SINNATAMBY v. NALLATAMBY

033-NLR-NLR-V-07-SINNATAMBY-v.-NALLATAMBY.pdf


( 139 )
SINNATAMBY v. NALLATAMBY.
1903.
D. C., Colombo, 13,943.
September 14.
Judgment—Consent decree entered by mistake—rSuit for partition of landaccording to consent decree in previous case—Prayer' of defendant inreconvention to cancel such decree—Propriety of such prayer.
Where a defendant prayed in reconvention that a decree which hadbeen duly entered by consent against him by a District Court in aprevious suit, and upon which the plaintiff based his present action forpartition of a land against the defendant, be cancelled on the groundthat his consent had been given by mistake,—
Held, that such prayer was in the nature of a claim of restitutio inintegrum, and that that remedy could not be sought in a separate action,but must be obtained in the same action by application on due materialsto the Supreme Court for an order to the Judge of the lower Courtto investigate the matter.
HIS was a suit for the partition of two lands. The plaintiff
X alleged himself to be the owner of one-half thereof, and thedefendant of the other half, by virtue of a judgment pronouncedby the District Court of Colombo in case No. 13,430, which hepleaded as res judicata.
The defendant answered that the judgment in case No. 13,430was entered by mistake and should be cancelled. He claimedthe whole of the two lands *and prayed that the judgment pleadedas res judicata be cancelled.
On the day the issues were discussed the learned District Ju(jge(Mr. D. F. Browne) held that the defendant’s prayer in the presentcase for a cancellation of that judgment could not be entertainedby him in the present action, and that £he prdper procedure to befollowed by them was to apply to the Supreme Court on propermaterials in the same case in which that judgment was deliveredto investigate and repdrt on the allegation of mistake.
T
13
( 140 )
1903. The defendant appealed. The case was argued on 24thSeptember 14. August, 1903, before the Full Bench, consisting of Wendt, J.rMiddleton, J., and Grenier, A..J.
Walter Pereira, for appellant.—In Pereira v. Ehanaike (3 N. L.B. 21) it was held that a judgment obtained by fraud or passedunder a mistake might be set aside either by a regular actionor possibly by application by way of summary procedure. Noprovision occurs in the Procedure Code enabling a party to seekthe remedy of restitutio in integrum. In Holland, the SupremeGovernment only granted restitution, and this power has not beenvested in the Supreme Court of this Island or any lower Court byany Ordinance. The Supreme Court of the Island has the powerof revision, but that is different from the remedy of restitutio inintegrum which was granted by the Roman-Dutch Law in casesof obligations entered into through fear or duress, or where therewas mold fide8 or minority or the like (2 Kot.ze, pp. 342-347 and428-431). It has always been the practice in Ceylon to instituteregular actions in all such cases. The prayer of the defendant inreconvention to set aside the judgment pleaded as res judicata isin the nature of a regular action, and the District Judge shouldnot have disallowed it.' The ruling in Goonaratne v. DingiriBanda (4 N. L. B. 249) is not well founded.
Sampayo, for plaintiff, respondent.
Cur. adv. vult.
14th September, 1903. Wendt, J.— *
This is a partition action, in which plaintiff claims one-half ofthe common property and assigns the remaining half to thefirst and second defendants. The third defendant, a daughter offirst defendant, has died pending this appeal. The second defendantis her husband. Plaintiff’s allotment of shares is based upon aconsent decree passed on 22nd June, 1900, in an action (No. 13,430)brought by him against the same defendants for a declaration oftitle. The land was in 1856 devised by the joint last will1 of theoriginal owners to one Francina to be possessed by her for life,subject «to the condition that(after her death it should revert toand form part of the estate of the testator’s nominated heirs, viz.,four children of the testator-husband. Francina accordinglypossessed the land,' and 'died in 1880. Three of the nominatedheirs had predeceased her, intestate, and „ one only of them (viz.,Bamasami) left issue. This issue was a daughter, Neelatchy, whodied in 1886, and under whom pla'intiff claims. The first defendant
( 141 )
is the sole survivor of the four nominated heirs, and as such he 1003.claimed to have become the owner of the entire properly on the September 14.ground that Neelatchy, by reason of her father predeceasing Wendt, J.Franoina, took no interest at all. This was the question raised inthe actionNo. 13,480. Bytheconsentjudgment,however,
plaintiff wasdeclared ownerofonehalf andthe first and second
defendants of the other half, the second defendant being donee ofone-fourth from first defendant.
In their answer to the present action the defendants pray inreconvention that the consent decree be cancelled on the groundthat “ the defendants did not consent to the said decree beingentered, nor did they instruct, authorize, or in any way empowertheir Proctor to do so, and the defendants say that the entry ofthe said decree is due to mistake, and the defendants are entitledto have thesame cancelled.”Itappearedat the trialthat the
defendants,having changedtheirProctor,moved theDistrict
Court by another Proctor on 21st August, 1)900, upon the affidavitsof the defendants, for a notice calling upon plaintiff to show causewhy the consent decree should not be set aside, but their Proctorwithdrew his motion, and the Court recorded that it was as wellhe had done so as the statements in first defendant’s affidavit wereutterly untrue, inasmuch as he was present in Court every day thecase came up, and everything done was explained to him anddiscussed with him in open Court.
One of the issues agreed upon in the present action was whetherthe defendants could have that decree set aside in this case.Defendants' Counsel was unable to say on whose part the allegedmistake was, but stated that his clients had not consented to thejudgment.
The learned District Judge held that the prayer in reconventionamounted to a claim of restitutio in integrum, and that that remedycould not be sought in a separate action, but must be obtained inthe same action by application on due materials to the SupremeCourt for an order to the Judge of the lower Court to investigatethe matter—as laid down* in Gooneratne v. Dingiri Banda(1 Tamb. 29; 4 N. 'L. R. 249). The question reserved for the. FullCourt is whether this ruling is right, or whether it is open to thedefendants to attack the alleged consent decree, by an ordinaryaction, and therefore by a claim in reconvention when sued upon,that decree.
Appellants’ Counsel has questioned the soundness of the, deci-sion in Gooneratne, v. Dingiri Banda, and has sought to re-openthe whole question. Ponceding < that tfie Sovereign could evennow grant restitutio in integrum, he has denied that this Court
( 142 )
1903. stands in the place of the “ Court of Holland, ” to which theSeptember 14. Sovereign’s powers had been specially delegated. He has cited^Vendt, J. Van Leeuwen's description of the Court of Holland, and hisdefinition of the scope of the remedy of restitution (2 Kotze, pp.423-431, 342-347), and has pointed out that in more than one ofthe cases enumerated as falling within the scope of restitutio,the right to claim relief by action is now recognized in Ceylon.But I think that the rule laid down in the case I have alreadymentioned is a most wholesome one, and ought to be adhered to.This Court there pointed out that some uncertainty had previouslyexisted as to the proper procedure to be followed in cases wherea party desired to be relieved of a decree which had beenimproperly obtained against him, and it proceeded to consider thequestion with a view to settling the point. It was very fullyargued, and having been a Counsel in the case I am able to saythat not only were the opinions of Voet and Groenewegen cited, but ■the several local authorities in Marshall’s Judgments, 2 S. G. G.
J03, 6 S. G. C. 102, 3 C. L. R. 13, 3 N. L. R. 21 were discussed, aswell as the English cases. The Court consisting of Bonser, C.-J., andWithers, J., la§l it down that the party complaining of the decreeshould in the first instance apply ex parte on proper materials tothe Supreme Court, which if satisfied that a primd facie case wasmade out would direct the Court which passed the decree to hearthe application and review its own decision, confirming it orsetting it aside, according to the proof laid before it. If the decree-holder have already taken steps to enforce the decree, doubtless theCourt so appointed would in a proper case stay its hand pendingthe investigation. Considering how often in our Courts litigantswho have rushed into Court upon the impulse of some grievanceadjust their differences before the trial day or arrive at a friendlycompromise, and consent to a decree on terms agreed upon, Ithink there would be a manifest danger in enabling a party whoshortly repents of his agreement to begin an action to have thedecree set aside on the ground that he was deceived into consent-ing, or consented under a mistake, ^without any guarantee thatthere is a reasonable ground for the complaint.
J think the appeal should bec dismissed with costs.
Middleton, -J.—
I have read my brother Wendt’s judgment, and I take it from himthat in the case of Goonerattie if. Dingiri Banda {4 N. L. R. 249)the question as to the jurisdiction of this Cpurt to grant restitutioin integrum was thoroughly gone into on the authorities, and that
( 143 )
Chief Justice Bonser and Mr. Justice Withers were satisfied that 1003.the Supreme Court possessed it. It is clear to my mind by refer- September 14.ence to Van Leeuwen, pp. 342, 343, and 431, that the Supreme Midwbton,Court of Holland had the power, and this Court, succeeding to the J-jurisdiction exercised by the Supreme Council of Justice in Ceylon,with a mandate under the Proclamation of 23rd September, 1790,to administer justice “ according to the laws and institutions thatsubsisted under the ancient Government of the United Provincessubject to certain deviations ” which do not apply here, presuma-bly has the same.
I think, therefore, that this Court has jurisdiction on applicationby petition duly supported by affidavit to grant an order upon theJudge of first instance in certain cases of alleged error uponjudgment, to inquire into and to ascertain, and then to correct ifnecessary and right so to do, by restitutio in integrum.
If such error as is alleged here was discovered within the appeal-able time, I see no reason why the matter should not be raised uponappeal, if the allegation were supported by evidence on affidavit.
It has been held that in cases of mere mistake in a decree the
i
Court has power to rectify them of its own motion (Marshall,p. 244).. This I presume refers to 'mere verbal or arithmeticalerrors, and not to error of the character alleged here, which affectsthe very existence of the judgment. The point particularlyemphasized in this case by Counsel for the appellant appeared tome to be that, whether or not he had a remedy by way of restitutioin integrum, or on appeal, he had an undoubted right of aetipn asagainst the plaintiff in this case, and so could claim as he has donein reconvention. Now, this is a partition action or proceedingsunder an Ordinance specifically enabling such proceedings to betaken, and gives the Court power after examining the titles of theclaimants to decree partition or sale, and nothing else.
In the case before us the defendant does more than set up aconflicting title: he is obliged to admit plaintiff has the title to the'share he asserts, which can only be given him by the decree of acompetent Court.
It seems to me that the Court, acting under the Partition Ordi-nance, would have no power to decree as sought by the defendant.
In any case, in my opinion such a claim in reconvention ,in parti-tion proceedings ought not to be permitted.,*
Again, has he a cause of action at all in' the matter against the• plaintiff ? It seems to me that he has not. *
The defendant must a’dmit that, the decree he complains of wasentered by the Court, with the .consent* of his own Proctor. The.plaintiff was not to blame for it, nor was it a mistake of the Court .
( 144 )
1003. The mistake, if any, was the mistake of the defendant’s ownSeptember 14. agent. It is difficult to see that any injuria was committed by theMiddhston, plaintiff against the defendant which would render him liable to
J.an action at the suit of the defendant.
In the case of fraud it would be entirely different. If plaintiffhad fraudulently induced or misled the Court into a decree damag-ing to the defendant, it appears to me clear that an injuria wouldhave been committed against the defendant giving him clearcause of action against the plaintiff.
This, I think, must be the principle underlying the English caseswhich enable, if not enjoin (Davenport v. Stafford, 8 Beau. 503),an action to set aside judgments obtained by fraud.
For the above reasons I think the defendant is not entitled inthis case to bring an action against the plaintiff, and a fortiorinot to claim in reconvention in partition proceedings. I conceivethat in cases where judgments have been pronounced by mistakeand decrees entered thereon (except perhaps such mistakes as Ihave already referred to), or where it is. alleged that freshevidence has cropped up since judgment which was unknown tothe parties relying on it before judgment, or in case of frauddiscovered within a short time of judgment and before a changehas taken place in the position of parties, the remedy may be byway of the proceedings indicated by me for restitutio in integrum.
If, however, fraud is discovered after a lapse of time, then theproper remedy would be by action'.
I think, therefore, this appeal must be dismissed with costs.
Grenier, A.J.—
I agree with the rest of the Court that this appeal must bedismissed with costs. I have had the advantage of reading thejudgments of my brothers, and there is little that I can add towhat they have held in regard to the remedy of restitution as it isunderstood in the Roman-Dutch Law and as it has been recog-nized by our Courts. It is a very wfiolesome rule, and one thathas been consistently followed, that the Supreme Court should befirst approached upon proper c materials and a prirnd facie casemade out beforec any reference is made to the lower Court whichpassed the decree complained of. To allow a party to bring aseparate action in every c^se where he considers that he has beenaggrieved by a decree being entered against him which, in hisopinion, ought not to have been entered against him, would be toopen a door to endless litigationt and suspend for an indefiniteperiod the operation of valid decrees. In the present case I
( 145 )
understand the defendant’s principal grievance to be that thedecree against him was entered by mistake. He has asked inreconvention that the decree be cancelled on certain grounds, andin view of the fact that the cancellation was prayed for in theclaim in reconvention, there are necessarily no materials support-ing the allegations in the answer. In the event, therefore, of thelower Court entertaining a claim in reconvention of this character,without the safeguard of a reference to it by this Court, it willpractically have to sit in judgment upon its own proceedings inthe previous case, although those proceedings, as in this case, maybe ex facie quite regular and the decree good and effectual in law.The policy of the Roman Dutch Law, as I have always understoodit, never encouraged a procedure of this kind, and that is the reasonwhy the remedy known as restitutio in integrum was madeavailable to a litigant in certain circumstances where the ordinaryCourts were powerless to relieve. The Supreme Court of thisColony, by virtue of its powers and constitution, is exclusivelyentitled to exercise, and has exercised, the right of ordering aninquiry in appropriate cases aud upon sufficient materials; andit is too late in the day now, especially in view of the distinctpronouncement by this Court composed of Chief Justice Bonserand Justice Withers in Gooneratne v. Dingiri Banda (4 N. L. B.2sf9), to raise any doubts as to the soundness of that decision andas to the power of this Court to grant the relief in question.
1903.
September 14.
Gbenier.
A.J.