IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Mohammed Faiys Mufeez Arfath, No. 48, Kankanamgoda Road, China Fort, Beruwala.

Plaintiff-Judgment Creditor-

Respondent-Respondent-Appellant SC/APPEAL/148/2023 WP/HCCA/KAL/REV/31/2018 DC KALUTARA L/5805 Vs.

Selladore Pathmanathan, No. 48, Kaleel Place, Kalutara South.

Also No. 151/1, Dam Street, Colombo 12.

2nd Defendant-Judgment Debtor- Petitioner-Petitioner-Respondent Mohammed Saleem Mohammed Siyam, No. 179, Hill Street, Kalutara South.

1st Defendant-Judgment Debtor-

Petitioner-Respondent-Respondent Before: Hon. Justice P. Padman Surasena Hon. Justice Mahinda Samayawardhena Hon. Justice Arjuna Obeyesekere Counsel: Nizam Kariapper, P.C. with Nizam Ilham Kariapper for the Appellant.

J.A.J. Udawatta with Anuradha Ponnamperuma for the Respondent.

Argued on: 05.11.2024 Written Submissions:

By the Appellant on 06.03.2024 By the Respondent on 11.12.2024 Decided on: 05.03.2025 Samayawardhena, J.

The plaintiff-Judgment Creditor-Respondent-Respondent-Appellant (appellant) instituted this action in the District Court of Kalutara by plaint dated 23.04.2010 against the 1st Defendant-Judgment Debtor- Petitioner-Respondent-Respondent (1st defendant respondent) and the 2nd Defendant-Judgment Debtor-Petitioner-Petitioner-Respondent (2nd defendant respondent) seeking inter alia declarations (a) that he is entitled to a ½ share of the land described in the schedule to the plaint including the boutique room bearing assessment No. 531 standing thereon by Deed No. 1980 dated 04.10.1996, and (b) that Deed No. 1397 dated 13.02.2010, executed by the 1st defendant respondent in favour of the 2nd defendant respondent, is a nullity. The 1st defendant respondent filed answer seeking inter alia the dismissal of the plaintiff’s action. The 2nd defendant respondent did not file answer and the case was fixed for ex parte trial against him. The 1st defendant respondent’s source of title originates from the final partition decree entered in 1994 in partition case No. P/5880 filed in the same District Court. The appellant admitted this in the plaint but contended that the final decree entered in the said partition decree is a nullity, as it had been obtained fraudulently.

Halfway through the trial, the case was fixed for ex parte trial against the 1st defendant respondent as well. When the case came before the new District Judge on 27.03.2014 for further ex parte trial, five lines of evidence were led before the new Judge, who immediately thereafter delivered the ex parte judgment dated 27.03.2014 granting all the reliefs sought by the plaintiff in the prayer to the plaint with costs. The ex parte judgment in this complicated case, where the plaintiff inter alia challenges a partition decree, reads as follows: “මෙමෙයවන ලද සා්᭜ි ො ඉදිරිපත් කරන ලද මේඛන සලකා බලා පැමිණිේමේ නඩුව පිළිබඳව සැහීෙකට පත් මවමි. ඒ අනුව නඩු ගාසතු සහිතව විත්ියට එමරහිව පැමිණිේමේ වාසියට නඩුව තී්᭠ු කරමි. ඒ අනුව තී්᭠ු ⷁᮅකාශය්᭜ ඇුලත් කර්᭠න.” There can be no doubt that the District Judge, rather than carefully examining the pleadings, issues raised, and evidence led at the inter parte trial and ex parte trial, mechanically entered decree for the plaintiff granting all the reliefs sought without even considering the specific reliefs claimed by the appellant in the plaint.

Upon service of the ex parte decree, the defendant respondents made an application to purge their default but this was rejected by the District Judge by order dated 05.05.2016. Thereafter, the writ was executed on 16.10.2017. The defendant respondents filed an application before the District Court seeking to recall the writ but this was also refused by the District Judge by order dated 22.01.2018.

The 2nd defendant respondent then filed a revision application before the High Court of Civil Appeal in Kalutara on 02.07.2018 seeking to set aside the ex parte judgment of the District Court and the subsequent orders made based on that ex parte judgment. After hearing both parties