R. Gurusinghe

The 4^th defendant-petitioner (hereinafter sometimes referred to as the petitioner) filed this Restitutio-in-Integrum application under the provisions of Article 138 of the Constitution. The petitioner seeks to set aside inter alia the judgment of the Learned District Judge of Mathugama, delivered in the case of 5180/P dated 13-10-2015, and the Interlocutory Decree and the Final Decree and to restore the petitioner’s position that she would have had if the judgment of District Court dated 13-10-2016 has not been delivered.

The respondents filed objections to the petitioner’s application and took up the position that the petitioner was guilty of lashes, and no exceptional circumstances were pleaded. Further, it took up the position that the Court of Appeal had no jurisdiction to revisit the judgment that had already been affirmed by the apex court. However, this will be later adverted in this judgment that the apex court had not affirmed the impugned judgment.

An application for Restitutio-in-Integrum is an extraordinary remedy granted to a person in a fit case to avert a miscarriage of justice. The petitioner pleaded in this application that the Plaintiff-respondents had done a series of fraudulent acts to defraud her. Such acts will be demonstrated in this judgment, which vitiate the validity of the impugned judgment.

In this case, though there are lapses on the part of the petitioner, since the plaintiff-respondents have clearly practised fraud on the court from the inception of the case, in order to wipe out the rights of the petitioner, especially to eject her from her own house, which was undisputedly claimed only by her, the impugned judgment becomes a nullity.

In the case of Maduluwawe Sobitha Thero vs Joslin and Others [2005] 3 SriLR 25Wimalachandra J. held:

(1) Section 48(3) of the Partition Law overrides section 44 of the Evidence Ordinance; accordingly, even a judgment obtained by fraud or collusion would have the final and conclusive effect provided by section 48(1). Held further:

(2) It is to be noted that the plaintiff-respondent failed to disclose the name of the petitioner who has title to the entire land. The failure to make a correct declaration under section 12(1) of the Partition Law amounts to a procedural irregularity which results in a miscarriage of justice.

(3) Per Wimalachandra, J. “It is the duty of the plaintiff- respondent’s attorney- at-law, after the registration of the lis-pendence, to personally inspect the entries in the Land Registry that relate to the land. The section 12 declaration filed failed to disclose the petitioner’s name, although his title deed is duly registered. This is a violation of the provisions of the Partition Law and callous disregard of the provisions of the Partition Law, which caused a miscarriage of justice and, in my view, amounts to the fundamental vice".

(4) A person who had right title or interest in the subject matter not being made a party to a partition action is a victim of a miscarriage of justice. He can always invoke the powers of revision and restitution in integrum.

(5) If the Court of Appeal fails to invoke its power of revision, grave injustice will result to the petitioner.

(6) Fraud vitiates all proceedings and a judgment obtained by fraud cannot stand.

Section 48(3) of the Partition Law states that;

3) The interlocutory decree and the final decree of partition entered in a partition action shall have the final and conclusive effect declared by subsection (1) of this section notwithstanding the provisions of section 44 of the Evidence Ordinance, and accordingly such provisions shall not apply to such decrees.

The powers of the Court of Appeal by way of revision and restitution in integrum shall not be affected by the provisions of this subsection.

Accordingly, although sub-section 3 of the above stipulates that the decrees under the Partition Law are final and conclusive, as for the proviso itself, the Court of Appeal can exercise its powers of revision