ROMIYAL VS. WIJESENA

ROMIYAL VS. WIJESENA

COURT OF APPEAL
BASNAYAKE, J.
CHITRASIRI, J.
CA RV 1116/2006
DC MATUGAMA 2454/L
JUNE 12,13,2008
APRIL 29, 2009
MAY4, 2009

Revision - Duty of Court to ascertain whether any miscarriage of justice is caused - Power given to a Superior Court to act in Revision - Documents marked - Failure of Court to request party for return of same - Duty of Court regarding marked documents - Special circumstances - Article 138 of the Constitution -Constitution Article 138 proviso - Circumstances that shock the conscience of Court.

The appeal filed by the Plaintiff against the Judgment entered, was dismissed on the ground that, it was filed out of time. The Plaintiff moved in revision nearly after 4 months of the decision.

The Plaintiffs petition contained that, documents P3 and P4 had not been considered by the trial Judge and the non - consideration of P3 and P4 caused grave injustice to the Plaintiff It was contended that, Court should have requested the Attorney on record to tender the marked documents before writing the Judgment The defendant respondent contended that there are no special circumstances existing for the Plaintiff to have and maintain the revision application.

Held:

(1) In the revision application it is the duty of Court to ascertain whether any miscarriage of Justice is caused by non - consideration of contents of P3 and P4.

(2) The trend of authorities indicate that, unless the circumstances of a given situation "shock the conscience of Court", revisionary jurisdiction docs not lie to correct a decision of an original Court.

(3) The basis of the dismissal of the plaint was on the basis that the land in dispute had not been properly identified In the circumstances, on perusal of the evidence, it is clear that, the land claimed by the Plaintiff has not been identified - therefore, the documents marked P3 and P4 could not have helped to contradict the commissioner's evidence in order to identify the land claimed by the Plaintiff, it would have had no impact in coming to conclusion by him.

Held further:

(4) The trial Judge has failed in his duties by not making at least a request to the Attorney on record for the return of the documents marked P3 and P4.

(5) The issue at hand does not indicate any prejudice caused to the substantial rights of the parties to the action Article 138 of the Constitution - proviso -states - that no judgment shall be revoked or varied on account of any error, defect or irregularity which has not prejudiced the substantial rights of the parties or occasioned a failure of Justice.

APPLICATION by way of Revision against the Judgment of the District Court of Matugama.

Cases referred to:

(1) Vanik Incorporation Ltd. Vs Jayasekara -1997 2 SLR 365
(2) Mariam Beebe Vs. Seyed Mohomed - 1965 68 NLR - 36
(3) Soysa Vs Silva and others - 2000 2 SLR 235

S. N. Vijithsingh for the Plaintiff- Petitioner
Razik v Zarook PC with Rohana Deshapriya for the Defendant- Respondent.

July 9, 2009.
CHITRASIRI, J.

The Plaintiff-Petitioner (hereinafter referred to as the Plaintiff) filed action in the style of rei-vindicatio in the District Court of Matugama praying for a declaration that he is entitled to the property described In the Schedule to the plaint and also to evict the defendant therefrom. He has claimed damages as well from the defendant till the possession of the premises is handed over to him.

The Defendant-Respondent (hereinafter referred to as the Defendant) in his answer denying the averment in the plaint has stated that the premises referred to in the plaint is a part of a larger land which consists of 15 acres in extent. Trial in the District Court has commenced on 10th July, 2000 upon 12 issues being raised by the respective parties Learned Trial Judge thereafter, has recorded the evidence of two witnesses from each party totaling it to four and delivered the judgment on 31st October, 2002 dismis

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