078-NLR-NLR-V-39-SENEVIRATNE-v.-KANAKARATNE.pdf
272
SOERTSZ J.—Seneviratne v. Kanakaratne.
1937Present: Soertsz J. and Fernando A.J.
SENEVIRATNE v. KANAKARATNE.
137—D. C. Galle, 32,549.
. Partition action—Failure to register lis pendens—Two actions pending withrespect to same land—Preference to the first—Ordinance No. 23 of 1927,s. 12 (I).
There is no provision in the Registration Ordinance for dismissing apartition action on the ground that it has not been duly registered.
Where two partition actions are pendiifg with respect to the same landthe action that was first instituted should as a rule be given preference.Silva v. Silva (37 N. L. R. 33) referred to.
^ PPEAL. from an order of the District Judge of Galle.
N.E. Weerasooria (with him Wijemanne), for plaintiffs, appellants.
Li. A. Rajapakse (with him J. R. Jayewardene), for thirty-seventhdefendant, respondent.
(1898) 2 Q. B. D. 300.
Cur. adv. vult.
273
SOERTSZ J.—Seneviratne v. Kanakaratnq.
June 16, 1937i Soertsz J.—
I cannot help observing, although I do so with regret, that this appealreveals another instance of unseemly contests in the District Court ofGalle, to decide which of two proctors shall tax the bill in partition casesin which, the plaints by running into hundreds of paragraphs and involv-ing hundreds of defendants, open up alluring vistas of row upon row offolios at fifty cents a folio. There would hardly have been all thisenthusiasm over the partition of this land if, at the time these plaintscame to be filed, the question of the taxation of the item in the bill ofcosts for making of a copy of the plaint, had been decided in the way inwhich it was later decided in another case from Galle, Wickremasinghe v.Seneviratne In that case a Divisional Bench* held that the Legislatureshould be taken to have intended the words “making a copy ” to beunderstood as making a copy by other than mechanical means. There, mybrother Moseley made this observation “ that a proctor should be able bythe mere act of handing certain script to a printer and paying the latterRs. 35 for. work done, to recover on that account from his client a sumof Rs. 14,355 can only be described as fantastic". The judiciary hasdone everything in its power to mitigate this kind pf evil, bjit for itsabolition the intervention of the Legislature is urgently called fpr. Aproctor may still tax an item of Rs. 14,355 or more for making copies, ofplaints by employing a number of scribes to make manuscript copiesof the plaint. An outlay of a thousand rupees will yield a return in acase like the one in hand of ten thousand rupees or more. I have dwelton this aspect of this case in the hope that the District Judge whendirecting summons to issue will require the copy plaints for service to beprinted, and thus prevent any attempt to get round the ruling I havereferred to. The labourer, no doubt, is worthy of his hire, but no lessis the villager worthy of his land. As things are at the present, he oftenasks for bread and receives not even a stone.
In regard to the question as to which of the two cases should proceedto trial, we were addressed at great length on the topic of the registrationof the lis. The appellants contended that their action was the first tocome into Court and that it has been duly registered and should, therefore,.be given preference, while the thirty-seventh defendant-respondent -urged that the appellant’s lis is not duly registered, but that his is, and thathis action should proceed. I am clearly of opinion that^ there is no -provision in the Registration Ordinance for dismissing a partition actionon the ground that it has not been duly registered. Section 12 (1) ofOrdinance No. 23 of 1927 says •* a precept or order for the service of summonsin a partition case shall not be issued unless and until the action has beenduly registered as a lis pendens”. I read that as meaning that if aDistrict Judge is of opinion that an action has not been duly registered,he may give the plaintiff an opportunity to remedy the defect and maywithold the issuing of a precept till that has been done. In this instance,when the question involved in this appeal came up for consideration bythe trial Judge, in my opinion, both actions had been duly registered, forby then, the registrations of both actions had been connected with the
1 38 K. L. R. 225.
274
SOERTSZ J.—Seneviratne v. Kanakaratne.
folio in which the earliest dealing with this land has been registered,namely, C 2/197 of 1864. But it is objected that that was a registration-of the land as situated in the village of Kahawe, whereas the land issituated, in fact, in the village of Uduwaragoda. The thirty-seventhrespondent’s Counsel contends that the earliest registration of this landin the Uduwaragoda village should be the decisive factor ; that thatregistration occurred in 1887 in folio C 55/17 and that as his action hasbeen registered in a folio connected with C 55/17, it should prevail overthe appellant’s action. I would make two observations on this conten-tion.- First, that this position^ was taken up at a late stage. Thethirty-seventh defendant himself at first treated the folio C 2/197 of 1864as the right folio and connected himself with it. But he found that theappellants had forestalled him in this move and he, then, seized upon thispoint of two different villages Kahawe and Uduwaragoda and connectedhimself with folio C 55/17. It is possible that if the matter is investigatedfurther it may be found that C 55/17 is itself connected with C 2/197.The second observation I would make is that it is more than probablethat in 1864 Kahawe village included the hamlet of Uduwaragoda whichacquired a separate identity in the Registrar-General’s books only at alater date. But, to make assurance doubly sure in the matter of theregistration of the lis, I would direct the District Judge to require theplaintiffs-appellants to connect their registration with C 55/17, if, in factC 55/17 is not already connected with C 2/197.
My view is that the case that came first into Court must be givenpreference. I am not laying that down as an invariable rule. There areinstances of later cases being allowed to proceed on the ground that theplaintiff in the earlier case was dilatory, or that his action was not properlyconstituted. See Silva v. Silva.' But neither of those statements canbe made of the plaintiffs-appellants’ case. I, therefore, see no reasonwhy the general rule should not be followed. I refuse to be influenced bythe battle of Wits which appears to have been waged here to the end thatthe first case shall be the last, nor will I follow the thirty-seventh defend-ant’s Counsel behind the scenes, as we were invited to do, in order toascertain who took the first steps, who were in the field first collectingmaterials to prepare the case.
I do not think it has the slightest bearing on this question, that thethirty-seventh defendant is the largest shareholder of the land. I makethis observation because it was argued that for that reason, thethirty-seventh defendant’s action should be preferred.
I would, therefore, set aside the order of the District Judge and directthat this case should proceed without further delay. It is deplorablethat a prospective bill of costs should have held up this partition fornearly three years already. These tactics must be discouraged. Therewill be no order as to costs either here or below.
Fernando A.J.—I agree.
■ 37 -V. £.. B. 433.
Set aside.