098-NLR-NLR-V-34-WIJEYESINGHE-et-al.-v.-ULUWITA.pdf
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Wijeyesinghe v. Uluwita.
1933Present: Macdonell C.J. and Drieberg J.
WIJEYESINGHE et al. v. ULUWITA.
418—D. C. Badulla (B. T. O.) Special.
Buddhist Temporalities—Application to recover possession of property from asuspended trustee—Order of suspension under hand of President ofDistrict Committee—Power of Court to vacate the order entered perincuriam—-Ordinance No. 8 of 1905, s. 35.
An application to the District Court under section 35 of the BuddhistTemporalities Ordinance for the issue of a writ to recover possessionof property from a suspended trustee must be supported by the order ofsuspension certified^ under the hand of the President of the DistrictCommittee.
The District Court has power to recall process which it has issuedimprovidently.
^^PPEAL from an order of the District Judge of Badulla.
The first appellant petitioned the District Court under section 35of the Buddhist Temporalities Ordinance for the issue of a writ to ejectthe second respondent from property of which he was in possessionas trustee on the ground tfiat the latter had been *' suspended by thePresident of the District Committee. The application was allowed.The second respondent thereupon appeared in Court and representedto Court that the suspension was without the authority of the DistrictCommittee. The learned District Judge then recalled the writ untilthe order of suspension under the hand of the President of the DistrictCommittee was produced in accordance with the requirements of section 35of the Ordinance.
N. E. Weerasooria (with him Ranawake and Sri Nissanka), forappellant.—Once the Court has issued the writ it is functus officio. Itcannot inquire into whether the person making the appointment was infact President or not. Any'party aggrieved has a separate action fordamages (Nugawela v. Ratwatte) / Otherwise whenever a question arisesunder section 35 the Court will have to inquire into the constitution ofthe District Committee. The District Court has no jurisdiction overthe District Committee except where such jurisdiction is conferredby the Ordinance (Subasinghe v. Ecknelligoda) .*
.H. V. Perera (with him E. B. Wickramanayake), for respondent.—The order was obtained on insufficient material and false representations.
15 Bal. Rep. 54.
2 4 C. W. R. 166.
MACDONELL C.J.—Wijeyesinghe v. Uluwita.'
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The order was made ex parte and can be vacated. The power to vacatesuch an order is inherent in every Court. In Sayadoo Mohamedu v.Maula Abbubakkar1 an order made ex parte allowing leave to defendunder Chapter 53 of the Code was vacated. No express power to vacatesuch an order is given in the Code. The power is therefore the inherentpower. Section 839 does not give powers to a Court. It only preservesan existing power (33 Cal. 927). In Muttiah v. Mutusamy2 an ex parteorder for sequestration before judgment on insufficient material wasvacated. On the power to vacate judgments, see Black on Judgments,Vol., 1., ss. 297 and 318. The power of the District Court is not exhaustedunder the Buddhist Temporalities Ordinance when writ is issued. Itcontinues till the decree is completely executed.
N. E. Weerasooria in reply.—Under section 35 the only power givento the Court is to issue the writ. This is not a civil suit.
February 10, 1933. Macdonell C.J.—
In this appeal the facts are as follows : The first appellant, who isPresident of a District Committee under the Buddhist TemporalitiesOrdinance of 1905, petitioned the District Court of Badulla that it shouldbe pleased to issue a writ under section 35 of that Ordinance for theejectment of the second respondent from such Buddhist propertyas he then was in possession of as trustee. In the petition, and in theaffidavit upon which the appellant made this application, he statedthat the second respondent whose ejectment he asked for had been“ suspended by the President of the Kataragama District Committeeunder section 16 of the Ordinance.” He does not give the name of thatPresident but it seems common cause that by “President” he meantthe second appellant. Now section 16 is quite clear that power ofsuspending a trustee is given to the District Committee, and not to thePresident of that body. The first appellant took this petition andaffidavit to the District Judge and applied in person for a writ issuableunder section 35 and obtained it. This was clearly the issue of a writper incuriam since the petition and affidavit on which the writ was issuedwere ex jade defective ; they allege suspension by the President andnot by the District Committee. The next day representation was madeto the District Judge of Badulla by the first respondent in a petitionand affidavit in which he stated amongst other things that the secondappellant did not possess the position of President, that any suspensionof the second respondent was without the authority of the Committeeand that the issue of the writ was wrong. This application came beforethe District Judge, and he made the following order:“I* think the
proper order for the Court to make is to call upon the person who claimedto be the President communicating a decision of the Committee to theCourt to produce evidence of that decision, over and above his own
* 28 N. L. R. 58.
*1 N. L. R. 4..
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MACDONELL C.J.—Wijeyesinghe v. Uluwita.
averment.” In effect the learned Judge was asking for the evidencerequired by the concluding sentence of section 35 of the Ordinancewhich requires an application for a writ to be accompanied by the orderof suspension or dismissal duly certified under the hand of the Presidentof the District Committee. No such order had yet been producedto the District Judge and he was therefore staying the writ until suchorder was produced to him in terms of section 35. It is from that orderrecalling the writ and asking for further evidence as to the facts whichwould justify its issue that the present appeal is brought.
It has been contended that once the learned Judge had issued- thewrit he had done all that he was empowered to do. under the sectionand that the subsequent proceedings which he took and the order whichhe made, that which is now appealed against, were beyond his powers.
I doubt that this would be so for the reasons given previously. Noorder of suspension or dismissal had yet been produced to him as requiredby section 35, and such order would have to be produced to him beforehe could grant that writ. The case in 5 Balasingham, p. 54 1 was pressedon us but it deals with a different matter, viz., whether an ordinaryCourt of justice can revise or reverse a decision come to by a DistrictCommittee. The present case is a totally different one. as is apparentif one considers those words in section 35 which says :“ It shall be
competent for a District Court to issue its writ to a Fiscal or DeputyFiscal, and give possession accordingly as if it were a writ issued inexecution of its own decree.” The case in 5 Balasingham, p. 54, does notdeal with that point. On the words of section 35 it seems to me thatwhat the learned Judge did when he recalled the writ and ordered aninquiry was something done under the powers given him by theOrdinance.
If one puts the case on wider grounds I cannot help thinking thata District Court has the power to recall process which it has issuedimprovidently, that is to say, on information which is or which is allegedto- be insufficient or misleading. It seems clear from section 839 that aDistrict Court has certain inherent powers, and the various authoritiescited to us in argument support this view. It would indeed be extra-ordinary if such Court has not the power of vacating an order whichhad been obtained from it on insufficient or inaccurate informationand there is abundant authority that it has that power. That will be sogenerally and if we come to the particular matter before us an ex parteorder, it is clear that a District Court has power on notice to the partyinterested to vacate or recall an ex parte order—see per Jayewardene J.in 28 N. L. R. 63. An almost stronger case is that in 1 N. L. R. 25which is a decision binding upon us and with which I respectfully agree,that a District Court has power on notice to vacate an order forsequestration, although there is no section in the Civil Procedure Codeexpressly giving this power to vacate an order for sequestration ; it is aninherent power then.
GARVIN S.P.J.—Rosairo v. Silva.
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Therefore on general grounds, and on the particular ground of thismatter also, it seems that a District Court has the power to stay processby such an order as the one now under appeal. For the foregoing reasonsI am of opinion that this appeal should be dismissed with costs.
Drieberg J.—I agree.
Appeal dismissed.