MULIN AND OTHERS

Vs.

SOMAWATHIE AND OTHERS

SUPREME COURT
PRIASATH DEP.PC.J
SISIRA J DE ABREW.J
UPALY ABEYRATHNE, J
SC APPEAL 162/2012
SC/HCCA/LA/77/2012
WP /HCCA/ KAL/125/2004 (F)
D.C./HORANA/3449/P
09.08.2016

PARTITION - Section 773 of the Civil Procedure Code - Section 187 CPC - Trial De Novo

This is a partition case. Extent of land as in the schedule to the plaint was 2 acres. Trial proceeded on 52 issues. After trial District Judge dismissed the Plaintiffs case without answering the issues.

Being aggrieved by the District Court Judgment Plaintiff appealed to the Civil Appellate High Court, and the High Court set aside the District Court Judgment and directed the learned District Judge to deliver a fresh Judgment on the evidence already led.

HELD:

01. The High Court is correct in law concluding that the said judgment of the learned District Judge should stand dismissed. Also, the order of the High Court to remit the case back to the trial court for a delivery of fresh judgment of the evidence already led is bad in law. Hence, the said judgment of the High Court is varied by setting aside the said portion, namely; "refer to a fresh judgment by the learned District Judge basing on the evidence already adduced at the trial." Trial denovo ordered. If the parties are willing to adopt the evidence already led, the learned District Judge is directed to adopt the evidence already led and to proceed with the trial from that point onwards. Parties are at liberty to adduce further evidence if necessary.

APPEAL from the judgment of the Civil Appellate High Court.

Case referred to:-

1. Dona Lucihamy v Cecilianahamy 59 NLR 214

2. Warnakula Vs. Ramani Jayawardena (1990) 1 SLR 206

Chandana Premathilake with Y. Liyanage for the 26th, 27th and 30th Defendant Respondent Appellants

Sarnanth Vithana H. Mendis for the substituted Plaintiff Appellant Respondent

S.A.D.S. Suraweera for the 4th, 6th, 14th and 17th Defendant Respondent Respondents

Cur.adv.vult

JUNE 29, 2017
UPALY ABEYRATHNE. J

The original Plaintiff instituted an action in the District Court of Horana against the Defendant Respondent Respondents seeking to partition a land called Bomaluwe Godella containing in extent of 02 acres as described in the schedule to the plaint. 04th and 17th Defendants, 6th Defendant, 7Ato 13th Defendants, 26th, 27th and 30th Defendants, 30th Defendant and 43rd Defendant have filed separate statements of claims seeking to partition the said land as averred in their statements of claims.

Accordingly, the case proceeded to trial on 52 issues. At the end of the trial, the learned District Judge has dismissed the Plaintiffs action without answering the said 52 issues framed by the parties.

Being aggrieved by the said judgment dated 23.09.2004 the substituted Plaintiff Appellant Respondents (hereinafter referred to as the Respondent) preferred an appeal to the Court of Appeal. Said appeal was heard and concluded by the High Court of Civil Appeal of the Western Province holden at Kalutara and the High Court by its judgment dated 23.09.2004 has set aside the said judgment of the learned District Judge directing him to deliver a fresh judgment on the evidence already led. In addition, the High Court has concluded that the District Judge may hear additional evidence if necessary, in order to arrive at a reasonable conclusion.

The 26th 27th and 30th Defendant Respondent Appellants (hereinafter referred to as the Appellants) sought leave to appeal to this court from the said judgment of the High Court and leave was granted on the questions of law set out in paragraph 18(i), (ii), (v) and (vi) of the petition dated 29.02.2012.

At the hearing of this appeal, it was contended before this court that the High Court has no power upon hearing an appeal to direct the trial judge to deliver a fresh judgment upon the evidence already led in the case. I first deal with this question of law raised at the he