JANE NONA AND OTHERS VS. SURABIEL AND OTHERS

COURT OF APPEAL
CHITRASIRI J.
CA 499/98 & 499A/98
DC HORANA 231/P
MAY 28,2013
JUNE 3, 2013

Partition Law 21 of 1977 as amended by Act, No.17 of 1997 Sections 48, 81 - Substitution - Judgment delivered without substituting heirs - Some parties died whilst case was pending in the trial Court -Application to send case back to the trial Court for retrial - Refused - Was the decision given in Karunawathie Vs. Piyasena [S.C.] made per incuriam? - Starre Decisis.

Held:

(1) A decision per incuriam is one given when a case or statute has not been brought to the attention of Court and it was given in ignorance or forgetfulness of that case or that statute.

Per Chitrasiri J.

I have perused the judgment in Karunawathie vs. Piyasena carefully and could not find any reference therein to the provisions of Section 81 of the Partition Law 21 of 1977 as amended by Act 17 of 1997.

(2) It is clear that Section 48 of the Partition Law 21 of 1977 as amended by Act 17 of 1997 is drafted to ensure the final and conclusive nature of a decree in a partition action even if no substitution has been effected to represent a decreed party in such an action.

(3) With the introduction of new Section 81 by the Partition (Amendment) Act 17 of 1977 it is crystal clear that a judgment shall be deemed to be valid and effective and in conformity with the provisions of

the law and shall bind the legal heirs and representatives of such deceased party or person, despite the non-appointment a legal representative in place of deceased Party.

Per Chitrasiri, J.

"In the circumstances, if I may say so respectfully, that the decision in Karunawathie vs. Piyasena is not absolutely binding on the Court of Appeal since there had been a failure to consider specific provisions in the Partition Law in respect of non-substitution in the room of the deceased parties in partition actions."

Per Chitrasiri, J.

In the circumstances, this Court is entitled in law to consider the said decision in Karunawathie Vs. Piyasena was given per incuriam and accordingly to consider it as an exception to the application of the doctrine of starre decisis. This is absolutely, because the case law cannot overrule statutory provisions laid down by an enactment of the legislature".

APPEAL from the judgment of the District Court of Horana. - On an application to have the case remitted back to the District Court.

Cases referred to:

(1) Gamaralage Karunawathie Vs. Godayalage Piyasena-SC 9A/2010 - SCM 5.12.2011 - [not followed)-2012-BLR- 81

(2) V. P. Wiliam Singho Vs. I. V. Japin Perera and others - SCCALA 145/2011 - SCM 8'6'2012 [not followed)

(3) Young Vs. Briston Aeroplane Company Ltd - 1944. 2 All ER 293 at 300

(4) Government of A. P. and another Vs. B.Sathyanarayan Rao [deceased] Vs. L.R.S. Samad and others-2000 4 SCC-262.

(5) Alasupillai Vs. Yavetpillai-1949 39 CLW 107, 108

(6) Industrial Properties Ltd Vs. Associated Electrical Industries Ltd - 1977 QB 580

(7) Ramanathan Chettiar Vs. Wickramaaratchi and others - 1978 - 79 - [2] Sri LR 395 at 410.

(8) Kurunegala Estate Ltd Vs. The District Land Officer- BE/3528/ML 47 -SC 4 of 1976- CAM 1.4.1977

(9) Pathiwille Vs. The Acquiring Officer- BR/3325/CL-835 - SC 1/75 -SCM 1.5.1977

Dr. Jayantha Pathirana with D.D.P. Dassanayake for 15th - 24th defendant - appellants.

J.A.J. Udawatte with Sanjaya Kannangara for substituted plaintiff­ respondent.

Cur.adu.vult.

July 25, 2013
CHITRASIRI, J.

These two appeals have been preferred consequent upon the delivery of judgment in the action bearing No. 231/P filed in the District Court of Horana. It is an action filed to have the land called Delgahawatta which is morefully described in the schedule to the plaint, partitioned. learned District Judge, after a protracted trial made order to partition the said land having allocated shares to the parties, as specified in his judgment.

W