IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Mohomed Rilvan Rizar Rafeek, No. 24/10, Fedrica Road, Wellawatta, Colombo 06.

Plaintiff SC APPEAL NO: SC/APPEAL/162/2018 SC LA NO: SC/HCCA/LA/63/2017 HCCA NO: WP/HCCA/MTL/63/04(F)

DC MT. LAVINIA CASE NO: 966/1997/L Vs.

Nimal Deshappriya Wickramasingha, No. 15, Church Road, Keselwatta, Panadura.

Defendant AND BETWEEN Nimal Deshappriya Wickramasingha, No. 15, Church Road, Keselwatta, Panadura.

Defendant-Appellant Vs.

Mohomed Rilvan Rizar Rafeek, No. 24/10, Fedrica Road, Wellawatta, Colombo 06.

Plaintiff-Respondent AND BETWEEN Nimal Deshappriya Wickramasingha, No. 15, Church Road, Keselwatta, Panadura.

Defendant-Appellant-Appellant Vs.

Mohomed Rilvan Rizar Rafeek, No. 24/10, Fedrica Road, Wellawatta, Colombo 06.

Plaintiff-Respondent-Respondent AND NOW BETWEEN Walgama Wilage Don Sanath Nandana, Winsant Lane, Wellawatta.

Petitioner Vs.

Mohomed Rilvan Rizar Rafeek, No. 24/10, Fedrica Road, Wellawatta, Colombo 06.

Plaintiff-Respondent-Respondent Before: Hon. Justice S. Thurairaja, P.C.

Hon. Justice A.L. Shiran Gooneratne Hon. Justice Mahinda Samayawardhena Counsel: J.M. Wijebandara with Dushmanthi Porogama for the Petitioner.

Hussain Ahamed with Ayanthri De Silva for the Plaintiff-

Respondent-Respondent.

Argued on: 23.01.2024 Written Submissions:

By the Petitioner on 14.02.2024 Decided on: 03.04.2024 Samayawardhena, J.

The plaintiff filed this action in the District Court of Mt. Lavinia against the defendant, seeking specific performance of the agreement to sell the land described in the schedule to the plaint. The defendant sought dismissal of the action. After trial, the District Court entered judgment for the plaintiff. On appeal, the High Court of Civil Appeal affirmed that judgment. This Court granted leave to appeal to the defendant against the judgment of the High Court. Before the case was taken up for argument, the defendant died. The petitioner, namely W.W.D. Sanath Nandana, made an application by way of petition and affidavit supported by documents marked X, X1-X4 seeking him to be substituted in place of the deceased defendant “to proceed with this appeal” on the basis that the defendant by Deed of Gift marked X4 gifted the land in suit to him subject to the outcome of the pending cases. The petitioner further stated that the defendant’s wife predeceased the defendant and they do not have children or legal heirs. The plaintiff objects to this application for substitution on the basis that (a) the deed X4 is a forgery and (b) the defendant did not have right to the land at the time of the execution of the deed. This order is regarding substitution pending appeal.

Substitution in the District Court is mainly governed by Chapter XXV of the Civil Procedure Code (sections 392-404). The Civil Procedure Code (Amendment) Act, No. 8 of 2017 simplified the complicated procedure regarding substitution by repealing sections 393 to 398 of the principal enactment and substituting them with new provisions, as well as amending section 27. The special feature of this amendment is to make it compulsory for each party to file a memorandum nominating at least one person and not more than three persons to be his legal representatives for the purpose of proceeding with the action in the event of his death pending final determination of the action. If the memorandum has not been filed, the steps stipulated in the said Chapter must be followed for substitution. The legislature introduced special provisions to simplify the substitution procedure in partition actions too by repealing and replacing section 81 of the Partition Law by the Partition (Amendment) Act, No. 17 of 1997. Strict adherence to these provisions by all District Judges could help save judicial time spent on substitutions.

Substitution in the Court of Appeal is governed by section 760A of the Civil Procedure Code.

760A. Where at any time after the lodging of an appeal in any civil action, proceeding or matter, the record becomes de