RANNAIDE
VS.
WIMALASOORIYA AND OTHERS (IN THE MATTER OF AN APPLICATION FOR RELISTING OF THE APPEAL)

COURT OF APPEAL
CHANDRA EKANAYAKE, J
SRI SKANDARAJAH, J
W.L.R. DE SILVA, J
CA 1015/1993 (F) (DB)
DC KURUNEGALA 267/L

Rei Vindicatio action - Judgment delivered in the Court of Appeal - Substitution - With the death of a party does the record become defective?- When the appellant

is dead-ls the judgment delivered bad in law- Should the case be relisted? What is nullity? Inherent powers of Court - Nunc protunc - Judgment absolute nullity­Could be redelivered - Coram Non Judice

The judgment was pronounced by the Court of Appeal on 13.01.2004. Parties were represented by Counsel - and it had not been brought to the notice of Court about the death of the original 1st plaintiff - appellant The petitioner on 24.03.2004 sought to substitute him In the room of the deceased 1st plaintiff­ appellant and the judgment delivered be pro forma set aside and the same judgment be re-delivered, as the bench was divided in their views a Divisional Bench was constituted and the matter was argued before the Divisional Bench - as order for substitution was made - arguments were confined to the application for relisting.

HELD:

(1) A decree of the Appellate Court passed in ignorance of the death of one of the parties during the pending of the appeal is a nullity and has to be set aside.

(2) When considering the facts and circumstances of the case it becomes amply clear that this was an instance where the judgment became void­ because it is against the law - when the Counsel had no status to appear for a dead party obviously it is against the principles of law and further when no substitution was effected that too becomes an instance clearly contrary to the provisions of Section 760- as such the judgment is an absolute nullity. It is non curable.

(3) A Superior Court has inherent powers to make corrections that would be required to meet the ends of justice. A Court Whose act has caused injury to a suitor has an inherent power to make restitution. This power is exercizable by the Court of Appeal as well as by a Superior Court.

Per Chandra Ekanayake, J.

"On the question whether the judgment could be redelivered - I conclude that a judgment which is an absolute nullity cannot be redelivered".

APPLICATION to have the judgment of the Court of Appeal redelivered.

Cases referred to:

1. Achchar Singh and others vs. Smt Ananti 1971 AIR - Punjab and Haryana 477

2. State of Panjab vs. Natha Ram AIR 1962 -SC 89
3. Swaran Puran Singh vs. Ramditta Baddhawa-1969-AIR Punj and Hav. 216
4. Rehmat vs. Mehar Ali Shah - 1970- Punj and Hav
5. Ganesharatham vs. Vivienne Goonasekera - 1984 - 1 Sri LR 319
6. lttepana vs. Hemawathie-1981 -1 Sri LR 476
7. Seneviratne vs. Francis Abeykoon 1986 - 2 Sri LR 1
8. Sivapathalingam vs. Sivasubramaniam 1990 - 1 Sri LR 378

Sanath Jayatilleke for 1st substituted plaintiff- appellant - petitioner.

Manohara de Silva PC for defendant - respondent.

Cur.adv. vult.

October 26,2007
CHANDRA EKANAYAKE, J

The 1st substituted plaintiff-appellant (hereinafter sometimes referred to as the substituted-plaintiff) had instituted the action bearing No. 267/L in the District Court of Kurunegala seeking a declaration of title to the land morefully described in the Schedule to the amended plaint dated 27 .01.1984, restoration of possession and damages as prayed for in the prayer therein while the action was pending 2nd defendant had been added and after an inter parte trial the reamed District Judge had pronounced the judgment on 01.09.1993 the 1st substituted plaintiff having preferred this appeal from the said judgment and same had been fixed for hearing on 13.01.2004. Same Counsel who represented both parties at this inquiry had represented both parties on 13.01.2004 also (the date of hearing of the appeal). This Court by its order dated 01.03.2004 had rejected the appeal on the ground