Cornelius Perera V. Leo Perera

1960 Present : Basnayake, C.J., K. D. de Silva, J., and Sansoni, J.

CORNELIUS PERERA and others,  Appellants, and LEO PERERA,
Respondent

S. C. 103, with Application 346 - D. C. Pandura, 2808

Compromise of action-Consent order-Agreement caused by mistake of fact-" Mistake" -Appeal-Restitutio in integrum -Civil Procedure Code, ss. 91, 408.

In an action for a right of cartway across the defendants' lands, one of the contesting defendants (the 6th defendant) stated that a right of way to the plaintiff's land traversed across one D's land (lot 162). in cross-examination he denied that lot 162 was fully built on and persisted in asserting that it was a vacant land. After challenge and counter challenge were thrown out by the respective Counsel as to the correctness of the statement, it was agreed between the parties that if, on inspection by Court, the 6th defendant could not satisfy Court inter alia that lot 162 was a vacant land, judgment should be entered in favour of the plaintiff. On the next day, when the District .Judge inspected the land, Counsel for the 6th defendant stated that the 6th defendant had made a mistake of fact in stating that lot 162 was a vacant land.

The fact that the 6th defendant was mistaken was beyond question. He therefore sought to resile from the terms of agreement entered into on the previous day. The Court refused the application and entered judgment in terms of the consent order.

Held, that, on the ground of mistake, the consent order and the judgment based on it should be set aside.

Quaere, whether, in such a case, the remedy of the aggrieved party is by way of appeal or by way of an application for restitution in integrum?

APPEAL, with application for restitutio in integrum, from a judgment of the District Court, Panadura.

B. W. Jayewardene, Q. C., "with D. R. P. Goonetilleke, L. O. Seneviratne and B. E. P. Cooray, for 6th, 7th and 8th Defendants-Appellants in the Appeal and for 6th, 7th and 8th Defendants-Petitioners in the Application.

N. K. Choksy, Q.C., with D. C. W. Wickremasekera, for Plaintiff Respondent in both the Appeal and the Application.

D. R. P. Goonetilleke, for 1st and 2nd Defendants-Respondents in both the Appeal and the Application.

C. D. S. Siriwardene, with A. A. de Silva, for 4th and 5th Defendants Respondents in both the Appeal and the Application.

Cecil de S. Wijeratne., with J. V. M. Fernando and 4.. 4.. de Silva, for 9th Defendant. Respondent in both the Appeal and the Application.

Cur. adv. vult.

December 19, 1960. BASNAYAKE, C. J.

This is an action for a right of cartway. " The plaintiff sued the eight defendants for a declaration that he was entitled to a cartway over the lands described in paragraph 4 to 9 and 9a of the amended plaint filed on 20th April 1956, for damages, and for ejectment. He also prayed a right of cart way of necessity in the event of the Court holding that he was not entitled to a cartway by right of user. Although there were eight defendants the action was fought by the plaintiff on the one hand and the 6th and 8tll defendants on the other.

In the course of his evidence the 6th defendant said

". . . . I say that there is no right of way over my land to the pltff's land. The 1a.nd between the pltff's land and the duplication road belongs to Mrs. P. O. H. Dias. That land is not built upon. It is possible conveniently to have a roadway along the northern or southern boundaries of Mrs. P. O. H. Dias's land to lead to the pltff's land. I know Mr. Karunaratne's land. Mr. Kltrunamtne's land is to the south and abuts the plaintiff's land. There is It house built on this Iand I have been to the pltff'smnd through Mr. Karunaratne's land. There was a roadway leading to Mr. Karunaratne's house. "

In the course of his cross-examination plaintiff's counsel showed him town plan ID4 and in answer to his questions the 6th defendant said

" . . . This is a town Plan.

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