034-SLLR-SLLR-2006-V-1-YANOOS-vs.-ZIARD-AND-OTHERS.pdf
CA
Yanoos Vs.
Ziard and Others
285
YANOOSVS
ZIARD AND OTHERSCOURT OF APPEALSOMAWANSA, J (P/CA) ANDWIMALACHANDRA, J,
CALA 450/2004
D. C. COLOMBO 18591/99P
Partition Law, section 26(2) b – Sale of corpus – Apartment Ownership Law, No.11 of 1973, section 23 – Applicability 7 – Old building – Condominium plan -Duty of court
The plaintiff-respondent sought to partition the land and premises whichconsisted of a four storeyed building. At the trial as there was no contest, theplaintiff respondent invited court to act in terms of section 26(2) b – sale ofcorpus. The trial judge directed the sale of the corpus. The 4th defendantpetitioner after obtaining a report from a Licensed Surveyor, moved court to actunder the provisions of the Apartment Ownership Law. It was contended thatthe provisions of this Law was not brought to the notice of Court and sought thepossibility of dividing the corpus amongst the co-owners. The trial judge rejectedthe application – On leave being sought –
HELD:
The property sought to be partitioned is not a building registeredunder Law, No. 11 of 1973 and no application had been made toregister a condominium plan. Therefore section 23 of the said Law isnot applicable.
In any even the possibility of registering the building under the Law isvery remote as the building in suit is more than 75 years old.
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Sri Lanka Law Reports
(2006) 1 Sri L R.
Per Somawansa, J. P/CA.,
‘As the land and the building is not registered as a condominium propertyunder the Apartment Ownership Law the District Judge was not obliged togo on a voyage of discovery on his own to consider the applicability of thesaid Law."
APPLICATION for leave to appeal from an order of the District Court of Colombo.
Sanath Jayatilake for 4th defendant petitioner.
M. Farook Thahir for plaintiff respondent.
June 22, 2005,
SOMAWANSA, J.(P/CA),
This is an application for leave to appeal against the order of the learnedDistrict Judge of Colombo dated 10.11.2004 refusing and rejecting theapplication of the 4th defendant-petitioner to inquire into the possibility ofhaving the corpus partitioned amongst the parties to the action in terms ofthe Apartment Ownership Law, No. 11 of 1973 as amended.
The relevant facts are the plaintiff-respondent instituted the instant actionin the District Court of Colombo seeking to partition the land and premiseswhich consisted of a four storeyed building situated at Prince Street, Pettah,Colombo 11 morefully described in the schedule to the plaint.
When the trial was taken up all parties were represented by counseland all of them informed Court that there was no dispute as to title or theidentity of the corpus among the parties and sought permission of Court tolead evidence of the plaintiff-respondent and accordingly no points of contestwere raised and the plaintiff-respondent's evidence was led. The plaintiff-respondent having given evidence as to the chain of title invited Court toact in terms of Section 26(2) (b) of the Partition Act and sought an order ofsale of the corpus. There was no cross examination by any party on anypoint. Accordingly the learned District Judge by his judgment dated
directed the sale of the corpus in terms of Section 26(2) (b) ofthe Partition Law. He further directed the entering of interlocutroy decreein terms of the judgment and the issue of a commission to auction thecorpus.
CA
Yanoos Vs.
Ziard and Others (Somawansa, J.{P/CA),)
287
It is the position of the 4th defendant-petitioner that being perturbedwith this order he sought advice and was advised that all parties had madea genuine mistake in coming to the conclusion that there was no alternativeto the sale of the property but that there was an alternative in that in termsof Apartment Ownership Law, No. 11 of 1973 as amended there was apossibility of dividing the corpus amongst the parties which angle had notbeen examined as none of the parties nor the learned District Judge lenttheir minds to this aspect of the matter. The 4th defendant-petitionerthereafter obtained a report from a Licensed Surveyor who expressed theopinion that the corpus could be dealt with under the terms of ApartmentOwnership Law, No. 11 of 1973 as amended. Accordingly the 4th defendant-filed a motion dated 16.08.2004 marked X2 and on direction from Courtfiled a petition and affidavit dated 25.08.2004 whereby he brought to thenotice of Court that the possibility of dividing the corpus amongst the co-owners has not been considered by the parties and hence not consideredby Court. The existence of Apartment Ownership Law, No. 11 of 1973 asamended has not been brought to the notice of Court and hence thepossibility of having a building plan approved under the said law had notbeen considered and that the market price of the building will be adverselyeffected by the presence of so many tenancies and the price would bevery much less than if it was otherwise. He further alleged that grave andirreparable loss and damage will be caused to the parties if the matter ofthe possibility of the approval of a condominium plan is not considered.
At the inquiry into this application, the learned District Judge had directedparties to tender written submissions -if they so desired but the recorddoes not indicate that the 4th defendant-petitioner sought to lead evidenceof an expert or that the learned District Judge expressed the view thatthere was no need for oral evidence as the matter in issue is purely aquestion of law. The learned District Judge having considered the writtensubmissions tendered by both parties by his order dated 10.11.2004dismissed the aforesaid application of the 4th defendant-petitioner. It isthis order that the 4th defendant-petitioner is seeking to set aside andvacate.
As stated above it is to be noted that at the trial all parties were presentand were represented by counsel and all of them including the 4th defendant-petitioner and his counsel informed Court that there was no contest as to
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shares or any other matter. It was also agreed by all parties that theproperty sought to be partitioned cannot be divided. The plaintiff-respondentin her evidence stated that the four storeyed building is more than 75years old and is not possible to be divided or partitioned amongst the co-owners and prayed that the property be sold in terms of Section 26(2) (b)of the Partition Law. The plaintiff-respondent was not cross-examined bythe counsel for the 4th defendant-petitioner or for that matter by any othercounsel. The learned District Judge in his judgment refers to the preliminarysurvey report prepared by P. W. Fernando, Licensed Surveyor wherein hestates that the building is very old which cannot be partitioned. The 4thdefendant-petitioner was present when the Surveyor came for the survey.
The 4th defendant-petitioner in his application to the original Court aswell as to this Court refers to the Apartment Ownership Law, No. 11 of1973 as amended and states that there was a possibility of dividing thecorpus. However it is common ground that the property sought to bepartitioned is not a building registered under the Apartment OwnershipLaw, No. 11 of 1973 as amended and no application had been made toregister a condominium plan. Therefore Section 23 of the ApartmentOwnership Law, No. 11 of 1973 has no application to the property soughtto be partitioned and in any event the possibility of registering the buildingunder the aforesaid Apartment Ownership Law, No. 11 of 1973 as amendedis very remote for the simple reason that the building in suit is more than75 years old.
It is also contended by counsel for the 4th defendant-petitioner thatparties had made a genuine mistake in agreeing to sell the property. Howeverit is to be noted that the plaintiff-respondent and the other defendants-respondents do not concede that they have made a genuine mistake nordo they consent to the application made by the 4th defendant-petitioner. Itis only the 4th defendant-petitioner who seeks to have the buildingregistered under the Apartment Ownership Law, No. 11 of 1973 as amendedand partitioned.
The 4th defendant-petitioner has in order to support his belated claimobtained a report from S. Rasappa, Licensed Surveyor who has expressedan opinion that the corpus could be dealt with under the terms of theApartment Ownership Law which I must say appears to be a self servingdocument specially obtained by the 4th defendant-petitioner and not madeavailable to this Court. In the circumstances, I have no opportunity
CA
Yanoos Vs.
Ziard and Others (Somawansa, J.(P/CA),)
289
of examining this report. In any event, neither the plaintiff-respondent northe other defendant-respondents have contested the validity of theinterlocutory decree entered by Court or sought a variation of it.
It appears that only the 4th defendant-petitioner who at the trial hadagreed to a sale of the property is now seeking a variation of the judgmentas well as the interlocutory decree that has been entered in the action. Imight say in this respect that if Courts were to entertain this type ofapplication made by a party to a partition action simply because he haschanged his legal advisors and has been advised to take a different standto that what he agreed upon at the trial would in effect result in eradicatingthe fianlity given to the interlocutory decree as well as opening the floodgates for parties to canvass the judgment on flimsy grounds based onafter thought or on ill advice received and to go back on the stand taken atthe trial.
The counsel also submits that the failure to consider the ApartmentOwnership Law, No. 11 of 1973 as amended makes the judgment of thelearned District Judge to be a judgment perineurium. There is no merit atall in this submission for the learned District Judge has based his judgmenton the evidence placed before him and no party wanted the corpus to bepartitioned, but all were in agreement that the corpus should be sold. Inany event as the land and the building is not registered as a condominiumproperty under the Apartment Ownership Law the learned District Judgewas not obliged to go on a voyage of discovery on his own to consider theapplicability of the Apartment Ownership Law, No. 11 of 1973. The allegationthat the learned District Judge has failed in his statutory duty and thatalone is sufficient for this Court to intervene is without any merit.
For the foregoing reasons, I have no hesitation in rejecting the applicationfor leave to appeal. Accordingly the leave to appeal application will standdismissed with costs fixed at Rs. 20,000.
WIMALACHANDRA, J. – I agree.Application dismissed.