reports
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in regard to a roadway without a plan or even a sketch so that there would be nouncertainty about the course of the right of way. Besides the settlement involved therights of the Municipal Council who was not a party. In these circumstances as theCourt was misled setting aside the sett.leme.nt using the inherent powers of Court unders. 839 of the Civil Procedure Code was warranted in the interests of justice.
Cases referred to:
Shirekulidima 'Pa' Hedga v. Maha Blya-( 1886) 10 Bombay 435.
Perera v. Perera-( 1948) 50 NLR 83.
Sinna Veloo v. Messrs. Lipton Ltd.-(1963) 66 NLR 214.
APPEAL from order of the District Court of Kandy.
Dr. H. W. Jayewardene. Q.C. with G. Candappa. P.C, and Miss T. Keenawinna fordefendant-appellants.
Nimal Senanayake. P.C. with Saliya Mathew and Miss S. Theresa forplaintiff-respondents.
Cur. adv. vult.
March 20, 1987.
The plaintiff-respondent filed this action on 24.07.1973 seeking adeclaration for a right of way to her land. It was alleged-
that on 15.02.1955, the defendant-appellants withoutpermission from the Munieipal Council, Kandy, had built a houseencroaching upon the road reservation leading to theplaintiff-respondent's land;
that the Municipal Council, precedent to the approval of thatbuilding, stipulated that the defendant-appellants should providea right of way at least 5 feet wide to the users of theneighbouring lands;
that in pursuance of the said requirement by the MunicipalCouncil the defendant-appellants entered into agreementNo. 4084 of 31,05.1956 attested by N. Coomaraswamy,Notary Public, whereby they bound themselves to provide a rightof way not less than 5 feet wide for the use of others;
CASaranehs v. Agnes Nona (Dheeraratne. J.)111
that since the aforesaid agreement the plaintiff and others used aright of way depicted in plan No. 3987 dated 15.03.1970 madeby R. C. 0. De La Motte, licensed surveyor, which is also .depicted in plan No. 1584 dated 14.06.1972 made by L. W.Ariyasena, Licensed Surveyor; and
that on 1.3.07.1973 the defendant-appellants unlawfullyobstructed the said right of way depicted in the said two plans. .
The defendant-appellants who are husband and wife, by theiranswer, while denying most of the averments in the plaint, stated thatthe roadway they were prepared to provide to the Municipal Counciland what the Municipal Council was prepared to accept, was aroadway along the north-western and north-eastern boundaries of theland belonging to the defendants, which land is depicted in planNo. 1087 of 13.11.1949 made by B. S. A. Kroon, licensed surveyor.In fact, according to the agreement No. 4084, that is what thedefendants had agreed to grant the Municipal Council.
On 04.05.1976, when the case came up for trial, a settlement wasreached by the parties, a translation of which would read as follows:
“agreement No. 4084 dated 31.08.1956 entered into
between the defendants and the Municipal Council, Kandy inrespect of the roadway claimed in the plaint is produced by theMunicipal Council today for perusal of court. The parties to theagreement are the Municipal Commissioner, Kandy and the (first)defendant. The roadway agreed to be given by the defendant ismentioned in the schedule to the deed. The defendant agrees toprovide the roadway mentioned in that deed without anyobstruction. It is ordered that the roadway will be provided underthe supervision of P. H. T. De Silva, the land officer of the MunicipalCouncil. Counsel for the defendants agrees that for the purpose ofproviding this roadway, the plan which is in the custody of thedefendant, will be made available to the land officer, if so required.The first defendant agrees to give the roadway as mentioned above.He also consents on behalf of his wife. It is agreed that the plaintiffand the defendant will bear equally the expenses incurred inconstructing the roadway, according to the estimate which will bepresented by the buildings engineer of the Municipality. After thesaid sum of money is deposited with the Municipal Council, the
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Municipal Council should construct the road. After the road isprovided, decree will be entered. Call case on 8th June for theestimates of the Municipal Council. Parties must deposit moneywith the Municipality within one month of the date on which the *estimate is submitted. After these conditions were explained, theplaintiff and the 1 st defendant signed the record."
On 25.05.1976, the plaintiff-respondent filed petition and affidavitseeking to set aside or to vary the settlement entered into in court. Thegravamen of the complaint of the plaintiff-respondent, was that sinceno reference was made in the settlement to any plan depicting theroadway claimed, particularly to plan No.3987 of De La Motte, it isuncertain as to whether the defendant had agreed to give the roadclaimed in the plaint or any other road as there is some doubt aboutthe road mentioned in agreement No. 4087. In these circumstancesthe plaintiff-respondent prayed that either the settlement entered intobe set aside or varied making mention that the road agreed upon isdepicted in plan No. 3987. The defendant-appellants resisted thisapplication.
On 13.09.1976, when the matter came up for inquiry,attorney-at-law for the plaintiff-respondent moved for an adjournmentof the inquiry to enable him to summon the Municipal authorities toshow that after the agreement No. 4084 was entered into, the 1stdefendant having submitted a fresh building application, had agreedwith the Municipality to vary the proposed roadway he undertook toprovide by the agreement No. 4087. The attorney-at-law whoappeared for the defendant-appellants denied that there was anyalteration whatsoever to the roadway, agreed upon originally.
On 25.10.1976, when the matter came up for inquiry, the learnedAdditional District Judge called up P. H. T. De Silva, the land officer ofthe Municipality, to give evidence. This officer stated to court thatsubsequent to the agreement No. 4084, the defendant agreed to alterthe course of the roadway as shown in plan produced marked XI,making provisions for a roadway "20 feet away from the rear of theproposed building" of the 1st defendant. On this evidence which thelearned trial judge accepted, he came to the finding that thedefendant-appellant had failed to bring this alteration to the notice ofcourt before the parties reached the settlement and on that ground heproceeded to set aside the settlement entered on 04.05.1976. Thisappeal has been preferred from that order with leave having beingobtained.
Saranelis v. Agnes Nona (Dheeraratne, J.)
Mr. Nimal Senanayake, P.C. for the plaintiff-respondent took up apreliminary objection to this appeal being heard. He contended thatthe application to obtain leave must be rejected as it has been filed outof time. The application to leave for appeal has been filed on05.01.1977. It would appear that this application for leave to appealhad been filed at a time when the Administration of Justice Law was inoperation, and that in terms of section 326(1) of that law, no timelimit had been prescribed within which such an application should befiled, unlike in the case of a notice of appeal, for which a time limit of14 days was provided for, in terms of section 320(1) of that lavy. Ifind no merit in this preliminary objection and it therefore fails.
Dr. Jayewardene, Q.C. for the defendant-appellents contends thatthe trial court had no inherent power to set aside the settlemententered in terms of section 408 of the Civil Procedure Code. Section408 reads:
'If an action be adjusted wholly or in part by any lawful agreementor compromise, or if the defendant satisfy the plaintiff in respect tothe whole or any part of the matter of the action, such agreement,compromise or satisfaction shall be notified to the court by motionmade in presence of, or on notice to all the parties concerned, andthe court shall pass a decree in accordance therewith, so far itrelates to the action, and such decree shall be final, so far as itrelates to so much of the subject matter of the action as is dealtwith by the agreement, compromise or satisfaction.'
It appears to me tfiat the general principle which should be followed,is not to interfere lightly with a settlement entered into by the partiesand notified to court, whether a decree has been entered by court inpursuance thereof or not. The reason underlying this principle hasbeen so eloquently expressed by West. J. in the case of Balprasad v.Dharmidhar Sakhram printed as a footnote to the case ofShirekulidima 'Pa' Hedga v. Mafia Blya (1) quoted with approval byNagalmgarr, J. in Perera v. Perera (2) at page 83:
"The admission of a power to vary the requirements of a decreeonce passed would introduce uncertainty and confusion. No one'srights would at any stage be so established that they could bedepended on. and the courts would be overwhelmed withapplicaticns for the modification on equitable principles of ordersmade on full consideration of the cases which they are meant toterminate. It is obvious that such state of things would not be farremoved from a state of judicial chaos."
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Dr. Jayewardene also relied on the case of Sinna Veloo v. MessrsUpton Ltd. (3) where Herath, J. held that once the terms of sattlemententered upon are presented to court and notified thereto and recordedby court, a party cannot resile from the settlement even though thedecree has not yet been entered. In that case the defendant-appellant, .having revoked the proxy given to one proctor and having filed a fresh :proxy through another, sought to resile from the settlement tendered •to court on the grounds inter alia that the settlement had been entered 'without his consent and notified to court in his absence. Interpretingsection 408, Herath, J. observed that the presence of parties doesnot mean the presence of parties personally, for, the code providedthat the parties are represented by their proctors, unless the codeexpressly requires personal appearances.
According to the facts of this case, it appears to me that it wasdoubtful as to what right of way the parties agreed at the settlement,and this situation had been brought about by the 1 st defendant in notapprising court or the plantiff of his subsequent variation of the courseof the right of way on a plan submitted to the Municipal Council. It isright to say that the court has been misled into recording thesettlement and it appears to me to be very unlikely that the courtwould have given its sanction to the settlement and recorded it, if thecourt was aware that subsequent to agreement No. 4084, the 1stdefendant had agreed with the Municipal Council for an alteration ofthe right of way. This situation would have no doubt been avoided hadthe settlement been recorded with reference to a plan or even a sketchdepicting the proposed right of way. From the proceedings it is quiteapparent that there was no plan or sketch before court depicting theright of way agreed upon, so that there could have been nouncertainty about the course of the right of way. Besides, this was asettlement which involved not only the rights of the parties beforecourt, but also those of a third party, namely the Municipal Council ofKandy.
In my view, circumstances of this case amply warranted the courtfrom setting aside the settlement entered in terms of the inherentpower vested by section 839 of the Civil Procedure Code, lecessaryto secure the ends of justice, for in this case the settlement would nothave been sanctioned by court had it not been misled, which isdifferent from the position of a party having being misled
Saranelis v. Agnes Nona (Dheeraratne. J.)
The appeal is therefore dismissed and in the circumstances of thiscase the parties will bear their own costs of this appeal. Registrar tosend the record of this case back to the District Court of Kandy asearly as possible for the trial to be proceeded with on the pleadingsalready filed or on such amended pleadings parties may wish to file. Inview of the fact that the plaint in this case has been filed in 1973, wedirect the District Court to take steps to conclude the trialexpeditiously.
BANDARANAYAKE, J. -I agree.
Case sent back.