PENCHI AND OTHERS VS. SIRISENA AND OTHERS

PENCHI AND OTHERS
VS.
SIRISENA AND OTHERS

COURT OF APPEAL
WIMALACHANDRA.J
MARASINGHE.J
CALA 150/00 (LG)
D.C. KANDY 9898/P
OCTOBER 24, 2007

Partition Law 21 of 1977- Section 27[3]- Section 48[1]- Contesting defendants absent-Judgment/Interlocutory Decree entered - Contesting defendants challenged Judgment- That partition was restricted to one lot only- Objection overruled-Plaintiff not taking steps for over two years- Contesting defendants seeking dismissal of action - Applicability of Section 702 - Section 703 Partition Law No. 17 of 1997 - Amendment- Next step- Issue of commission-Whose duty? Actus curae nemineus gravabit- Evidence Ordinance Section 44

Plaintiff sought to partition Lots 1 and 2- but abandoned Lot 2. On the date of trial the defendant-appellants were absent, the attorney-at-Iaw had informed Court that he has no instructions. Judgment/Interlocutory Decree was entered. The defendant-appellants challenged the judgment on the ground that, the plaintiff cannot restrict the corpus to one lot. This position was rejected. The plaintiff did not take any action for over 2 years. The defendant-appellants moved the trial Court, stating that the plaintiff has not taken any steps for over 2 years and sought an order of dismissal of the action (S70). The application was refused. The defendant-appellants sought leave to appeal.

Held:

(1) Once Court enters Interlocutory Decree it is the duty of Court to issue the commission to partition the land in terms of Section 27 (3). It is not a step to be taken by the plaintiffs.

Per Wimalachandra.J

"When there is a delay in an action for not issuing the commission as in this case that cannot be attributed to the plaintiff. The maxim actus curae nemineus gravabit applies- Section 70 [2] is not applicable in the instant case".

(2) When a party affected by an ex parte order of which he had no notice he must apply in the first instance, to the Court which made the order to rescind same.

APPLICATION for leave to appeal with leave being granted.

Cases referred to:-

1. Gargial v. Somasunderam Chetty - 9 NLR 26.
2. Dingirihamy vs. Don Bastian - 65 NLR 549

Nihal Jayamanne PC with Uditha Collure and J.M. Wijebandara for 3, 6 defendant-petitioners.

Rohan Sahabandu with Piyumi Gunathilake for respondent.

Cur.adv.vult.

July 16,2008
L.K. WIMALACHANDRA, J.

This is an application for leave to appeal filed by the 3rd, 6th and 7th defendant-petitioners (hereinafter sometimes referred to as the defendants) from the order of the learned District Judge dated 8.6.2000. Leave to appeal was granted by this Court on 21.05.2001. Briefly, the facts as set out in the petition are as follows:

The plaintiffs filed these proceedings on 18.11.1981 to partition the land called Arembegedera-watte, which is morefully described in the schedule to the plaint. The case came up for trial on 21.10.1986. On that day the plaintiffs were present and they were represented by their Attorney-at-Law. However, the defendants were absent and the Attorney-at-Law appeared for the 4th to 9th defendants and had informed Court that he had no instructions from the defendants. Thereafter, the plaintiff led evidence of the witness called Simon and confined the evidence in respect of lot 1 in the preliminary plan and sought a decree to partition lot 1 and the claim in respect of lot 2 was abandoned. The Court pronounced the judgment in open Court, and the learned Judge made order that the interlocutory decree be entered according to the judgment and ordered to partition the land. Thereafter, the defendant filed a petition and affidavit and sought to set aside the judgment and the interlocutory decree on the ground that the plaintiffs have restricted the corpus only to lot one. After an inquiry the Court made order on

24.03.1987 rejecting the defendants' application to have the judgment and the interlocutory decree set aside. The defendant-petitioners

Click Here to Read the rest of this document