041-SLLR-SLLR-1995-2-WICKREMARATNE-V.-SAMARAWICKREMA-AND-OTHERS.pdf
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WICKREMARATNE
V.
SAMARAWICKREMA AND OTHERS
COURT OF APPEAL.
S. N. SILVA P/CA J„
R. B. RANARAJA, J.
CAL.A. NO. 16/73.
D.C. GALLE 3634/PJUNE 03 AND 17.1994.
Partition law 21 of 1977 – S. 48(4) (a) – 30 day Time-Limit – interpretation – Court- Registry – S. 27,27(2), S.30, S. 31, S. 32 – Settled Law.
The question that arose for consideration relates to the interpretation of the wordsin S. 48(4) (a) which limit the time within which a party to a partition action, whodid not appear at the trial and whose rights in the corpus have been extinguishedby the Interlocutory Decree may apply for Special Leave to establish his rights.
The Commissioner executed the commission well in advance and the papersreturned by him were received in the Registry and date stamped 15.10.90. Thereturnable date fixed by court was 10.1.91.
The District Court computed the 30 day period stipulated in S. 48(4) (a) from thereturnable date.
Held:
‘Court' will mean the place of public sitting, where the Judge or judgesconduct the hearing of any matter before it. The word ‘Court’ is one of general useand may acquire distinct meaning in the context in which it appears.
It would be misleading and unreasonable to consider; that receipt of papersanywhere in court is receipt by “the Court” in the particular usage of these wordsin the section; especially where the date of such receipt is the commencement ofa period of Time Bar imposed by that provision itself.
In statutory interpretation there is a presumption that the legislature did notintend what is inconvenient or unreasonable. The rule is that the constructionmost agreeable to justice and reason should be given.
Per Silva, J.
“The provisions of the Partition Law demonstrate that the issuing of acommission for the final survey and fixing the returnable date are not mereadministrative steps but events related to the judicial activity of the Courtitself at its public sittings."
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Wickremaratne v. Samarawickrema and Others (S. N. Silva, J.)
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Notice of the returnable date is required to be given to the parties so thatthey may appraise themselves of the contents of the Surveyor’s return andobject to it if necessary or resort to the special procedure laid down inS. 48(4).
Thus the receipt of the return by “the Court" as referred to in S. 48(4) (a)must necessarily be related to fixing of the returnable date “in open court,”as required by S. 27. The word “Court" should be construed restrictively tomean only the court at its public sitting and cannot be extended to coverthe Registry and its administrative work.
Per Silva, J.
“The basic rule of interpretation is that the legislative objective should beadvanced and that the provisions be interpreted in keeping with thepurpose of the legislature, Interpretation should not have the effect ofdefeating the objective of the legislature and of detracting from itspurpose.”
Thus the period of 30 days has to be computed after the date the return ofthe Surveyor is received in open court on a returnable date that had beenfixed by court.
AN APPLICATION for Leave to Appeal on which leave has been granted.
Cases referred to:
Perera v. Perera- 1978-79-2SLR 191
Not followed.
Gartise v /RC(1968) A.C. p 553 at P. 612.
Fry v. IRC (1959) Ch. D. P. 86 at P. 105.
Rohan Sahabandu for 1A Defendant-Appellant.
D. R. P. Gunetillake for 2A & 26th Defendants-Respondents.
Cur. adv. vult.
July 01,1994.
S. N. SILVA, J.
This is an application for leave to appeal by the 1A Defendant-Appellant on which leave has been granted. The Appellant is seekingto set aside the order of 13.1.1993. By that order learned DistrictJudge allowed the application made under Section 48(4) (a) of thePartition Law by 2A, 8A, 14A and 26A Defendants and set aside theinterlocutory decree that had been entered in the case.
The trial commenced in the case in 1988 on 32 points of contest.When the trial resumed on 20.3.1990 only the Plaintiff, the Appellant
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and 4 other Defendants were present and represented by counsel.On that day disputes amongst those present were adjusted. ThePlaintiff and the 64th Defendant gave evidence. Judgment wasentered on this evidence giving shares only to the Plaintiff, thepetitioner and the 64th Defendant. Interlocutory decree was enteredfrom which there was no appeal. The Commission for the final surveyto partition the land was issued on 21.8.1990 and it was returnable on10.1.1991.
8A, 14A and 26A Defendants were parties to the action who filedstatements of claim but were absent on the date of trial. They werenot allotted shares in the interlocutory decree. They filed petition andaffidavit on 16.11.1990 in terms of Section 48(4) (A) of the PartitionLaw to excuse their failure to appear at the trial held on 20.3.1990. 2ADefendant filed similar papers on 1.12.1990. Learned Judge has inhis order dealt with the grounds urged by these Defendants toexcuse their absence. For reasons stated, he has upheld thesegrounds and set aside the interlocutory decree.
Counsel for the Appellant has not sought to canvass the findingsof fact made by the District Judge. He relies only on the ground thatthe applications by the Defendant’s have not been made within thetime provided for in section 48(4) (A).
The only question that arises for consideration in this appealrelates to the interpretation of the words of section 48(4) (a) whichlimit the time within which a party to a partition action, who did notappear at the trial and whose rights in the corpus have beenextinguished or prejudiced by the interlocutory decree, may apply forspecial leave to establish his rights. The section provides that suchparty;
"may at any time, not later than thirty days after the date onwhich the return of the surveyor under section 32 or the return ofthe person responsible for the sale under section 42, as thecase may be, is received by the court, apply to the court forspecial leave to establish the right, title or interest of such partyto or in the said land notwithstanding the interlocutory decreealready entered.”
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As noted above, the returnable date given by court was 10.1.1991.However the Commissioner executed the commission well inadvance and the papers returned by him were received in theRegistry and date stamped on 15.10.1990. If that is taken as the dateon which the return of the surveyor "is received by the court”, thepapers filed by 8A, 14A and 26A Defendants would be one day outof time and the papers filed by 2A defendant would be well out oftime. On the other hand, if the date on which the papers werereceived in open court is taken as the date on which the return of thesurveyor “is received by the court”, the applications of all Defendantswould be within time. Learned District Judge took the latter view andrejected the objection raised on time bar, by the Appellant. Heexpressed the view that the date on which the return is received inthe Registry, would not be known to the parties and as such it wouldbe unreasonable to take that date as the commencement of theperiod of time within which an application for special leave should bemade.
Counsel for the Appellant relies on the judgment of a bench of twojudges of this court in the case of Perera v. Perera m in support of thesubmission that the date the return is received in the Registry shouldbe taken as the date the return is received by the court. On that basisit was submitted that the applications of the Defendants should havebeen rejected in limine. Counsel for the Respondents supported thereasons given by the District Judge and submitted that, thatinterpretation is proper and reasonable.
The case of Perera v. Perera (supra) presents facts that are similarto the instant case in that the return appears to have been received inthe Registry well before the returnable date. The District Courtrefused the application for special leave made in terms of section48(4) (a) on the sole ground that it was time barred, computing theperiod of 30 days from the date of receipt of the return in the Registryand not the returnable date in court. This court refused an applicationin revision filed from that order. Atukorale, J. in his judgment cited thewords of Section 48(4) (a) referred above and observed as follows:
“These words make it imperative that the application should be
made to court not later than the prescribed period of thirty days.
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In the present case it is quite clear that the return of thesurveyor under section 32 was received by court on 20.9.1978.The petitioner had therefore, if he wished to avail himself of therelief provided by section 48(4) (a), to apply to court not laterthan thirty days after 20.9.1978. He filed the application on15.11.1978 which was clearly beyond the period prescribed. Inview of the clear and plain meaning of the words used in thesubsection, I cannot agree with the submission of learnedcounsel for the petitioner that the thirty days must be computedfrom 1.11.1978, namely the date fixed by court for the return ofthe commission. On a consideration of sections 27 and 28 ofthe said Law together with the form prescribed in the SecondSchedule thereto, it is clear that the surveyor wascommissioned by court to make his return on or before
11.1978. There was thus nothing to preclude the surveyorfrom making his return to court on any day prior to 1.11.1978.Hence the application of the petitioner was not one that thecourt could have entertained as it was out of time.” (p. 193)
Foregoing is the only passage in the judgment which relates to thematter of interpretation of the particular provision. It appears that theattention of Their Lordships who heard that case has not been drawnto the distinction between the receipt of the return in the Registry andthe receipt of the return in open Court on the returnable date.Furthermore, with due respect, it has to be noted, that the matterssuch as the difficulties that the parties would be confronted with byadopting the first stated meaning has not been considered. Furtherthe question whether the latter meaning is warranted by reading theprovision in its proper context, the scheme of the law, the otherrelevant provisions and the objective of the legislature, has not beenconsidered. The decision appears to have been made on the basisthat the provision does not present a question of interpretation andthat a literal construction could be given by reading the words in thesection itself. In these circumstances, we were not inclined to takethe decision in the case of Perera v. Perera (supra), as “settled law”as contended for by counsel for the appellant and counsel wereinvited to make submissions, fully, on the matter of interpretation.
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The submission of Learned counsel for the appellant is that in itsordinary usage the word “Court” includes the Registry of a particularCourt and that receipt in the Registry should be construed as receiptby Court. As a general proposition, there may be merit in thissubmission. Pleadings, actions and other papers are filed in theRegistry and it is indeed reasonable to take the date of tenderingthose documents to the Registry, as the date they are filed in Court.On the other hand the word “Court” will mean the place of publicsitting, where the judge or judges (as constituting the court) conductthe hearing of any matter before it. Thus it is seen that the word“Court” is one of general use and may acquire distinct meanings inthe context in which it appears. It would be misleading andunreasonable to consider that receipt of papers anywhere in Court,(used in its wider sense) is receipt by the Court”, in the particularusage of or these words in the section. Especially so, where the dateof such receipt is the commencement of a period of time barimposed by that provision itself. Maxwell (The Interpretation ofStatutes 12th Edition page 76) has stated thus as to the treatment ofgeneral words appearing in a statute:
"… Whenever a statute or document is to be construed it mustbe construed not according to the mere ordinary generalmeaning of the words, but according to the ordinary meaning ofthe words as applied to the subject-matter with regard to whichthey are used.”
In Gartise v. I.R. CP Lord Reid observed as follows:
“If the language is capable of more than one interpretation, weought to discard the more natural meaning if it leads to anunreasonable result, and adopt that interpretation which leadsto a reasonably practicable result.”
In Fry v. I.R.C.(3) Romer L. J. observed as follows:
“The court … when faced with two possible constructions oflegislative language, is entitled to look to the results of adoptingeach of the alternatives respectively in its quest for the trueintention of Parliament."
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In statutory interpretation there is a presumption that the Legislaturedid not intend what is inconvenient or unreasonable. The rule is thatthe construction most agreeable to justice and reason should begiven. Maxwell (p 199) has stated this rule of interpretation as follows:
"In determining either the general object of the legislature, orthe meaning of its language in any particular passage, it isobvious that the intention which appears to be most in accordwith convenience, reason, justice and legal principles should, inall cases of doubtful significance, be presumed to be the trueone. "An intention to produce an unreasonable result is not tobe imputed to a statute if there is some other constructionavailable."
I shall now pass to a consideration of the relevant provisions of thePartition Law, in the light of the aforesaid rules of interpretation.Section 48(1) of the Partition Law attributes finality to an interlocutoryand final decree entered in a partition action (subject to appeal andreview by this Court in revision or by way of restitutio in integrum).The decree creates new rights to and in relation to the corpus, freefrom all encumbrances other than those stated in the decree itself,notwithstanding any omission or defect of procedure. Any personwhose right to the corpus are extinguished or prejudiced by the newrights thus created by the decree is provided a remedy by way ofdamages by Section 49(1). Section 48(4) was introduced by the Lawof 1977 (following Section 651(3) of the Administration of Justice Law,No. 25 of 1975, there had been no corresponding provision inPartition Act, No. 16 of 1951), giving an opportunity to a party to apartition action, whose rights to the corpus are extinguished orprejudiced by the interlocutory decree to apply for special leave tocure any omission or defect of procedure or default on his part and toestablish his rights. It is significant that this opportunity is affordedonly to a party to the action and the stage for making such anapplication is related to the final survey. It appears that the legislaturerelated the stage of making any such application to the final survey inview of the publicity given to the fact of partition of the corpus at thatsurvey. I advert to in particular to the notifications necessary and thepublicity that should be given in terms of section 30(1), (2), (3) and
of the Partition Law. Thus the legislature not only provided aspecial procedure to a party to the action whose rights areextinguished or prejudiced by an omission or defect of procedure or
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default on his part, to establish his rights but also made that specialprocedure effective by relating it to the final survey.
The provisions of the Partition Law amply demonstrate that theissuing of a commission for the final survey and fixing the returnabledate, are not mere administrative steps but events related to thejudicial activity of the Court itself at its public sittings. Further, noticeof the returnable date is required to be given to the parties so thatthey may apprise themselves of the contents of the Surveyor’s returnand object to it if necessary or resort to the special procedure insection 48(4) to establish any right that has been extinguished or isprejudiced by the interlocutory decree. In this context, I refer inparticular to section 27(2) which states in relation to the final surveythat the Court “shall in open court fix the returnable date of thecommission” (underlined by me). Further, section 31 which providesfor what should be done by the surveyor when he carries out thecommission for partition on the land, expressly states that he “shallinform the parties present of the returnable date of the commissionfixed under section 27.”
Viewed in the foregoing context of the statutory scheme of thePartition Law, the provisions of section 48(4) (a) which speak of thedate on which the return of the surveyor “is received by the Court”have to be necessarily construed as receipt of the return by the Courton the returnable date notified to the parties in open court undersection 27 and by the Surveyor under section 31. The receipt of thereturn by “the Court” as referred in section 48(4) (A) must necessarilybe related to fixing of the returnable date “in open court” as requiredby section 27. In both instances, the word “Court" should beconstrued restrictively to mean only the Court at its public sitting andcannot be extended to cover the Registry and its administrative work.
The foregoing construction is also in accord with the convenienceof parties and is in every respect reasonable and just. Section 48(4)(a) lays down a time limit within which a party whose rights areextinguished or prejudiced may make an application, to establish hisrights. The time limit is computed with reference to “the date onwhich the return of the Surveyor … is received by the Court." Thesubmission of learned Counsel for the Appellant (similar submissionappears to have been upheld in the case of Perera v. Perera) (supra)is that the date the return is received in the Registry should be takenas the operative date for computing this time bar. The return of the
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Surveyor may be made by the Surveyor by sending the papers bypost or handing them over physically at the Registry. In either eventno party would be aware of that date. It would be a matter ofknowledge between the Surveyor and the officer of the Registry whoreceives the papers. Therefore, a party would not know the timewithin which the application should be made. If that be taken as thedate for computing the time bar. This would indeed be anunreasonable and unjust result that would cause immenseinconvenience to parties and should as noted in the aforestatedprinciples of interpretation, be avoided if there be anotherinterpretation which is reasonable, just and convenient. On the otherhand, if the operative date for computing the time bar is taken as thedate the return of the Surveyor is received at a public sitting of theCourt, the date of such receipt would be well within the knowledge ofevery party. Furthermore, the returnable date is notified to parties inopen court under Section 27 and by the Surveyor under Section 31and any party who wishes to avail of the opportunity to make anapplication for special leave to establish his rights would know whenthe return will be received by court. Hence, this construction is theone most agreeable to justice and reason.
Another reason for not accepting the submission of learnedcounsel for the appellant is that if the date the return is received atthe Registry is taken as the operative date, the entire period of 30days within which an application should be made under section 48(4)(A) may elapse before a party becomes aware in open Court of thefact of receipt of the return. In the instant case, in fact the return wasreceived in the Registry several months before the returnable day onwhich the matter was to come up in open Court. The entire period oftime within which an application could be made under Section 48(4)(a) had elapsed before a party would in the ordinary course becomeaware that the return has been received. The resulting position is thatthe objective of the legislature in affording an opportunity to any partywhose rights are extinguished or prejudiced, to make an applicationto establish his rights, is rendered nugatory by a process ofinterpretation. The basic rule of interpretation is that the legislativeobjective should be advanced and that the provisions be interpretedin keeping with the purpose of the legislature. The interpretationsubmitted by learned counsel for the Appellant has the effect ofdefeating the objective of the legislature and of detracting from itspurpose.
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It is seen from the foregoing analysis that there are overwhelmingreasons to construe the phrase “may at any time, not later than 30days after the date on which the return of the Surveyor under Section32 … is received by the Court …” on the basis that the words “theCourt" are restricted in their operation to the Court in public sittingand do not extend to cover the Registry of the Court. In thecircumstances, I am of the view, that the period of 30 days has to becomputed after the date the return of the Surveyor is received in openCourt on a returnable date that had been fixed by Court.
For the foregoing reasons I see no merit in this appeal. The appealis dismissed with costs.
DR. R. B. RANARAJA, J. – I agree.
Appeal dismissed.