PERERA

Vs.

SPECIAL EDUCATIONAL SOCIETY AND OTHERS

COURT OF APPEAL
SAMARAKOON, J.
KIRTISINGHE, J.
CA/Rl/1/2019
DC TANGALLE SPL/251/18
FEBRUARY 12, 2021

Restitutio in integrum-Additional condition in a settlement Justus error-Civil Procedure Code, sections 408, 91-Mistake of fact Essential and reasonable mistake-Imperative requirements-Finality of a consent decree

The petitioner had instituted two actions in the District Courts of Tangalle and Bandarawela for similar purposes. Thereafter, the parties negotiated with the view of reaching a settlement and it was concluded that the two pending cases were an obstacle to their effort to resolve the dispute amicably. Thus, when the relevant case came up in the District Court of Tangalle on 13.03.2018 the petitioner moved to withdraw it on the sole condition that the respondents undertook to withdraw their claim in reconvention in the Bandarawela case. Nevertheless, when the settlement was recorded in court, the Attorney-at-Law for the respondents introduced an additional condition and the Attorney-at-Law for the petitioner mistakenly expressed his agreement to this fresh condition proposed by the respondents. The petitioner did not at any stage instruct his Attorney-at-Law to consent to the additional condition and, although he signed the case record after recording such settlement, he was unaware and unable to comprehend that such a condition had been included in the settlement as he was blind.

The petitioner filed this application for restitutio in integrum to set aside/ vacate the settlement recorded on 13.03.2018 in the District Court of Tangalle and to restore the parties to the status quo ante or in the alternative to set aside/vacate the settlement pertaining to the additional condition recorded on that day.

Held:

1. The procedure adopted in this case in the District Court at the time the settlement was recorded does not satisfy the requirements of

section 408 of the Civil Procedure Code. Thus, even if the consent given by the counsel for the petitioner to include the disputed additional condition into the terms of settlement is not vitiated by a mistake of fact, the consent decree entered in terms of that arrangement will not attract the finality given to a decree passed under section 408 of the Civil Procedure Code.

2. Roman Dutch law enables a person to avoid an agreement or settlement due to mistake on his part when the mistake is an essential and reasonable one. In this case, the mistake is an essential one as it relates to the nature or subject matter of the settlement.

3. On a balance of probability of the evidence, one can accept the version of the petitioner that the Attorney-at-Law who represented him had acted contrary to authority, as the additional condition was not part of the agreement entered into between the parties and the Attorney-at-Law for the petitioner had consented to this additional condition purely by mistake.

4. The attempt to incorporate an additional condition shows that it was not part of the original settlement. Therefore, one can come to the conclusion on a balance of probabilities that the defendant respondents knew, or a reasonable person should have known, that a mistake was being made.

Cases referred to:

1. Cornelius Perera v. Leo Perera 62 NLR 413

2. Halib Abdul Cader Ameer v. Danny Perera [1998] 2 Sri LR 321

3. Phillippu v. Ferdinands 1892 (1) Matara cases 207

APPEAL from the Judgment of the District Court of Tangalle.

Sanjeewa Ranaweera with Malaka Palliyaguruge for the Plaintiff Petitioner.

lsuru Somadasa with Aruna Chithrananda De Silva for the 1st and 3rd Defendant-Respondents.

cur. adv. vult.

March 4, 2021

KIRTISINGHE, J.

The Plaintiff-Petitioner has filed this application for restitutio in integrum to set aside/vacate the settlement recorded on 13.03.2018 in the District Court of Tangalle and restore the parties to the status quo ante or in the alternative to set aside/vacate