Suriapperuma v. Gnanawathie Senanayake (Palakidnar. J.J
COURT OF APPEAL
P. R. P. PERERA, j. AND PALAKIDNAR, J.
A. NO. 301/82 (F)
,C. GAMPAHA NO: 20632/L.
FEBRUARY 08. 1989
Servitude of cartway — Inspection — Validity of agreement to abide:-by Judgesorder on inspection — Section 428 of',the Civil Procedure Code — Consentdecree — Appeal.'';
The Court has full power to conduct a local inspection under S. 428 of the CivilProcedure Code: ■ ■. •' 1" >
Where parties agree to abide by the Courts decision after an inspection, there isimplied in it a waiver of all defences taken in the answer.and.a'total acceptance,of the outcome'of the Court's decision after the agreed inspection. '
The judgment and decree then are of consent of the parties and there is no rightof appeal.
Gases referred to:
Krishnan v. Vain/ 66 NLR 66•
Walliamma-v..Selliah 73 NLR 509
: Buckingham, v. 'Daily Ne^s.Ltd,\ 95.6] 2 Q.B-. 534
' Shariff Marikkar ViAbdul Azeez 65 NLR 568f:'5. Ameen v/Appusirigh’d [ 1 91 4] 4 Bai. NC .2.4.
■APPEAL from-judgment of, the District Court of Gampaha
D. R. p''Gdonatillake with D. G. Walpola arid' Miss- Shiranthi ‘de Saram forAppellants. ■''’ ' '''
Varuna Basnayake for Respondents.
Cur. adv. vult.
February 24. 1989
j ■ '' . y..
yThe plaintiff owned a land called! Gorakagahawatte. There, was• a twelve, foot .wide cartway heading touthis. land from the
Sri Lanka Law Reports .
119891 1 Sn L R.
Malwana-Hanwella Road.. The plaintiffs claim ownership of thiscartway by prescriptive user.
The defendants obstructed the use of this cartway on. 28.02,1 977. The plaintiff sued the defendants for the restorationof his right of cartway and damages.
The’trial proceeded on twelve issues. The crucial issue was'issue number four raised thus "Have the plaintiff and hispredecessors in title possessed the cartway, for over ten years byprescriptive user and acquired a prescriptive title to a right ofuser of the said cart road?”
On 12.05.19.82 during the course of the trial the partiesagreed to abide by the decision of the Judge after an inspectionof,the land 'in dispute and signified their consent by signing therecordi The case. was .to be called on 1.06.1982 to. proceed forinspection.
On 08.07.1 982 the learned trial Judge made order stating thatafter the inspection he holds that the plaintiff is entitled tocartway as depicted in plan number 508 of 10.01.1979prepared by surveyor KastuFiratne.
The appeal is from that order. The contention of the appellants'.Counsel was based chiefly on the views expressed by Herat. J. inKrishnan ys. Vairy. ^ In that , case complicated questions ofinheritance were involved but parties, agreed to settle thedisputes after an inspection. Commenting on what transpiredJustice Herat said "It’staggers ou'r imagination as to how thelearped Commissioner was going to settle these questions afteran inspection”. The procedure adopted was set aside mainly ontwo legal grounds that all the parties did not apply for arbitrationand that certain patties did not sign the record. I do not considerthat the'factS in the instant case are in anyway comparable tothe facts in Krishnan vs. Vairy's case.
A Court has full power to conduct a local inspection. "Se'ction?42-8 of'the* Civil Procedure. Code: confers on the. Judge in a Civil‘Case a'Uthdrity to conduct ailoe-al investigation for the purpose of.
CASuriapperuma v. Gnanawathie Senanayake (Palakidnar, J.) ■327
elucidating any matter in *dispute or of ascertaining any othermatters referred to in the section!
Section 428 reads thus:—■
In any acfio.n or proceeding in which ;the Court deems alocal investigation to be.requisite o.r proper for the purposeof elgpidating any matter in dispute or'of ascertaining the. ’market value of any .property,or amount of any mesneprofits or damages of annual net profits and the same ■cannot be conveniently conducted by the Judge in personthe Court may issue a commission to such a person as itthinks fit directing him to make such investigation and to-'report to this Court.
Thus it tis plea;r that parties can inform Court that the onlyevidence in the case would be that adduced'by local inspectionby the Judge.
In Walliamma vs. Se/liah (2) Tennekojon. J, (as he then was)citing an English parallel in order 35 rule 8 Rules of SupremeCourt states that the Judge in a civil case is given the power "to',inspect any place or. thing with respect to which any' questibnarises in the cause of matter."
Lord Denning in- Buckingham vs. Daily News Ltd. (3) said."Everyday practice in these-Courts shows that'where.the matterfor decision is one o'f ordinary common sense, the Judge of fact ,is entitled to form his. own judgment on the real evidence of aview just as much as on the oral evidence of witnesses."
. These views are applicable to section 428 sof the CivilProcedure Code in Sri Lanka as well. The record vshows%at theparties agreed to a Court decision after an inspection. Implied insuch a decision is a.waiver of all defences taken in the answerand a total acceptance of the outcome of the Courts decisionafter the agreed inspection. –
’ Counsel 'for' the Respondent took up a preliminary objection'■that the judgment and-decree was o.ne made of cons.ent by theparties and that there was no right of appeal.
Sri Lanka Law Reports
(1989/ ; Sri L. R.
We are disposed to uphold the validity of this objection. Therecord shows that the agreement was clear and unequivocal, that*4be parties wished that their dispute should be ended by theJudge viewing and deciding whether there was a cartway inexistence as contended-by the plaintiff. The Judge duly inspectedand decided that it was so. it would not be appropriate to conferJudicial blessings on what transpires to be a mere speculativemove by the parties who how choose to resile from such anagreement and wish to appeal from such a decision.
In Shariff Marikkar vs. Abdul Azeez (4) Justice T. S. Fernando■ reviewed a long line of decisions and held that there is nothing inlaw to prevent the parties agreeing to waive a right given to th.emby law. quoting Wood Renton J. in Ameen vs. Appusihgho (5) _he said that where parties agree that the dispute in the case befairly left and be left finally to the decision of the District Judgetheir no appeal would lie. Accordingly we dismiss the appeal with. costs fixed at Rs. 31 5/-
P. R. p. perera, J. — I agree.
Appeal dismissed ' ■