Waseela Umma V. Sally Et Al.,

1954 Present: Nagalingam S.P.J. and de Silva I.

S. WASEELA UMMA, Petitioner, and C. S. M. SALLY et al.,
 Respondents.

S. C. (Application) 214-D. C. Matara, 22,166.

Revision-Order of Supreme Court calling for record--Jurisdiction of lower Court thereafter to continue proceedings.

When, in an application in revision, the Supreme Court calls for the record of the proceedings in question, the Judge of the lower Court must forward the record immediately and has no jurisdiction to continue the proceedings ; a judgment or order pronounced by him thereafter in contravention of this rule is ultra vires.

APPLICATION to revise certain proceedings of the District Court, Matara.

H. W. Tambiah, for the 6th defendant petitioner.

Vernon Wijetunge, for the 1st defendant respondent.

Cur. adv. vult.

December 21, 1954. NAGALINGAM S.P.J.-

This is an application for the exercise of the powers of revision vested in this Court in regard to certain proceedings had in a partition action before the learned District Judge of Matara.

The petitioner who makes this application is the 6th defendant in the action. She was represented by a Proctor but no answer on her behalf was filed. On the date of the trial she was absent but her Proctor entered appearance on her behalf. She relies upon deeds to establish the claim that she is entitled to about l/5th of the land sought to be partitioned, but the deeds do not appear to have been in the custody of the Proctor on the date of the trial and in fact the Proctor for the 6th defendant, beyond entering appearance on her behalf, seems to have done little or nothing for her.

The plaintiffs' pedigree set out a devolution of title which allotted to the 6th defendant certain shares, and though the intermediate deeds were not produced by the plaintiffs, the 1st plaintiff did however produce the deed in favour of the 6th defendant and a perusal of that deed would have

shown that the 6th defendant had been conveyed the interests which the plaintiffs had allotted to the 2nd, 3rd, 4th and 5th defendants. Even the learned Judge's attention does not seem to have been called to the contents of the deed marked 6D1. That deed on a perusal would have disclosed the earlier deed on the basis of which title was conveyed and to which the plaintiffs in their pedigree had made reference. At the Conclusion of the trial the learned Judge reserved his judgment.

The petitioner explains her default at the trial has been due to her serious ailment about that period and on her recovery it was that she made this application to this Court to have the proceedings of the trial vacated and to permit her an opportunity of proving her claim. That the learned Judge himself could have given the petitioner no relief is obvious. An appearance had been entered by Proctor on her behalf and on the record at any rate there is nothing to indicate that she was in default and in fact, in law, she was not in default. What she seeks to set right by her application is the somewhat detrimental appearance put in on her behalf by her Proctor, although, no doubt, he did it in her best interests.

The application made by the petitioner came up before this Court and on the 29th May this Court ordered notice to issue and directed the record to be called for. On the 30th May the Registrar sent a letter to the learned District Judge calling for the record, but the record was not forwarded till the 16th June. Judgment had not been pronounced in this case at the date the letter of the Registrar calling for the record was received by the learned Judge, but he appears to have delivered judgment on the 12th June and thereafter forwarded the record.

An interesting question arises whether the learned Judge had jurisdiction to enter judgment after this Court had ordered notice on the parties and called for the record. I think it is axiomatic to say that it is the duty of every Judge of

Click Here to Read the rest of this document