APPLICATION TO REVISE AN ORDER CONFIRMING SCHEME OF PARTITION- CONSIDERATION APPLICABLE
APPLICATION TO REVISE AN ORDER CONFIRMING SCHEME OF
PARTITION- CONSIDERATION APPLICABLE
CA
658/2003(Revision)
DC Negambo 2562/P
S.M.Anishiya Edith Rosa,
Vs
M.D. Calistus,
Before: A W A
Salam,J
Counsel: Dr Sunil
F A Cooray for plaintiff-petitioner and
M H B
Morais for the 7th
defendant-respondent
Argued on:
31.05.2010
Written
submission filed on: 28.06.2010
Decided on:
20.07.2010
A W Abdul
Salam,J.
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revision to have
the order dated 23 April 2002 confirming the he
plaintiff-petitioner has filed the present application in
scheme of
partition be quashed and set aside, in the exercise of the revisionary
jurisdiction and/or powers of restitution. The factual background relating to
this revision application begins with the partition action instituted by the
plaintiff-petitioner to partition the corpus among the parties. At the trial no
point of contests were raised as the parties entered into a settlement. The
terms of settlement were spoken to by the plaintiff-petitioner in the course of
her evidence. Accordingly, judgment was entered to partition the corpus in
terms of the settlement as directed by the interlocutory decree.
Later, in
executing the commission issued, the Commissioner drew up his final scheme of
partition bearing No. 52 dated 12.2.2002, after several opportunities granted
to consider the same, the learned district judge on 23.4.2002 confirmed the
scheme of partition bearing No 1830 when the parties jointly moved that it be confirmed.
The application
of the petitioner in this matter is mainly based on the ground of an alleged
mistake resulting from inattention on the part of the registered attorney of
the plaintiff-petitioner. As has been unfolded in the petition, the petitioner
maintains that her registered Attorney at Law directed his clerk to examine the
record and make a copy of the final plan and report which the latter is said to
have carried out. The copy of the scheme of partition thus made by the clerk is
attached to the petition marked as F. In other words the contention is that her
registered Attorney at Law was misled by the by the clerk into the belief that
it has been prepared by the Commissioner strictly in accordance with the
direction given in the interlocutory decree. As the copy prepared by the clerk
had been negligently drawn up representing a different picture than what had
originally been suggested by the Commissioner by his final scheme of partition
that was filed of record, the plaintiffpetitioner moves to have the impugned
order confirming the scheme of partition set aside.
The main
grievance of the plaintiff-petitioner is that in terms of the judgment and
interlocutory decree the common boundary between the two blocks that were to be
allotted to the plaintiff-petitioner and the 7th defendant-respondent should
have been the line obtained by extending
to the east of the drain found at the northern edge of the apron of the well found
at the South-West corner of lot 1, and accordingly the well, it's apron and
drain should have fallen within the block of land to be allotted to the
plaintiff-petitioner.
In terms of
section 36A of the Partition Act, an order confirming the scheme of partition
proposed by the surveyor, with or without modification is appealable with the
leave of the court of appeal first had and obtained. The plaintiff-petitioner
has admittedly not invoked the provisions of section 36A of the Partition Act.
On the contrary,
she has invoked the revisionary jurisdiction of this court but without
assigning any exceptional circumstances, acceptable to Court. The circumstances
relied upon by the plaintiff-petitioner to invoke the revisionary jurisdiction,
is based purely on the negligence of the registered Attorney-at-Law of the
plaintiff-petitioner and that of the clerk attached to his office. As has been
submitted by the learned counsel for the 7th defendantrespondent no application
for revision can be entertained by a Court if it flows from an act of
negligence on the part of a professional or his agent.
Revision is a
discretionary remedy and the conduct of the petitioner is intensely relevant
for the granting of such relief. (Perera vs People's Bank - Bar Journal (1995)
Volume IV part I page 12).
Noticeably, the
application for confirmation of the scheme of partition has been jointly made
by both parties. As such in the absence of any proof that a fundamental rule of
procedure, as set out in the Partition Act has been violated by the learned
district judge in confirming the scheme of partition, the question of
intervention by this court in the exercise of its revisionary powers does not
arise.
Besides, on the
face of the application itself, there has been an inordinate delay on the part
of the plaintiff-petitioner to invoke the revisionary jurisdiction. In terms of
the final decree entered in the case the scheme of partition proposed by the
surveyor has been confirmed on 23 April 2002. This revision application has
been filed on 10 April 2003. As such the plaintiff-petitioner is clearly guilty
of unaccounted laches.
For the foregoing
reasons, in my view, the revision application and the application for the
exercise of the powers of restitution are unable to be maintained and should
necessarily suffer such consequences which are adverse to the interest of the
petitioner. Hence, the petitioner’s applications are dismissed. There shall be
no costs.
Judge of the
Court of Appeal
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