Sri Lanka Law Reports
 2 Sri L.R
WIJERATNE AND ANOTHER
PUNCHI APPU AND OTHERS
COURT OF APPEALDISSANAYAKE, J. ANDSOMAWANSA, J.
A. 576/90 (F)
C. MATARA 7523/PAUGUST 21, ANDSEPTEMBER 6, 2001
Partition Law, No. 21 of 1977 – Amendment of final decree to fall in line withamended interlocutory decree – Validity – Civil Procedure Code, section 189- Laches – Does it apply when the error is by court 7
The final decree has been based on the original interlocutory decreeand not on the amended interlocutory decree.
This has happened as a result of the mistake or error made by court.
The learned District Judge has used the discretion of the court correct-ly.
A court whose act has caused injury to a suitor has an inherent powerto make restitution. No man shall be put in jeopardy by a mistake or anerror made by court.
Delay on the part of the respondent in making the application can beexcused.
APPEAL from the judgment of the District Court of MataraCases referred to:
Mohamed Iqbal and another v Mohamed Sally and another – (1995)2 Sri LR 310 (distinguished)
Sivapathalingam v Sivasubramaniam – (1990) 1 Sri LR 378
Rohana Jayawardana for substituted 2nd defendant-respondent-appellantVidura Gunaratne for 4th defendant-respondent
Wijeratne and another v Punchi Appu and others
23 August, 2002OISSANAYAKE, J.
This is an appeal arising out of the order dated 30.03.1990 of cithe learned District Judge allowing the application made by the 4thdefendant-petitioner-respondent, under section 189(1) of the CivilProcedure Code to amend the final Partition decree by directingthat the partition of the property be effected according to the finalscheme of partition as depicted in plan 156.1 B and Report ofLicensed Surveyor Wickremasuriya, instead of plan No. 1561 A ofthe same surveyor. In pursuance of this direction the learnedDistrict Judge had amended the final decree of the case in order tobring it in line with the amended judgement dated 19/10/1975 and 10the amended interlocutory decree entered by the then learnedDistrict Judge.
Learned counsel appearing for the substituted 2nd defendant-respondent-appellant’s contention as reflected in his written sub-missions tendered was that the iearned District Judge was in errorwhen he allowed the application of the 4th defendant-petitioner-respondent for the following reasons:-
that the power of amendment of a decree under section189 of the Civil Procedure Code is a discretionary reme-dy and must be sparingly used and the discretion must be 20used only in order to prevent a miscarriage of justice.
that the 4th defendant-petitioner-respondent was guilty oflaches.
Learned Counsel for the substituted 2nd defendants-respon-dent cited the case of Mohamed. Iqbal and another v MohamedSally and another' where Ranaraja, J. at page 314 has observedthat the power of Court under section 189 is to be exercised entire-ly at the discretion of Court, and this discretion should be exercisedsparingly and in order to avoid a miscarriage of justice, if not theprinciple of the finality of a judgment and decree contemplated by 30the provisions of the Partition Act would be rendered meaninglessor nugatory.
The facts of Mohamed Iqbal and another v Mohamed Sallyand another (Supra) are different to the facts of this case,
Sri Lanka Law Reports
(2003} 2 Sri L.R
In that case, in terms of a consent judgment, LicensedSurveyor R.C.D. de la Motte, in the presence of the Judge, the par-ties and their respective, counsel demarcated the northern bound-ary of Lot 1A on the ground, leaving access to the defendants forthe user of their lavatory situated close to the boundary. The partieswere directed to errect a fence along the boundary pointed out bythe surveyor.
After decree was entered in terms of the settlement, on anapplication made by the defendant to amend the decree on theground that it does not accord with surveyor de la Motte’s plan, theDistrict Judge after an inquiry held consequent to an inspectiondirected the defendant to tender a fresh decree which was signedby him. Subsequently on an application made by the plaintiff theDistrict Judge rejected the decree that was entered and directedthe plaintiff to submit a fresh draft which was accepted and signedby Court. It was held that neither party has alleged that there hasbeen an error caused by an accidental slip or omission on the partof their respective counsel or Court. Thus it was held that there wasno question of amending the decree to bring it into conformity withthe terms of settlement. It was observed that Courts should exer-cise its discretion sparingly in such situations.
In the present case however after the interlocutory decree wasentered on 14.03.1975 the learned District Judge made order toamend the interlocutory decree allotting 26/1152 shares to the orig-inal 2nd defendant and 216/1152 shares to the 4th defendant-peti-tioner-respondent and directed a commission be issued to the sur-veyor together with plan 1561 A, documents and the amendedinterlocutory ' decree. The amended interlocutory decree wassigned by the learned District Judge.
Accordingly Licensed Surveyor Mervyn Wimalasuriya pre-pared plan No. 1361 B allotting inter alia Lot 3 to the 4th defendant-petitioner-respondent and Lot 2 to the original 2nd defendant.
However the final decree drafted by the attorney-at-law of theplaintiff has been based on the original interlocutory decree andnot on the amended interlocutory decree. This has .happened as aresult of an error.
Wijeratne and another v PunchiAppu and others
On an application made by the 4th defendant-petitioner-respondent the learned District Judge by his order dated30.03.1990 rightly concluded that the final decree was not in con-formity with the amended interlocutory decree on which plan 1561B was prepared and parties allotted their respective shares whichwas being sought to be confirmed by the final decree. The learnedDistrict Judge had used the discretion of the Court correctly.
In considering the question of laches on the part of the 4thdefendant-petitioner-respondent it has to be borne in mind thatthere had been no mistake or error on his part. The mistake or error soin the final decree had been occasioned by a lapse on the part ofthe District Court in not checking whether the final decree was inconformity with the amended interlocutory decree before it wassigned. There was no way in the 4th defendant-petitioner-respon-dent being aware of this mistake or lapse that has occurred on thepart of the Court.
It is well to be borne in mind the principle that no man shall beput in jeopardy by a mistake or an error made by a Court.
It has been held in Sivapathalingam v Sivasubramaniam(2)that a Court whose act has caused injury to a suitor has an inher- 90ent power to make restitution.
Therefore the delay on the part of the 4th defendant-petition-er-respondent in making the application can be excused.
Therefore I see no basis to interfere with the order of thelearned District Judge.
The appeal of the substituted 2nd defendant-respondent-appellant is dismissed with costs.
SOMAWANSA, J.I agree.
WIJERATNE AND ANOTHER v. PUNCHI APPU AND OTHERS