VELUN SINGHO AND ANOTHER v. SUPPIAH AND OTHERS

041-SLLR-SLLR-2007-V-1-VELUN-SINGHO-AND-ANOTHER-v.-SUPPIAH-AND-OTHERS.pdf


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VELUN SINGHO AND ANOTHERv
SUPPIAH AND OTHERS
COURT OF APPEALEKANAYAKE, J.
SARATH DE ABREW, J.CA 1200/89
DC MT. LAVINIA 19/93 PDECEMBER 11,2002SEPTEMBER 12, 2006OCTOBER 13, 2006
Partition Law 21 of 1977 amended by Act 17 of 1997 – Section 22, section48(3), section 49, Fraud and collusion, alleged by persons who were notparties – Revisionary jurisdiction invoked ? – Finality of a partition decree -Could it be assailed? Duty to investigate title – Laches – Exceptionalcircumstances – Restitutio in Integrum – Is it available only to a party?Severability. – Evidence Ordinance – Section 44.
The petitioners who were not parties sought to revise the judgment,interlocutory decree and the final decree and also sought Restitutio in integrum- on the basis of fraud and collusion on the part of the respondents, undersection 48(3) of the Partition Law.
Held:
The powers of revision and Restitutio in integrum are not affected by theprovisions of section 48(3) Partition Law. When a partition decree obtainedby fraud or collusion has occasioned a failure of justice, the SuperiorCourts are empowered to set aside and strike off such impugned decreein achieving the objective of due administration of justice and andcorrection of errors in order to avert a miscarriage of justice.
Per Sarath de Abrew, J.
"The concept of finality which was unknown to the Roman Dutch Law, hasbeen incorporated into our law borrowed from the English Law drawinginspiration from the English Statute of 1677, however utilizing the proviso tosection 48(3) a long line of authorities of the Supreme Court and the Court of
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Appeal acting in revision and Restitutto-in-integrum has tendered to erode thefinality of a partition decree, in order to avert a failure of justice for good andvalid reasons".
Revisionary jurisdiction can be invoked even by a person who was not aparty to the case in the original Court provided he is an aggrieved personbut relief by way of Restitutio in integrum cannot be granted if the petitionerhas not been a party to the action.
Per Sarath de Abrew, J.
'The petitioners are placed in the jeopardy of forfeiture of their right title andinterest in the land in suit due to the impugned partition decree and thereforequalify as aggrieved persons, even though they had no opportunity toparticipate in the original court proceedings, therefore notwithstanding therelief claimed by way of Restitutio in integrum, the relief by way of revisiondoes lie to the petitioners".
On a consideration of the totality of the repelling circumstances, thebalance of proof title in favour of the petitioners in that on a strong primafacie case emerges leading to the conclusion that the respondents actingin collusion among family members have contrived to obtain partition titleto the corpus; when the deeds establish the fact that the legal ownershipof the land is in the petitioner.
The trial Judge has also failed to discharge his paramount duty toinvestigate title.
Although the revision application has been filed around 3 years and 7months later, the circumstances which led to this delay have beenexplained in the pleadings, therefore the facts and circumstances do notpreclude the petitioners' right to relief by way of revision due to lacheshaving regard to the exceptional circumstances that have surfaced whichhas occasioned a failure of justice.
Per Sarath de Abrew, J.
"A separate case for damages under section 49 is now not possible asmore than 5 years have elapsed since the entering of the final decree, in viewof section 22 of the Amendment 17 of 1997, therefore injustice will resultunless the extra ordinary power of revision is exercised to avoid miscarriageof justice.
APPLICATION in revision to set aside the final decree in a partition actionentered in the District Court of Mt. Lavinia.
Cases referred to:
Soysa v Silva – 2000 – 2 Sri LR 23S
1a. Piyasena Perera v Margaret Perera -1984 -1 Sri LR 57.
Fernando v Marshall Appu – (1923) – 23 NLR 370.
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3. Piyaseeli v Mendis and others – 2003 – 3 Sri LR 273.
4.0. Wanigabahu v R. Mahindapala and another- CA 1812/2001 – CAM of14.12.2005.
5. Kannangara v Silva – 35 NLR 1.
O.Somawathie v Madawala – 1983 – 2 Sri LR 15.
Ratnawalie Hemaratnev Wadugiyapillai and another – CA 1340/90 (Rev._- CAM of 26.3.92.
Mariam Beebee v Seyed Mohammed and others – 1965 – 68 NLR 36.d.Dissanayake v Elsinahamy- (1978-79) – 2 Sri LR 118.
Kularatne v Ariyasena – 2001 – 4 Sri LR 118
Galagoda v Mohideen – (1987) 40 NLR 92.
Sumanawathie and others v Andreas and others – 2003 – 3 Sri LR 324.
Gnanapandithan and another v Balanayagam and another – 1998 – 1 SriLR 391 (S,C,)
Dr. Jayatissa de Costa for 1 st and 2nd petitioners.
Nihal Fernando PC for 1 st. 2nd and 3rd respondents.
May 12,2007.
SARATH DE ABREW, J.
This is an application for revision and/or Restitutio in integrumfiled by the petitioners to set aside the judgment, InterlocutoryDecree and Final Decree of the learned District Judge of Mt.Lavinia in a partition action filed by the Plaintiff-Respondent whosought to apportion the 10.4 perch corpus equally between himselfand the 1 st defendant-respondent subject to the life interest of the2nd defendant-respondent. The petitioners, who were not parties tothis partition action, have sought this relief on the basis of fraud andcollusion on the part of the respondents referred to above undersection 48(3) of the Partition Law. The 2nd defendant-respondenthas been substituted in place of the now deceased 1st defendant-respondent. The learned District Judge, having recorded theevidence of the plaintiff-respondent, had made order on 09.08.1994apportioning 1/2 share each of the land in suit equally between theplaintiff and the defendant and accordingly Interlocutory Decreeand Final Decree had been entered respectively on 09.08.1994and 12.02.1996. Being aggrieved of the above impugned orders,the petitioners have invoked the revisionary jurisdiction of thisCourt.
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The petitioners have filed their petition on 08.12.1999 withdocuments marked A-Z and AA and in response to the objectionsfiled by the respondents on 07.05.2000, have filed their counterobjections on 20.06.2000. Both parties have filed two sets of writtensubmissions in 2002 and 2006.
The salient facts relating to this dispute in briefly set out asfollows. According to the 1 st petitioner he had become the owner ofthe land called Kandawalawatte Lot 17B, in extent 10.4 perches,situated at Jaya Mawatha, Ratmalana by virtue of Deed No. 2160dated 12.09.1984, the property described in the schedule to thepetition and the corpus of the partition action in question. The 1 stpetitioner had transferred 6 perches of the aforesaid land to oneW.A. De Silva by Deed No. 994 of 04.03.1997. The said W.A DeSilva had transferred this 06 perches to the 2nd petitioner by DeedNo. 329 of 01.10.1998. The contention of the petitioners was thatthe (now deceased) 1 st defendant-respondent was occupying thesaid land with the leave and licence of the petitioners' predecessorin title, and continued to occupy the same with the permission ofthe 1st petitioner having accepted his title once the 1st petitionerbecame the owner. The 1st petitioner used to visit the landperiodically and on one such visit on 17.08.98, the 1st petitionerhad observed a fence erected by the 1st defendant-respondentobstructing free movement and entry to the land. As the 1stdefendant-respondent refused to remove this obstruction, the 1stpetitioner lodged a complaint at the Mt. Lavinia Police Station on
and thereafter filed as 66(1) B application in Mt. LaviniaMagistrate Court on 03.09.98. During the course of this inquiry, thepetitioners contend, they became aware for the first time of thecollusive partition action filed by the respondents where the FinalDecree had been entered on 12.02.96. After the culmination of the66 application on 04.05.99 where the respondents were confirmedin their possession, the petitioners have filed this revisionapplication on 08.12.99 as title holders to the land in suit in order tovindicate their rights by having the partition decree set aside on thebasis of fraud and collusion under section 48(3) of the PartitionLaw.
On the statement of objections filed by the defendants on07.05.2000 they have taken up the position that the 1st defendant-
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respondent came into occupation and possession of the land inquestion on or about 1960, built a permanent structure there, andlived therein continuously and uninterruptedly till their possessionwas disturbed by the 1st petitioner around August 1998. The 1stdefendant-respondent has further denied that he entered the land andcontinued in possession as a licensee under the 1 st petitioner or hispredecessor in title. The contention of the 1 st defendant-respondentwas that he had acquired prescriptive title over the land and gifted onundivided 1/2 share of the corpus by Deed No. 5991 of 29.06.1990 tothe plaintiff-respondent who in turn filed the partition action in DistrictCourt, Mt. Lavinia on 16.06.1993 to equally apportion the undivided1/2 shares between themselves. In answering the averments onparagraph 07 of the petition, the respondents in their statement ofobjections neither specifically deny the allegation of fraud andcollusion raised by the petitioners nor specifically challenge the title tothe land of the 1 st petitioners but has prayed for the dismissal of theapplication and confirmation of the impugned partition decree. It isalso pertinent to observe that in their statement of objections therespondents have chosen not to disclose the deed of declaration No.5880 dated 22.02.1990 given in evidence and marked P1 at the trialin the partition case where the 1st defendant-respondent had got adeed of declaration written in his name. On an examination of theplaint filed in the partition action on 17.06.93 it is also significant tonote that the plaintiff-respondent has taken the precaution not toreveal the degree of relationship among the respondents, whereasthe substitution papers filed of record indicate that the 2nd defendant-respondent (Gurusamy Sinnakka) is the wife of the now deceased 1 stdefendant-respondent (Suppan Suppiah Mukan).
On a perusal of the petition of the petitioners together withdocuments marked A-Z and AA, the counter objections and thewritten submissions tendered to Court, the following contentionsraised by the petitioners arise for consideration andadjudication.
The petitioners are the legitimate holders of legal title to theland in suit.
The 1st defendant-respondent entered the land andcontinued in possession with the leave and licence of thepredecessors in title of the 1 st petitioner and continued in
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occupation with the permission of the petitioners, andtherefore the respondents could not have acquiredprescriptive title.
By suppressing the 1st petitioners title to the land, and bythe promulgation of a self-serving deed of declaration No.5880 and deed of gift No. 5991, the respondents acted infraud and collusion to obtain partition title.
The learned trial judge had totally failed to investigate title.
The conduct of the respondents by making contradictorystatements on different occasions as to the circumstances ofentry into the land and continuation in possession thereofare glaring pointers to the fact that they acted in fraud andcollusion to obtain partition title fraudulently, which hasoccasioned a failure of justice.
The fact that all deeds through which the petitioners claimtitle to the land in suit are duly registered in the volume. FolioM 1280/142 of the Land Registry (document AA), whereasthe purported self serving deeds of the respondents are notso registered.
On the strength of the above contentions, the petitioners haveurged that notwithstanding the finality of the partition decreeenvisaged in section 48 of the Partition Law, this is a fit and propercase for this Court to exercise its wide powers of revision in orderto avoid a miscarriage of justice.
On the other hand, the respondents have raised the followingcontentions in their statement of objections and written submissions.
The deed upon which the 2nd petitioner claims title issubsequent to the entering of the Partition Decree.
The petitioners are both guilty of laches and therefore notentitled to any relief by way of revision.
The petitioners application for restitutio in integrum shouldfail as they were not parties to the original partition actionand relief had not been sought with promptitude.
No evidence of possession of the corpus has been set outby the petitioners and as such failed to set out a prima faciecase for relief.
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Petitioners cannot move in revision as revision will lie only atthe instance of a party to an action.
Vague allegations of fraud is not sufficient to vitiate thefinality attached to a partition decree.
Having perused the entirety of the pleadings, documentation,written submissions and case law authorities submitted by bothparties, I now propose to analyse the same in order to arrive at ajust and fair conclusion in this case. The petitioners in this casehave sought to set aside an interlocutory and final decree ofpartition. The finality of such decrees is embodied in section 48 ofthe Partition Law No. 21 of 1977.
However section 48(31 of the Partition Law reads as follows:
“The interlocutory decree and the final decree of partitionentered in a partition action shall have the final conclusive effectdeclared by section (1) of this section notwithstanding theprovisions of section 44 of the Evidence Ordinance, andaccordingly such provisions shall not apply to such decrees.
The powers of the Supreme Court by way of revision andrestitutio in integrum shall not be affected by the provisions of thissection."
Section 44 of the Evidence Ordinance states as follows:
"Any party to a suit or other proceeding may show that anyjudgment, order or decree which is relevant under sections 40, 41or 42 and which has been proved by the adverse party, wasdelivered by a court not competent to deliver it, or was obtained byfraud or collusion."
However, the proviso to section 48(3) of the Partition Law hasmade it abundantly clear that the superior courts in exercising broadpowers of revision and restitutio in integrum are not inhibited by thisqualification in that, where a partition decree obtained by fraud orcollusion has occasioned a failure of justice, the superior courts areempowered to set aside and strike off such impugned decree inachieving the objective of due administration of justice and correctionof errors in order to avert a miscarriage of justice.
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This sound principle is succinctly stated in Soysa v Siivd1)where it was held that “The power given to Superior Court by wayof revision is wide enough to give it the right to revise any ordermade by the original court. Its object is the due administration ofjustice and correction of errors sometimes committed by the courtitself in order to avoid a miscarriage of justice."
Therefore where it is manifestly clear that the impugned partitiondecree has been obtained by fraud or collusion resulting in a failureof justice, the finality attached to such decree could be assailed bythe exercising of broad revisionary powers, in a fit and proper case.
The concept of finality which was unknown to the Roman-DutchLaw, has been incorporated into our law borrowed from the EnglishLaw, drawing inspiration from the English statute of 1677. However,utilizing the proviso to section 48(3), a long line of authorities of theSupreme Court and the Court of Appeal, acting in revision andrestitutio in integrum, has tended to erode the finality of a partitiondecree, in order to avert a failure of justice, for good and soundreasons, as enumerated below.
The corpus not being sufficiently identified.
(Piyasena Perera v Margret Perera <1a>)
Decree obtained by fraud and collusion.
(Ennis J. in Fernando v Marshall AppuP))
Lack of proper investigation of title.
(Piyaseeli v Mendis and others<3))
Order of trial judge manifestly erroneous.
(D. Wanigabahu v R. Mahindapala and another**4))
Decree entered without trial and without notice to parties.
(Kannangara v Silva**5))
Therefore if is now settled law that the finality of a partitiondecree can be assailed in exceptional circumstances in order toavert a miscarriage of justice (eg. Somawathie v Madawald6>).Having reached this conclusion, it is now left to examine the severalcontentions raised by both parties in this case.
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It is now opportune to consider the contention of theRespondents that the Petitioners cannot succeed as they were notparties to the original partition action.
In Ratnawalie Hemaratnev Wadygiyapillai and anolherP) it hasbeen held that revisionary jurisdiction can be invoked even by aperson who was not party to the case in the original Court providedhe is an aggrieved person.
In the Supreme Court 05 Judge Bench judgment in MariamBeebee v Seyed Mohamed and others<8) Sansoni, J. held that,"when an aggrieved person who may not be party to the action,brings to the notice of court the fact that unless the revisionarypower is exercised, injustice will result, the extraordinary power ofrevision may be exercised in order to avoid a miscarriage ofjustice."
However in Dissanayake v Elisinahamy<9> the Court of Appealhas taken the view that relief by way of restitutio-in-integrum couldnot be granted as the petitioner had not been a party to the action.
The petitioners in this application are placed in the jeopardy offorfeiture of their right, title and interest in the land in suit due to theimpugned partition decree, and therefore qualify as aggrieved partieseven though they had no opportunity to participate in the originalcourt proceedings. Therefore notwithstanding the relief claimed byway of restitutio-in-integrum, on the strength of the authorities citedabove, I am inclined to reject the contention of the respondents thatrelief by way of revision does not lie to the petitioners.
On a consideration of the above authorities, it is abundantlyclear that, even though the petitioners were not parties to theoriginal action, if they were sufficiently aggrieved by the partitiondecree entered by the trial judge which occasioned a failure ofjustice, the petitioners were entitled to claim relief by way ofrevision, provided they satisfy court that the respondents hadobtained the impugned decree by way of fraud and collusion, andthereby inducing the trial judge to enter interlocutory decree withouta proper investigation of title.
I now propose to deal with the contention of the respondentsthat vague allegations of fraud are not sufficient to vitiate the finality
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attached to the impugned partition decree. Paragraph 07 of thepetition of the petitioners raises a definite allegation of fraud andcollusion, supported by other averments in the petition. Paragraph 07states "in the course of the said application, the petitioners for the firsttime came to know that a fraudulent and collusive partition actionbearing No. 19/93/Partition had been filed by Mukkan Suppiah,Suppan Suppiah Mukkan and Gurusamy Sinnakka – the members ofthe same family suppressing and willfully concealing the petitionersownership of the land in question." Rule 04 of the Court of Appeal(Appellate Procedure) Rules of 1990 has provided the respondentsthe opportunity to meet the averments and allegations in the petitionby filing a comprehensive statement of objections. However, on anexamination of the statement of .objections filed by the respondentson 07.05.2000, especially paragraph 07 of the said objections thathad answered the averments in paragraph 07 of the petition, thefollowing matters come to light.
There is no specific denial of the allegation of fraud andcollusion, on which the respondents have chosen to remain
silent.
There is no specific denial of the petitioners allegation that the03 respondents are members of the same family.
There is no special denial of the petitioners allegation that therespondents willfully suppressed the petitioners ownership ofthe land.
There is no specific denial that the petitioners for the first timecame to know of the respondents partition action during thecourse of the section 66 application filed by the petitioners.
If the respondents were truthful and genuine, it is quitequestionable and irrational as to why the respondents chose toremain silent or advert a low profile on crucial issues which theycould have easily vehemently denied in detail, which inescapablygenerates a grave doubt as to the credibility of the respondents.
Furthermore, a perusal of the pleadings and the proceedingsgives a clear insight as to the implied attempt on the part of therespondents to steadfastly hide the fact that they are members of thesame family. Perusal of the plaint filed in the partition action, the
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evidence given in court by the plaintiff-respondent at the trial, otherpleadings in the partition action and the section 66 application, andthe statement of objections filed in this revision applicationsubstantiates this position. The substitution papers filed in this courton the demise of the 1st defendant-respondent indicate that he is thehusband of the 2nd defendant-respondent. Applying the objectivetest of a normal course of conduct of a rational human being, it isdifficult to refrain from arriving at an adverse inference as to why therespondents repeatedly failed to disclose their family relationship, ifnot for an ulterior motive, fearing that collusion will be spotlighted.
One other aspect that springs to the eye is that the respondentsin their statement of objections have not disclosed the deed ofdeclaration No. 5880 of 22.02.90 which has been marked Pi, andgiven in evidence at the partition trial. This declarative deedapparently was the bedrock upon which the 1st defendant-respondent founded his ownership to the land in suit from which hegifted an equal 1/2 share to the plaintiff respondent 04 months laterby deed No. 5991 of 29.06.90, paving the way for the partition actionthat ensued 03 years later. While the latter deed has beenprominently mentioned in paragraph 7(a) of the statement ofobjections of the respondent, the former deed No. 5880 has been leftout. If the 1st defendant-respondent was absolutely convinced abouthis prescriptive title and the validity of the declarative deed No. 5880,it is nothing but reasonable to infer that he would display it in hisstatement of objections as the source of deriving of title, unless in hisown mind he knew it was a self serving instrument which the 1stdefendant-respondent was loath to flout around in adversity.
Last but not the least, when one examines the variouscontradictory statements made by the respondents at differentintervals at different forums as to the circumstances the 1stdefendant-respondent entered the corpus and continued inpossession, one cannot turn a blind eye on the thread of fraud andcollusion weaving through entire transaction. These inconsistentinstances may be enumerated as follows.
Partition plaint 9 (marked B) – obtained ownership by lengthypossession and due to inheritence.
Evidence in partition trial – prescriptive title by lengthypossession and by way of deed of declaration No. 5880.
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Police statement of 19.09.98 (marked U) – entered the landas licensee of original owner one Chettiyar and thereafter filedpartition action and obtained decree.
Petition in the section 66 application (marked N) – purchasedthe land from one Chettiyar.
Statement of objections in the Court of Appeal – lengthypossession and obtained prescriptive title.
It is very pertinent to observe that the 1st defendant-respondenthad volunteered to admit to the Mt. Lavinia police that he entered theland in suit as a licensee of the original owner one Chettiyar andcontinued in occupation in such circumstances that he could nothave acquired prescriptive title.
On the consideration of the totality of the repelling circumstancesillustrated above, the balance of proof tilts in favour of the petitionersin that a strong prima facie case emerges leading to the conclusionthat the respondents acting in collusion among family members havecontrived to obtain partition title to the corpus, whereas examinationof deed Nos. 2160, 994 and 329 produced by the petitionersestablish the fact that legal ownership of the land has devolved onthe 1 st petitioner even before the purported partition action.
Irrespective of the question of fraud and collusion, the petitionershave raised another contention in their written submissions, namelythe failure on the part of the trial judge to properly examine title. Afterthe evidence of the plaintiff-respondent was recorded without acontest, the trial judge in his order of 09.08.94 has stated as follows.
It is quite apparent that learned judge had based his findings onthe admissions made in evidence of the plaintiff-respondent. Therehad been no attempt to examine whether the corpus mentioned inthe schedule to the plaint tallies with the extent and boundaries of theland mentioned in deed No. 5880 and 5991 marked in evidence.There had been no attempt to ascertain whether the above deeds

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are duly registered in the proper Folio No. 1280/142 at the landregistry or whether there are other deeds duly registered in theproper folio pertaining to the same land. In other words the learnedtrial judge had merely acted as a rubber stamp without discharginghis burden under the Partition Law in properly investigating title. Insuch situations, it may be gainsaid, the conduct of the learned trialjudge unknowingly contributes to the perpetrating of a fraud byparties acting in collusion.
In Kularatne v Ariyasend1°) it was held that “The duty of a Judgein a partition action is to ascertain who the actual owners of the landare and it is an imperative duty of the court to fully investigate anddecide on the title of each party to the action on evidence and not onany admissions."
In Galagoda v MohideerP1) it was held that “the Court should notenter a decree in a partition action unless it is perfectly satisfied that thepersons in whose favour it makes the decree are entitled to theproperty."
In Sumanawathie and another v Andreas and otherd12) it hasbeen further held that “On an appeal in a partition action, if it appearsto the Court of Appeal that the investigation of title has been defectiveit should set aside the decree and make an order for properinvestigation."
Further, G.P.S. De Silva, CJ in Gnanapandithan and another vBalanayagam and another held that, “There was a total want ofinvestigation of title. The circumstances were strongly indicative of acollusive action. In the result, there was a miscarriage of justice in thecase, and the appellants were entitled to a revision of the judgmentof the District Judge notwithstanding delay in seeking relief."
On the strength of the above authorities it is evident that the trialjudge failed to discharge his paramount duty to investigate the titleproperly before making his order which has occasioned a failure ofjustice to the detriment of the petitioners. The following matters haveescaped the scrutiny of the trial judge.
Though the plaint in the partition action (marked B) speaks ofthe 1 st defendant-respondent acquiring ownership by way ofinheritance, the learned trial judge had failed to investigatethis aspect.
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The respondents have failed to establish that they were inpossession from 1960 by cogent evidence other than throughan admission on the part of the plaintiff-respondent whilegiving evidence. The respondents have also failed toestablish possession adverse to that of any person holdinglegal title to the land.
Though the respondents claim that they were in possessionfrom 1960, the extract of plan No. 865/1961 of LicensedSurveyor Dias Abeygunawardane had been prepared only on12.02.1980, while the deed of declaration executed only on22.02.1990, and finally the partition action filed only on
16.06.1993.
Therefore for the foregoing reasons and on the strength of theauthorities cited above, I uphold the main contentions raised by thepetitioners in that –
The respondents were party to fraud and collusion inobtaining the impugned partition decree.
The total failure by the trial judge to investigate title vitiates thefinality of the partition decree.
I am also satisfied that the above two ingredients haveoccasioned a failure of justice to the detriment of the petitioners, inwhich event they are entitled to relief by way of revision.
The next question to be examined is whether the petitioners aredisqualified in obtaining this relief due to laches and undue delay. The1st petitioner has obtained legal title to the land in suit by deed No.2160 dated 12.09.84. According to him he has permitted therespondents to continue in occupation and has periodically visitedthe land. He had not observed anything amiss until 17.08.93 whenhe saw a fence erected obstructing his ingress. Thereafter the 1stpetitioner made a complaint at the Mount Lavinia police station andfiled a section 66 application (Case No. 34567) in M.C. Mt. Laviniaforthwith. During the course of this inquiry, the respondents hadproduced the impugned partition decree which the petitioners hadthen become aware of for the first time. The section 66 caseculminated on 04.05.09 and as the order was adverse to thepetitioners, they filed this revision application in this court on
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08.12.99, around 07 months later. The final decree in the D.C. Mt.Lavinia Case No.19/93/P had been entered on 17.04.96. Thereforethe revision application to set aside this decree has been filed around3 years and 07 months later. The circumstances which led to thisdelay are explained in the pleadings submitted by the petitioners.During this period, once they become aware of the actions of therespondents, the petitioners have not displayed inaction over theirrights but have filed a police complaint and a section 66 case andawaited its outcome before invoking the revisionary powers of thiscourt. Therefore the facts and circumstances of this case do notpreclude the petitioners right to relief by way of revision due to lacheshaving regard to the exceptional circumstances that have surfaced inthis case which has occasional a failure of justice.
In this context, it is appropriate to quote from His Lordship formerChief Justice G.P.S. De Silva, CJ in the case of Gnanapandithan vBalanayagam (supra) where he held
"The question whether delay is fatal to an application in revisiondepends on the facts and circumstances of the case. Havingregard to the very special and exceptional circumstances of thecase, the appellants were entitled to the exercise of therevisionary parties of the Court of Appeal."
Therefore for the foregoing reasons, I reject the contention of therespondents with regard to laches and undue delay and hold that thepetitioners are entitled to relief by way of revision.
The petitioners have lost their opportunity to appeal against theimpugned partition decree for no fault of theirs. A separate case fordamages under section 49 of the Partition Law is now not possibleas more than 05 years have elapsed since the entering of the finaldecree, in view of section 22 of Partition (Amendment) Act No. 17 of1997. Therefore injustice will result unless the extraordinary powersof revision are exercised to avoid miscarriage of justice.
Therefore, acting in revision I make order setting aside thejudgment and other proceedings, interlocutory Decree and the FinalDecree in District Court Mt. Lavinia Case No. 19/93 Partition asprayed for in sub-paragraph (1) of the prayer to the petition. I makefurther order directing the learned District Judge of Mount Lavinia tocommence partition proceedings de novo on the plaint filed by the
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respondents while allowing the petitioners too to intervene in theaction and file their statement of claims and thereafter fullyinvestigate title and make an order and enter interlocutory decreeand final decree according to law in compliance with the provisionsof the Partition Law. On a consideration of all the circumstances ofthis case I award costs in sum of Rs. 25,000/- to the petitioners.
Accordingly Application is allowed.
EKANAYAKE, J. – I agree.
Application allowed.
Trial de novo ordered.
Editors Note:
Special leave to appeal No. SC Spl. LA 158/2007 to the Supreme Courtwas refused by the Supreme Court on 6.9.2007.