118-NLR-NLR-V-22-SOOTIHAMY–v.-CHARLES-et-al.pdf
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Present : Schneider A. J.
SOOTEEAMY v. CHARLES et aLC. B. Kalutara, 3,686.
Restitutio in integrum—Procedure governed by chapter XXIV. of ike
Civil Procedure Code—Respondent to begin.
Where on an application for restitutio in integrum notice wasissued to the respondent, and he appears he has the right to begin.
The application for restitutio in integrum is by way of summaryprocedure, and is governed by the provisions of chapter XXIV.of the Civil Procedure Code. Upon such an application section 377prescribes the order which should be made. It should be either anorder nisi or an interlocutory order. Section 379 indicates theform of the order and the mode of service.
rpHE facts appear from the judgment.
De Zoysa, in support.
H. V. Perera, contra.
February 14,1921. Schothder A.J.—
In this matter the procedure to be followed in an applicationfor restitutio in integrum arose incidentally by my requiring therespondent to begin. The defendants had made an application forrestitutio, and my brother De Sampayo had ordered notice to issueto the plaintiff. When the matter came up before me to-day, Ithought the plaintiff-respondent, who was represented, should begin.The notice which had issued from this Court had for its caption thenames of the parties and the number and name of the lower Court,and required the plaintiff-respondent to show cause why the appli-cation should not be allowed. The procedure to be followed in anapplication for restitutio in integrum was indicated by WoodRenton J. in the case of Abeyesekere v. Harmanis Appuf Hepointed out that the application should be by petition and affidavitand upon materials necessary for making out a primd facie case forrelief, and should, be, in the first instance, ex parte. If the Courtis satisfied that a primd facie case is made out, notice should issue.If, after hearing both sides,- the Supreme Court is satisfied thatrestitutio should be granted, the case should be remitted for furtherinquiry and adjudication in the Court of first instance..
It seems to me that the language used by Wood Renton J., asalso the reason of the thing, shows that the application for restitutioin integrum is by way of summary procedure, and governed by the
1931.
1 (1911) U N. L. R. 353.
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1921.
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provisions of chapter XXIV. of the Civil Procedure Code (videsections 373-376). Upon such an application section 377 pre-scribes the order which should be made. It should be either anorder nisi or an interlocutory order. Section 379 indicates theform of the order and the mode of service. The caption, I think,should be: “In the matter of chapter XXIV. of the Civil Proce-dure Code, 1889, and, in 'the matter of the application of … .for restitutio in integrumIt should contain the names of thepetitioner and the respondent and the number and name of theCourt of first instance. It should also contain the particulars setout in section 379. The procedure thereafter should be as laiddown in sections 382-388.
I regarded the notice issued in this case as an interlocutory order,and requested the respondent’s counsel to begin.
In regard to the application itself, I do not think that there is acase to be remitted for further inquiry and adjudication in theCourt of first instance. The land in dispute is a small allotment ofland, having on its west land admittedly belonging to the petitioners,and on its east land admittedly belonging to the respondent. Bothparties claimed it by prescriptive possession. The issue was framed,the trial proceeded, and the judgment was based upon the footingthat either party’s claim was by right of possession. The presentapplication is made on the ground that the respondent (plaintiff)had title to the land on the west under a Crown grant, and thatif that grant had been produced, that fact would have been proved,and that, therefore, the Commissioner would not have believedthe evidence of the plaintiff’s possession. I do not think so. TheCommissioner has decided the issue upon the weight of the oralevidence.
I therefore dismiss the application, with costs.
Application refused.
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