Sobhitha Rajakaruna J.

One Kariyawasam Majuwanage Gnanaratna (‘Plaintiff’) gifted his property in suit to his wife (‘1^st Defendant’), subject to his life interest, by way of the Deed of Gift No. 135 attested by K.A.P. Gunathilaka, Notary Public, on 28.07.1998. The 1^st Defendant, thereafter, gifted the said property to her daughter (‘2^nd Defendant’) from her first marriage, by way of the Deed of Gift No. 195 attested by K.A.P. Gunathilaka, Notary Public, on 23.02.2005. The Plaintiff instituted the action bearing No. L/270/09 in the District Court of Nugegoda (‘District Court’) against the said 1^st and 2^nd Defendants, praying inter alia that the said Deed of Gift No. 135 be revoked on the ground of alleged gross ingratitude by the 1^st Defendant. Additionally, the Plaintiff prayed that the said Deed No. 195 also be revoked on the basis that it had been attested fraudulently in favour of the 2^nd Defendant, while the Plaintiff was still in possession of the subject premises.

The Plaintiff passed away on 01.02.2011, after the 1^st and 2^nd Defendants had filed their Answers but before the initial Trial date in the District Court. Consequently, the Petitioner-Petitioner-Appellant (‘Appellant’) filed a Petition dated 28.11.2011 in the District Court, under Section 395 of the Civil Procedure Code (‘CPC’), to be substituted in place of the said Plaintiff. The Appellant is the son of the deceased Plaintiff from his first marriage. The learned District Judge on 06.08.2012 rejected the said application, stating that the case came to an end with the death of the Plaintiff, as it was an action in personam.

The Appellant filed a Leave to Appeal Application in the Provincial High Court of Western Province, holden in Mount Lavinia (‘High Court’), challenging the said order of the learned District Judge. The learned High Court Judge decided that the said District Court case was an action in personam and that the Appellant could not rely on the principle of litis contestatio. Accordingly, the High Court dismissed the application of the Appellant by its order dated 17.12.2024. The instant Application is filed in this Court impugning the said order of the High Court.

Questions of Law

This Court granted Leave to Appeal on the questions of law outlined in sub-paragraphs (i) to (v) of paragraph 19 of the Petition dated 28.01.2015. However, when this matter was taken up for hearing, the learned Counsel for the Appellant agreed that he would be satisfied if the Court answered the following questions described in paragraphs 19 (ii), (iii), (iv) of the same Petition:

(i) Has the Civil Appellate High Court of Mount Lavinia erred in law in holding that the original Plaintiff had died before the stage of litis contestatio, which the Court equated with the stage of raising of issues?

(ii) Has the Civil Appellate High Court of Mount Lavinia erred in law in holding that the rule of litis contestatio does not apply to actions based on gross ingratitude?

(iii) Has the Civil Appellate High Court of Mount Lavinia erred in law by failing to consider that litis contestatio coincides with the closing of pleadings?

Survivability of the Cause of Action vis-à-vis Action In Personam

It is noteworthy that the impugned orders in the District Court and the High Court arise from proceedings initiated through the Appellant's Petition dated 28.11.2011 filed in the District Court under Section 395 of the Civil Procedure Code (‘CPC’). Section 395 has been amended pursuant to the Civil Procedure Code Amendment Act No. 08 of 2017, which incorporated a mechanism enabling parties to an action to nominate their nominees to be substituted in the event of their death before the conclusion of the case. Sections 393 to 398 (both inclusive) of the principal enactment were repealed, and new sections were substituted. As such, the following provisions of Section 395, as they stood in November 2011, will apply to the instant Case:

“In case of the death of a sole plaintiff or sole surviving plaintiff the l