Menchinahamy V. Muniweera Et Al.,

1950 Present: Dias S.P.J. and Gunasekara J.

MENCHINAHAMY, Petitioner, and MUNIWEERA et al., Respondents

Application 101-Application for revision or in the alternative for

Restitutio in integrum in S. C. 127-129 (D. C. Tangalle 4,445)

Partition action-Effect of order nisi being made absolute-Heirs of deceased party not added as parties-Restitutio in integrum-Circumstances when it will be granted-Proctor-Irregularity of acting in dual role of litigant and proctor.

In a partition action an intervenient disclosed the name of another necessary party, one N. In fact that party at that date was dead. When this fact was brought to the notice of the Court, notices issued on N's heirs to be added in her place. The Court issued an order nisi on N's son S and four other children of N to show cause why they should not be added. The order nisi was reported served and on the returnable date, they being absent, the Court made the order nisi absolute.

Held, that the effect of the order nisi being made absolute was that S and the other children of N were added as parties to the partition action.

Subsequently S died, but no steps were taken to have his heir, namely his widow and children, substituted in his place. The case proceeded to interlocutory decree which was upheld by the Supreme Court in appeal. Thereafter, S's heirs moved the Supreme Court by way of restitutio in integrum.

Held, that the interlocutory decree was irregularly entered and that the case should be sent back for S's heirs to be added and for investigation of the claims of S and the children of N.

The remedy by way of restitutio in integrum is an extraordinary remedy and is given only under very exceptional circumstances. It is only a party to a contract or to legal proceedings who can ask for this relief. The remedy must be sought for with the utmost promptitude. It is not available if the applicant has any other remedy open to him.

It is irregular for a proctor who is a party to a partition action to file proxy on behalf of one of the other suitors and appear in the case as proctor.

 APPLICATION by way of restitutio in integrum, or, in the alternative, application to revise the proceedings in a partition case in the District-Court. Tangalle.

H. V. Perera, K.C., with G. T. Samamwickreme and W. D. Gunasekara, for the petitioner.

S. J. V. Chelvanayakam, K.C., with A. L. Jayasuriya, for the lst-4th respondents (parties substituted in place of the plaintiff).

E. B. Wikramanayake, K. C., with Christie Seneviratne, for the 4th defendant respondent.

H. W. Tambiah, with S. Sharvananda, for the 146th defendant respondent.

C. Seneviratne, for the 3rd defendant respondent.

M. H. A. Aziz, with A. M. Ameen, for the 27th and 77th defendants; respondents.

Cur. adv. vult..

 December 13, 1950. DIAS S.P.J.-

This is an application by way of restitutio in integrum or in the alternative an application to revise the proceedings in D. C. Tangalle Partition. Case No. 4,445.

In this case the plaintiff through his proctor, Mr. D. A. Jayawickreme, who is also the 4th defendant to this action, sought to partition a land called Lot C of Punchihenayagama in extent 5861/2 acres.

It is clear from the proceedings that the person who carried this action through the Court was the 4th defendant. Six years after the action was filed the impropriety of a litigant being also the proctor for the plaintiff appears to have struck Mr. D. A. Jayawickreme who on February 28, 1945, revoked his proxy, and Proctor Mr. F. Dissanayake filed the plaintiff's proxy. Nevertheless it is clear from the subsequent proceedings that although Mr. Dissanayake was the plaintiff's proctor, it was the 4th defendant who was really acting for the plaintiff. For example, on May 1, 1945, Mr. Jayawickreme for the plaintiff moved that the un served notices lying in the case be re-issued for service. Again on July 26, 1945, Mr. Jayawickreme fo

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