LEELANANDA SILVA

VS.

CHANDRAWATHIE WIJESEKERA AND ANOTHER

SUPREME COURT
SISIRA J. DE ABREW J.
NALIN PERERA J.
PRASANNA JAYAWARDENA, PC. J.
SC HC CA LA APPLICATION No. 449/2014
WP HCCA KAL 128/2007(F)
DC KALUTARA CASE No. 6040/P
12.07.2016.

Violation of Rule 28 (5) of SC Rules 1990- Preliminary Objection- SC Rules 1990- Partition Suit- Failure to Name Party in Petition.

This is an order on a Preliminary Objection raised on date of support by counsel for Plaintiff- Respondent- Respondent that application made by 17th Defendant- Appellant- Petitioner, Violates Rule 28 (5) of 1990 and as such application to be dismissed.

This was a partition action, and Plaintiff filed action to partition a land in Waskaduwa. Learned District Judge entered judgment partitioning the land in the following manner. An undivided 7/12 share jointly to Plaintiff and 1st Defendant. Remaining undivided 5/12th share to 22nd to 25th and 29th Defendants. Building and crops upon the land to be allotted to the aforesaid parties according to their respective shares. The other Defendants and 13th defendant received no shares. 17th Defendant filed an Appeal in the High Court. The petition of Appeal filed in the High Court named Plaintiff and 1st defendant and omitted to name 2nd to 31st Defendant as Respondents. Preliminary Objection was raised in the High Court about the failure to name the parties as aforesaid. High Court upheld the Objection and dismissed the Appeal. Thereupon 17th defendant Appellant Petitioner filed petition dated 05.09.2014 seeking leave to appeal from the Supreme Court.

The 1st Defendant in the District Court who was also 1st Defendant Respondent in the High Court was not named as the Defendant- Respondent-Respondent, in the 17th Defendants aforesaid Petition filed in this Court when this matter was supported on 30th September 2015 learned Counsel for Plaintiff- Respondent raised the aforesaid lapse as an objection. The 17th Defendant replied submitting that an application was made to amend the caption on 24.11.2014 and submitted that the application was allowed. Thereafter the matter was fixed for inquiry.

Held:

1. In my view, the events as recorded in the Journal Entry of 24th November 2014 do not establish that, the 17th Defendant made a due and proper application to amend the Petition by the addition of Nilmini Renuka as a Respondent. Further, as I will explain in the next paragraph of this Order, I do not think the Journal Entry can be construed to mean that, on that day, the Court permitted the addition of Nilmini Renuka as a Respondent.

I am of the view that, in the aforesaid circumstances, the part of the Journal Entry which states 'Application to amend the caption is allowed. Any amendments to the caption should be made within one month of today' can only mean that, the Court gave the 17th Defendant an opportunity to tender an amended Caption subject to the right of the opposing parties to object to any amendment which was sought to be made and for the Court to, thereafter, make an Order on whether or not the proposed amendment should be permitted.

2. In these circumstances, I hold that, the amended Caption filed on 22nd December 2014 must be treated as having being tendered subject to the objections of the Respondents and that, since there has not been a subsequent Order of Court accepting the amended Caption, the 17th Defendant's Petition has not, up to now, been amended by the addition of Nilmini Renuka as a Respondent.

Accordingly, I hold that, at present, Nilmini Renuka is not named as a Respondent to the 17th Defendant's Application for Leave to Appeal.

3. Rule 28 (5) of the Supreme Court Rules, 1990 mandatorily requires that, in the 17th Defendant's Petition "...................there shall be named as respondents, all parties in whose favour the judgment or order complained against was delivered, or adversely to whom such appea