DICKSON PERERA

DICKSON PERERA

VS

NANDAWATHIE

SUPREME COURT
BUVANEKA ALUWIHARE, PC, J.
SISIRA J.DE ABREW.J.
H.N.J. PERERA, J.
SC HCCA LA 306/2013
WP/HCCA/AV/ 603/2008 [F]
DC HOMAGAMA NO. 1095/L
JULY 06, 2016.

Rei Vindicatio Action- Plaintiff directed to retransfer the property to Defendant by Appellate Court- Plaintiff died when matter was in appeal- Son Substituted-Plaintiff gifting the property before judgment in Appellate Court- Can the Plaintiff (substituted) maintain the application for leave to appeal? - Non disclosure- is it misrepresentation? - Civil Procedure Code S 760 (a)- Proper Person? -Locus Standi.

In the Rei Vindicatio action judgment was entered in favour of the Plaintiff N on 29.05.2002. The High Court set aside the judgement on 27.06.2013 and directed the Defendant to pay Rs. 150,000/- with interest to the plaintiff N and upon the payment the plaintiff was directed to retransfer the property to the defendant. The original plaintiff N died on 6.12.2007 the son as ah heir was substituted on 13.11.2008. However, the original owner gifted the property on 18.03.2005 to the grand child of the original plaintiff- E. This fact was not disclosed to the High Court. The substituted plaintiff sought leave to appeal from the said judgment of the High Court which set aside the District Court judgment.

On leave being sought it was contended that, the substituted plaintiff has no locus standi to move the Supreme Court. On the preliminary Objection raised,

HELD:

1. Original Plaintiff was alive when trial judge adjudicated that she is the owner. The need for substitution arose with the demise of the plaintiff in 2008 when the matter was still pending before the High Court. There was no change in the status of the parties up to the point, the issues raised in the trial court were adjudicated by the trial judge.

Per Buvaneka Aluwihare PC J,

"All what the District Court was called upon to consider was whether the adjudication was legally sound. If the cause of action survives after the death of a party, as in the instant case, the substitution is effected purely for the purpose of prosecuting the appeal and not for the adjudication of fresh matters or to decide the rights of the parties."

2. Section 760A of the Code gives the discretion to the court to decide, who in the opinion of the court is a the proper person to be substituted and the inquiry to determine a "proper person" under Section 760A is one to ensure continuation of the appeal after the change of status in the action and not to decide the rights of the parties.

3. There is nothing before this court to hold the view, that the substituted-Plaintiff -Respondent has any infirmity that makes him "unfit" to be substituted in place of the original plaintiff Jane Nona, to prosecute the appeal.

4. There is no material before this court to conclude that the non-disclosure of the conveyance of the property to Plaintiff was done with the intention of misleading the court.

APPLICATION for leave to Appeal from the Judgement of the High Court of Avissawella on a Preliminary Objection taken as to Locus Standi.

Cases Referred to:

1. Ekanayake and others Vs. Ratranhamy - SC Appeal 5/2010, SCM of 06.02.2012
2. De Silva Vs. Goonatilake 32 NLR 217
3. Silva v. Jayawardena 43 N.L.R 551
4. Careem V Subramanium and others 2003 2 SLR 197
5. Lawana Gunesekera v. Hemawathie Sahabandu C. A 476/95 (F)
6. Paramasivam and another v. Piyadasa and others CA135/99 (F)

Ranjan Suwandaraine for the substituted Plaintiff-Respondent- Petitioner.

Nishantha Sirimanne for the Defendant-Appellant-Respondent.

Cur.ad.vult.

March 23, 2017,

ALUWIHARE, P.C.J.

When this matter came up for support, the following preliminary objections were raised on behalf of the Defendant-Appellant-Respondent {hereinafter referred to as the Defendant)

(i) The Petitioner does not have the necessary locus standi to have and maintain this Application, es

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