SENARATNE AND ANOTHER vs. WIJELATHA

015-SLLR-SLLR-2005-V-3-SENARATNE-AND-ANOTHER-vs.-WIJELATHA.pdf


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SENARATNE AND ANOTHERVSWIJELATHACOURT OF APPEAL.
SOMAWANSA, J. (P/CA), ANDBASNAYAKE, J.
CA 701/2004 (REV.).
DC PANADURA783/P.
FEBRUARY, 8, 2005.
Civil Procedure Code, sections 146, 753-lssues-Disallowed-Partition action-Sections 18(2), 19,23(1), 48(1) – Plan depicting a larger land – No leave toappeal application-Revisionary jurisdiction invoked – Maintainability ?
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Senaratne and Another v. Wijetatha (Basnayake, J.)
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The defendant-petitioners sought to vacate the orders made by the DistrictJudge disallowing certain issues, and recording of an admission. The issueswere rejected on the basis that once parties admit the corpus, no issue couldbe allowed disputing the corpus, the other issues were rejected as they did notarise from pleadings.
The defendants moved in revision.
HELD:
The preliminary plan contained 6.25 perches more than the areadescribed in the plaint. The Surveyor does not explain the disparity.
Though the parties have agreed with regard to the land referred toin the preliminary plan as the land to be partitioned it was incumbentupon the trial Judge to question the Surveyor with regard to theextra 6.25 perches added, when it was brought to his notice, andre— issue the Commission to survey the land as referred to in theplaint.
Revisionary powers could be exercised where a miscarriage ofjustice has occured due to a fundamental rule of procedure beingviolated only where a strong case is made out amounting to apostive miscarriage of justice.
APPLICATION in revision from an order of the District Court of Panadura.Cases referred to :
Bininda vs. Sediris Singho 64 NLR 48
Sopaya Silva vs. Magilin Silva (1989) 2 Sri LR 105
Brampy Appuhamy vs. Manis Appu-60 NLR 337
Athukorale vs. Samyanathan 41 NLR 165
Rustom vs. Hapangama (1978/79) Sri LR. 225
Thilagatnam vs. Edirisinghe (1982) 1 Sri LR 56
lynul Kareeza vs. Jayasinghe (1986) 1 Car 109
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Hotel Galaxy (Pvt.) Ltd. vs. Mercantile Hotels Management Ltd (1987) SriLR 5
Jonita vs. Abeysekera – Sri Kantha Law Reports Vol. IV-2
Wljesinghe vs. Thamararatnam – Sri Kantha Law Reports Vol. IV-2
Gnanapanditham vs. Balanayagam (1998( Sri LR 391
Vanik Incorporation Ltd. vs. Jayasekera (1997( 2 Sri LR 365
C. Hewamanage for 2nd and 3rd respondents-petitioners.
Thisath Wljegunawardane with Sandhaya de Silva tor 1st defendant-respondent.Plaintiff-respondents absent and unrepresented.
Cur. adv. vult.
29th September, 2005.
ERIC BASNAYAKE, J.The 2nd and 3rd defendant petitioners (herein after referred to as 2ndand 3rd defendants) filed this application seeking to vacate the ordersmade by the learned District Judge Panadura on 09.01.2004. By thatorder the learned District Judge overruled an objection raised by the counselfor the 2nd and 3rd respondents on the recording of the 2nd admission andalso disallowed issues 14,15,16,17,22,30 and 32.
The 2nd admission is with regard to the corpus (as shown in plan No.1289A of 21.01.1999 drawn by D. A. Wljesuriya, Licensed Surveyor). The2nd defendant filed a statement of claim on 20.03.2000 and an amendedstatement of claim on 10.03.2003 and another amended statement ofclaim on 27.11.2003. The 3rd defendant filed his statement of claim on
and an amended statement of claim on 10.03.2001. In allthese statements of claim the 2nd and 3rd defendants admitted the corpusas shown in the preliminary plan 1289A and also claimed 5/20 and 1/20shares respectively. The learned District Judge said that the defendants,having admitted the corpus, cannot be heard to say that they deny it.
The disputed issues are as follows :
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Senaratne and Another v. Wijelatha (Basnayake, J.)
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Was the land surveyed substantially larger than the land sought tobe partitioned ?
Was a lis pendens registered in respect of the larger land ?
Should the plaintiff file an amended plaint and register a lis pendensin respect of the larger land ?
Should lot 1 of Plan No. 720 be excluded ?
22. Could the deed No. 365 get the benefit of prior registration, when itis not registered in the correct folio ?
30. Did the 1st defendant deny that he was entitled to 1/2 by deedNo. 365 ?
32. Could the 2nd and 3rd defendants claim lot 1 in plan No. 720 byway of prescription ?
The learned District Judge rejected issues 14 to 17 on the basis thatonce parties admit the corpus, no issues could be allowed disputing thecorpus. The rest of the issues were disallowed as they did not arise frompleadings.
The 1st defendant respondent (1st defendant) filed objections to thepresent application and prayed for a dismissal on the ground that (a) thedefendants having admitted the corpus cannot be allowed to deny it. (b)Failure to explain the reason for not exercising the right of appeal, (c) Notshowing exceptional circumstances to entitle them to invoke revisionaryjurisdiction, (d) Laches.
The plaintiff filed this partition action to partition a land of 30.75 perchesas shown in plan No. 2202 of 27.11.1939 drawn by A. S. Fernando LicensedSurveyor. Lis pendens was registered for 30.75 perches of land. Commissionwas issued to the Court Commissioner to survey the land described in theschedule to the plaint in extent 30.75 perches. Anyhow the preliminaryplan contained an extent of 37 perches of land which is 6.25 perches moreand about 20% larger than the area described in the plaint. The surveyorclaims that the land surveyed is the same as that described in the schedule
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to the plaint. The surveyor does not explain the disparity. It is irregular fora surveyor, when preparing a preliminary plan to survey and include in thecorpus any land other than that which is referred to in the plaint in theabsence of an additional commission issued under section 23(1) of thePartition Act. Bininda and Sediris Singhon etc.
The case record contained a motion dated 28.11.2003 filed on behalf ofthe plaintiff moving to re—issue the commission to the surveyor to survey30.75 perches of land which was not adhered to. In Sopaya Silva vs.Magilin Silva* S. N. Silva J. (as he then was) finds no fault in the lis pendenswhen registered as described in the schedule to the plaint but in thepreliminary plan. S. N. Silva J. (as he then was) said “If the land surveyedis substantially different from the land as described in the schedule to theplaint the court has to decide whether to issue instructions to the surveyorto carry out a fresh survey in conformity with the commission or whetherthe action should be proceeded with in respect of the land as surveyed”.
Referring to Bramphy Appuhamy vs. Monis Appuhamy> where a landsubstantially smaller than the land described in the plaint was surveyedSilva J. said “the reasons underlying the decision of the Supreme Courtthat is the finality and conclusiveness attaching to the interlocutory andfinal decrees in terms of section 48(1) apply with even greater force to asituation where larger land is surveyed”. Silva J. having held that the DistrictJudge erred in proceeding with the action to partition the substantiallylarger land, suggested the following courses of action after hearing theparties, namely:
to re—issue the commission with instructions to survey the landas described in the plaint. The Surveyor could have been examinedorally as provided in section 18(2) to consider the feasibility of thiscourse of action;
to permit the plaintiff to continue the action to partition the largerland as depicted in the preliminary survey. This course of actioninvolves the amendment of the plaint and the taking of otherconsequential steps including the registration of a fresh lis pendens.
to permit any of the defendants to seek a partition of the larger landas depicted in the preliminary survey. This course of action invlovesan amendment of the statement of claims of that defendant andthe taking of such other steps as may be necessary in terms ofsection 19 (2).
Senaratne and Another v. Wijelatha (Basnayake, J.)
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The plaint, the deeds and the Us pendens describe only an extent of30.75 perches of land. The preliminary plan contained an extent of 6.25perches more which is more that 1 /5th of the extent of the land describedin the schedule to the plaint. Although the parties have agreed with regardto the land referred to i n the preliminary plan as the land to be partitioned,it was incumbent upon the District Judge to question the surveyor withregard to the extra 6.25 perches added, at least when it was brought to hisnotice, and re—issue the commission to survey the land as referred to inthe plaint. This was the desire of the plaintiff too as disclosed in a motion.The learned Judge was too hasty in taking the-case for trial withoutconsidering the preliminary steps which are very vital in partition actionsdue to the finality attached to it.
Now I shall deal with the revisionary powers of this court. Section 753 ofthe Civil Procedure is as follows :
753.—The Court of Appeal may of its own motion or on anyapplication made call for and examine the record of any case,whether already tried or pending trial, in any court, for the purposeof satisfying itself as to the legality or propriety of any judgment ororder passed thereon or as to the regularity of the proceedings ofsuch court…. and may upon revision of the case brought before itpass any judgment or make any order thereon, as the interests ofjustice may require.
The powers of the Appeal Court with regard to revision is well acceptedin a large number of cases. These powers are wide enough to give it theright to revise any order made by an original court whether an appeal hasbeen taken against it or net. Atukorala vs Samynathan(4) However suchpowers would be exercised only in exceptional circumstances whichdepend on the facts of each case, Rustom vs. Hapangama(5> Thilagatnamv. Edirisinghe16* lynul Kareeza v. Jaysinghe<7> Hotel Galazy Pvt. Ltd. v.Mercantile Hotels Management Ltd.<8> Jonita v. Abeysekera<9>Revson is adiscretionary remedy and will not be available unless the applicationdiscloses circumstances which shock the conscience of the court.Wljesinghe vs. Thamararatnamm The question whether delay is fatal toan application in revision depends on the facts and circumstances of thecase and having regard to the very special and exceptional circumstancesof the case. Gnanapanditham vs. Balanayagam.,u) These powers shouldbe exercised where a miscarriage of justice has occurred due to afundamental rule of procedure being violated, but only where a strong caseis made out amounting to a positive miscarriage of justice—VanikIncorporation Ltd. vs. Jayasekera12
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I am of the view that this is a fitting case to exercise revisionaryjurisdiction.
Due to the aforesaid reasons I allow this application and set aside theorder made by the learned District Judge on 09.01.2004. I direct that acommission be issued to the surveyor to resurvey the land as described inthe schedule to the plaint without any additional charge and to commencethe proceedings afresh from the stage of the return to the commission bythe surveyor. I make no order as to costs of this application.
SOMAWANSA J. (P/CA) — I agree.
Application allowed.