PREMAWATHIE AND OTHERS

Vs.

THILAKARATNE AND OTHERS

SUPREME COURT
DEHIDENIYA, J.
THURAIRAJA, J.
AMARASEKARA, J.
SC/HCCA/LA/119/2015
WP/HCCA/KT/4/2005 (F)
DC KALUTARA 6377/P
NOVEMBER 13, 2019

Supreme Court Rules 1990, Rules 4, 28(2), 28(5)-Failure to name substituted parties as respondents to the application-Defect is fatal

The defendant-petitioners are in breach of Rule 28(2) and 28(5) of the Supreme Court Rules 1990 as they did not name as respondents the substituted defendants for the deceased 7th, 23rd and 24th defendants in the leave to appeal application filed before the Supreme Court. In

terms of Rule 28(3), respondents are parties entitled to receive notice. Until notice is served, the court may not have jurisdiction to adjudicate over such parties. Thus, not naming the substituted 7th, 23rd and 24th defendants as respondents is fatal to the application. Section 759(2) of the Civil Procedure Code has no application.

Cases referred to:

1. L.A. Sudath Rohana and another v. Mohamed Cassim Mohamed Zeena and another (SC/HCCN/LA/111/2010, SC Minutes of 14.07.2010)
2. Jumburegoda Gamage Lakshman Jinadasa v. Pilitthu Wasam Gallage Pathma Hemamali and others (SC/HCCA/LA/99/2008, SC Minutes of 08.11.2010)
3. lllangakoon Mudiyanselage Gnanathilaka lllangakoon v. Anula Kumarihamy (SC/HCCA/LA/277/11, SC Minutes of 05.04.2013)
4. Ibrahim v. Nadaraja [1991] 1 Sri LR 131

APPEAL from the Judgment of the High Court of Civil Appeal of Kalutara.

J.A.J. Udawatte with Anuradha Pannamperuma and Ganga Wanigarathne for the 2nd, 4B, 5A, 8th to 12th, 14th, 15th, 18th to 20th Defendant-Respondent-Petitioners.

Athula Perera with Poorni Rupasinghe and Dimithri Wijesinghe for the Plaintiff-Appellant-Respondent.

cur. adv. vult.

October 21, 2021

AMARASEKARA, J.

Plaintiff-Appellant-Respondent (hereinafter sometimes referred to as the Plaintiff) instituted an action in the District Court of Kalutara by plaint dated 27.07.1997 praying for partitioning of the land called "Laulugahawatte Kebella" described in the schedule to the plaint amongst the Plaintiff (1157/2160 shares), 1st Defendant (90/2160 shares), 2nd to 3rd Defendants (504/2160 shares) and 4thto 5th Defendants (121/2160 shares). Learned District Judge by his judgment dismissed the action filed by the Plaintiff. Being aggrieved, the Plaintiff preferred an appeal to the Civil Appellate High Court and by the judgment dated 12.02.2015, the learned High Court Judges held in favour of the Plaintiff and decided to partition the said land allotting shares to the Plaintiff and the 5th Defendant giving

them 1208/2160 shares and 71/2160 shares respectively and leaving 881/2160 shares unallotted. The present application before this court is a leave to appeal application filed by the 2nd, 4(B) and 5(A), 8th to 12th, 14th, 15th, 18th to 20th Defendant-Respondent-Petitioners (hereinafter referred to as the Defendant Petitioners) aggrieved by the said judgment of the Civil Appellate High Court.

When this matter was taken up for support for leave to appeal before this court on 12.02.2016, learned counsel for the Plaintiff raised a preliminary objection to the effect that all the parties named in the Civil Appellate High Court are not cited as parties in the leave to appeal application and it is violative of Rule 4 and 28(5) of the Supreme Court Rules 1990. Thus, the parties were directed to file written submissions in this regard within two months from that date. However, it can be seen that the Plaintiff who took up the preliminary objection did not file written submissions within the given time even though the Defendant Petitioners filed their written submissions as per the said direction. Inquiry on the preliminary objection was rescheduled on many occasions due to various reasons and on behalf of the Plaintiff, written submissions have been tendered later on 07.11.2018. It should be noted that in these written submissions filed on behalf