FARSANA

Vs.

MADANY

COURT OF APPEAL
NAWAZ, J.
CA/LA/02/2010
QUAZI COURT AVISSAWELLA247/T AND 248/T

Muslim Marriage and Divorce Act, sections 43, 44(2), 62(1)-Quazi Pronouncement of the Talaq-Board of Quazis-Per incuriam order Inherent powers to correct such order-Ex debito justitiae-Civil Procedure Code, section 839

The respondent instituted Talaq proceedings (247/T) against the appellant before the Quazi of Avissawella but this was later withdrawn as the parties agreed to live together. As the reconciliation did not take place, the respondent again filed fresh Talaq proceedings (248/T) before the same Quazi and the Quazi permitted the respondent to pronounce Talaq. The appellant filed a revision application before the Board of Quazis in respect of the order made in case No. 247/T and the Board of Quazis ordered fresh proceedings to be commenced before the Quazi of Ratnapura. Although there was no appeal against the order made in case No. 248/T, the Board of Quazis ex mero motu made the same order in respect of case No. 248/T. The respondent filed a revision application seeking to set aside the order made in case No. 248/T on the basis that it was an

order made per incuriam. The Board of Quazis allowed that application and the appellant appealed to the Court of Appeal against that order.

Held:

Failure to serve notice on the respondent and the concomitant contravention of the principle of audi alterm partem in respect of proceedings in case No. 248/T denuded the jurisdiction of the Board of Quazis. The order made in those circumstances would be null and void. The proceedings being void, the person affected can apply to have the same set aside ex debito justitiae in the exercise of the inherent jurisdiction of the court. The order made by the Board of Quazis rescinding the earlier order is correct.

Cases referred to:

1. Perera v. Commissioner for National Housing 77 NLR 361
2. Esabella Perera v. Emalie Perera Hamine [1990] 1 Sri LR 03
3. Mohamed v. Annamala Chettiar (1932) 12 CL Rec. 228
4. Sivapathalingam v. Sivasubramaniam [1990] 1 Sri LR 378 at 388
5. Roger and others v. Comptoir D'Escompote de Pari (1871) LR 3 PC465
6. Sirinivasa Thero v. Sudassi Thero (1969) 3 NLR 31 at 34
7. Salim v. Santhiya (1965) 69 NLR 490
8. Albert v. Veeriahpillai [1981] 1 Sri LR 110
9. Moosajees Ltd v. Fernando 68 NLR 414
10. Ehambaram and another v. Rajasuriya 34 CLW 65
11. Doraisami v. Annasamy Ayyar and others (1899) ILR 23 Madras 306
12. Ranmenikhamy v. Thisera (1962) 65 NLR 214
13. Abeysinghe v. Abeyweera [1995] 2 Sri LR 104
14. All Ceylon Commercial and Industrial Workers Union v. Ceylon Petroleum Corporation and another [1995] 2 Sri LR 295
15. Hettiarachchi v. Seneviratne (SC/127/94, SC Minutes of 04.07.1994)
16. Senarath v. Chandraratne Commissioner of Excise (SC/231/95, SC Minutes of 24.08.1995)
17. Selvedurai v. Raja (1940) 41 NLR 423
18. Jayaraj Fernandopulle v. De Silva and others [1996] 1 Sri LR 70
19. Ceylon Ceramics Corporation v. Premadasa [1984] 2 Sri LR 250

APPEAL from the Order of the Board of Quazis.

M. Yoosuf Nazar for the Petitioner (Appellant).

M.H.A. Raheem with M.M. Mohideen for the Respondent.

cur. adv. vult.

May 2, 2019

NAWAZ, J.

After leave was granted in this matter, both Counsel agreed that the appeal could be disposed of on the same oral arguments that were advanced in order to obtain leave. At the stage of the argument for leave, the matter was comprehensively dealt with by both Mr. Yoosuf Nazar and Mr. M.H.A. Raheem and I proceed to deliver the judgement based on the oral argument and the written submissions that have been filed.

The Applicant-Respondent-Petitioner-Respondent (hereinafter referred to as "the Respondent") and the Respondent-Appellant-Respondent Petitioner above named (hereinafter referred to as, "the Appellant") began to live at Ganithapura, Warakapola at the 'Respondent's house after marriage. Both sired a male child out of their wedlock. The Respondent after marr