WIMALAWATHIE v. JAYAWARDENE

016-SLLR-SLLR-2004-V-3-WIMALAWATHIE-v.-JAYAWARDENE.pdf


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Sri Lanka Law Reports
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WIMALAWATHIE
V
JAYAWARDENE
COURT OF APPEALWIJERATNE, J.
DC. MATUGAMA 335/P.
DECEMBER 5, 2003.
Partition Law, – Sections 32 and 48(4) – Lis pendens covered a lesser extentthan the land ordered to be partitioned – Answers to issues contradictory -Application to amend decree to fall in line with the determinations made bycourt – Does it fall within section 48(4)? – Injustice – Inherent powers of court- Act of court – Causing injury to a suitor – Remedy.
The 25th defendant-appellant filed an application in the District Courtcomplaining that the lis pendens covered only an extent of 4 acres and thecorpus ordered to be partitioned is in excess of an extent of 20.8 perches andprayed that the excess be excluded in her favour. The application was rejectedby court.
On appeal, acting in revision:
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Wimalawathie v Jayawardene
.(Wiiavaratne. J.)
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Held:
The trial judge had held that the land constituted only of Lots A1, A2, Bto L in plan “X” and that Lots M1 and M2 do not form part of the corpus,but had ordered that the land in plan “X” which included Lots M1 andM2 be partitioned.
Although the 25th defendant-appellant did not appeal from thejudgment he had every right to expect the interlocutary decree toinclude only Lots consisting the corpus as determined by the trial judge.
Per Wijayaratne, J.,
“ The Partition Act does not contain any specific provision dealing with such asituation, yet, section 48 provides that in a given situation the original courtitself could amend the decree, this provision in principle accepts the rule thatnotwithstanding the finality of the decree court should be empowered to repairany mistake or injustice that could result in injury to a party.”
Per Wijayaratne, J.,
“ Though the application did not fall within the specific grounds or instancesenumerated in section. 48 (4), the application is to remedy a situation resulting
in injustice to the appellantit is a grave injustice to let several Lots not
determined as parts of the corpus to be included in the final plan resulting infailure of justice and injury to the appellant”
(2) A court whose act has caused injury to a suitor has an inherent power,to make restitution. This power is exercizable by a court of original jurisdictionas well as by the Supreme Court.
APPEAL from an order of the District Court of MatugamaCases referred to:
Gunasena v Bandarathilaka – 2002 1 Sri LR 292
Sivapathalingam v Sivasubramaniam -1990 1 Sri LR 378S. Gunasekera for 25th defendant-appellant.
Manohara R. de Silva for plaintiff-defendant.
Cur.adv.vult.
March 15, 2004WIJAYARATNE, J.
This is an appeal from the order of the learned District Judge ofMatugama dated 23.05.1996 dismissing the application of the 25thdefendant, The application of the 25th defendant-appellant was on
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the basis that the lis pendens registered covered only an extent offour acres of land and the corpus of this action ordered to bepartitioned is in excess of an extent of twenty point eight perches.This defendant-appellant by his application dated 28.01.1994prayed that such extent in excess of the land covered by the lispendens be excluded in favour of her. She further objected to theapproval of the final plan of partition contained in plan No. 711dated 07.04.1995 prepared by G.Adikaram Licensed Surveyor. Thelearned District judge after inquiry by his order dated 23.05.1996dismissed the application of the appellant, including his objectionsto the final plan and confirmed the scheme of partition in the saidplan No. 711.
Aggrieved by such order the 25th defendant-appellant preferredthis appeal, which was on 07.10.1996 rejected but restored to thelist of pending appeals by subsequent order dated 26.09.2003 ofthe Supreme Court in case No. 1818/99. Accordingly the matterwas argued on 05.12.2003 and the parties made furthersubmissions in writing.
To appreciate the matter in issue in its correct perspective, it willbe relevant to examine the history of the case proceedings. Theplaintiff sought to partition the land called Diyaporella Kumbura &Owita morefully described in the schedule to the plaint. Thepreliminary survey depicted the land as lots A1, A2, B to M1 and M2in plan No. 544 dated 21.07.1978 prepared by N. Kularatne,Licensed Surveyor, which plan was marked X later in the trial. The18 to 20, 25 to 31 defendants filed statement of claim, setting outtitle to undivided rights in the corpus without any reference ormention as to what constituted the corpus. However, at thecommencement of the trial plaintiff suggested point of contest onthe footing that corpus consists of Lots A1, A2, B,C,D,E,F,G,H,I,J,K,and L in plan'No. 544 aforesaid. On behalf of 18 to 20, 25 to 31defendants (which group included the present 25th defendant-appellant) raised points of contest whether Lots A1,A2 to L, M1 &M2 in plan No. 544 constituted the corpus or else did only LotA1 ,A2,B to L constitute the corpus.
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Wimalawathie v Jayawardhana
(Wiiavaratne. J.)
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The plaintiff giving evidence specifically stated that lots M1 and M2do not constitute the corpus. The 25th defendant-appellant,
contesting the identity of the corpus as well as the devolution of titleset out by the plaintiff testified at length. It is significant to note thatthe 25th defendant, now claiming the exclusion of 20.8 perches asin excess of the extent of land covered by the lis pendens did notutter a word about what lots in preliminary plan 544 marked X,constituted the corpus nor was there any evidence on the inclusionof Lots M1 and M2 or otherwise, which Lots the plaintiff moved toexclude. At the conclusion of the trial the learned Judge in hisjudgment answered the point one of the contest in the affirmativeholding that the corpus consists of lots A1 ,A2, B to L in plan X.However, in answer to the point of contest No.5 which suggestedthe corpus consisted of lots A1 ,A2,B to L (or excluding lots M1 andM2) the learned trial Judge, answered in the negative; that too afteranswering the point of contest No.4 (suggested Lots M1 and M2too were to be included in the corpus) in the negative. Thendeclared that the land depicted in plan X be partitioned accordingto the rights of parties shown in the plaintiffs pedigree. The learnedDistrict Judge having answered point of contest No. 1 in theaffirmative and point of contest No. 4 in the negative could not haverationally answered point of contest No. 5 in the negative. Theanswers on record are contradictory and without any rational basisand the learned District Judge who held that land depicted in Plan544 marked X consisted only of Lots A1, A2, B to L has concludedthat Lots M1 and M2 do not form part of the land to be partitioned.Then he could not have ordered that the land depicted in plan 544marked X which included lots M1 and M2 be partitioned. Thefailure on the part of the learned District Judge to specify the lotsdepicted in plan X to be partitioned has resulted in Lots M1 and M2(as in plan X) being included in the corpus.
The 25th defendant who has by subsequent applications madeto court was not successful in having the attention of the courtdrawn to this fact. In fact it was due to the failure of the 25thdefendant-appellant to prosecute this appeal, that the matter couldnot have been determined before the final partition is done.
However, upon the findings of the learned trial Judge himself theland to be partitioned should consist only of Lots A1, A2, B to L in
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plan 544 marked X as held in answer to points of contest No 1 and
Accordingly the order confirming the final partition plan 711 dated
which included lots M1 and M2, could not have beenrightly made. The question whether the 25th defendant-appellantwho was not allotted any rights could lawfully have objected to the 80final partition is irrelevant to the extent of lots he claimed anddecided by court not to be parts of corpus being included in the finalpartition. It is pertinent to note that the learned District Judge whoinquired into the subsequent applications of the 25th defendant-appellant have failed to appreciate this aspect of the matter ofcomplaint before refusing his applications, considering only oneaspect of the application only.
The matter of inclusion of lots M1 and M2 in the corpus asaverred by the 25th defendant (though a party contestant) on theground that it is prejudicial to his interests, and definitely not in goterms of the judgment. Although the 25th defendant-appellant didnot appeal from the judgment of the learned trial Judge, he hadevery right to expect Interlocutory decree to include only these lotsconsisting the corpus as determined by the trial Judge. Howeverthe Partition Act does not contain any specific provisions dealingwith such a situation, yet section 48 provides that in given situationsthe original court itself could amend the decree. This provision inprinciple accepts the rule that notwithstanding the finality of thedecree, court should be empowered to repair any mistake orinjustice that would result in injury to a party. In the instant case the 100application of the 25th defendant-appellant is to the effect ofamending the decree in line with the determination made by thetrial judge, though it did not fall within the specific grounds ofinstances enumerated in subsection 4 of section 48 of the PartitionAct. However, the application is to remedy a situation resulting ininjustice, prejudice and injury to the appellant even according to thejudgment of the trial judge, which resulted in mistake of fact.
Though this court observes that the judgment is not appealedfrom, still it is a grave injustice to let several lots not determined asparts of the corpus to be included in the final partition resulting in nofailure of justice and injury to the appellant.
CA
Wimalawathie v Jayawardhana
fWiiavaratne. J.)
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In the case of Gunasena v Bandarathilake (1) it was held,
‘The Court of Appeal had inherent power to set aside thejudgment dated 25.05.1998 and to repair the injury caused tothe plaintiff by its own mistake, notwithstanding the fact thatthe said judgment had passed the decree of court. This couldnot have been done otherwise than by writing a freshjudgment”.
Per Wijetunga, J.
“The authoritiesclearly indicate that a court has inherent 120
power to repair an injury caused to a party by its own mistake.Once it is recognized that a court would not allow a party to sufferby reason of its own mistake, it must follow that corrective actionshould be taken as expeditiously as possible, within the frameworkof the law, to remedy the injury caused thereby. The modalities arebest left to such court, and would depend on the nature of the error.
It has also been held in, Sivaparthlingam v Sivasubramaniani2)that, a court whose act has caused injury to a suitor has an inherentpower to make restitution. This power is excisable, by a court oforiginal jurisdiction as well as by a superior court.130
Accordingly this court exercising its inherent powers and actingin revision amends the judgment and interlocutory decree enteredthereon, that lots A1, A2 and B to L only, as determined in answerto points of contest Nos. 1 and 4 be partitioned according to therights determined by the learned trial judge.
Observing that the failure of the 25th defendant-appellant tohave the judgment and decree amended in appeal preferred intime, has resulted in the case proceeding to the stages of enteringof final partition and final decree, this court rules that the 25thdefendant-appellant should bear the costs of the execution ofuocommission for final partition.
In the result this court allows the appeal of the 25th defendant-appellant, sets aside and vacates the order of the learned DistrictJudge dated 23.05.96 confirming the final partition plan and toenter final decree, amend the judgment and the interlocutorydecree as aforesaid and direct the reissue of commission undersection 32 of the Partition Act on the amended interlocutory decree.