ERROR COMMITTED BY THE D.J. SECTION 189- POWERS CONFERRED TO CORRECT SUCH MISTAKES

ERROR COMMITTED BY THE D.J. SECTION 189- POWERS CONFERRED TO CORRECT SUCH MISTAKES

DISTRICT JUDGE HAS CLEARLY COMMITTED A CLERICAL MISTAKE IN ALLOTTING SHARES IN HIS JUDGMENT. AS SUCH, THE PETITIONER OR ANY OTHER PARTY OR THE DISTRICT JUDGE HIMSELF SHOULD BE ENTITLED TO INVOKE THE POWERS OF COURT UNDER SECTION 189 OF THE CIVIL PROCEDURE CODE.
In the matter of an application for revision under Section 753 of the Civil Procedure Code and/or  Restitutio in integrum in terms of Article 138 of the Constitution of Sri Lanka.

            C.A. Rev.No.1567/2002
            D.C. Horana 5973/P

Malavipathirage Amarawathie Malani  alias
Amara Malani And 12 OTHERS
Defendant - petitioner
vs
Wijesinghege Jayantha
Plaintiff(deceased)
Amitha Neelamani Abeywickrama
Substituted-Plaintiff
Intervenient-Defendant-Respondents

Before: A.W.A.Salàm, J.
J.C.Weliamuna with J. Wijetunga for the 1 st
Defendant-Petitioner and Malin Rajapakse
for the Plaintiff-Respondent.
Written Submissions tendered on: 08.01.2004
Argued on: 11.10.2007
Original record was called for on: 05.03.2008
Original record was received on:  01.07.2008
Decided on:  08.06.2009

________________________________________

A.W.Abdus Salàm,J.

This is an application for revision, made by the 1st defendant-petitioner (hereinafter referred to as the "petitioner") to set aside and revise the judgment entered in partition proceedings No 5973/P dated 27 June 2001.
As narrated by the petitioner, the plaintiff (deceased) filed action to partition the land described in the plaint. According to the plaintiff, by virtue of a grant made by the State the original owner of the subject matter was one Barchchi Appu whose rights on the chain of title relied upon by the plaintiff devolved in the following manner.
1. Plaintiff-3/4 excluding an extent of 25 perches.
2. 1st defendant-petitioner-25 perches
3.  2nd defendant-1/4
Although it was common ground that Barchchi Appu was the original owner of the subject matter, the petitioner in her statement of claim denied the devolution of title as shown by the plaintiff. In turn she set up a competing devolution of title. According to the petitioner, undivided shares from and out of the corpus devolved on the parties in the following manner.
1. Plaintiff-64/112 sharers less 25 perches.
2. 1st defendant-petitioner-26/112 shares+ 25 perches
3. 2nd defendant-22/112 shares
The main point of contest that came up for determination was whether the devolution of shares shown by the plaintiff or the petitioner that should be given effect to in the action. At the commencement of the trial, evidence of the plaintiff was recorded without any points of contest but later the petitioner raised several points of contest. Thereafter, at the resumption of the trial, parties resolved all their disputes  after having recorded explicit admissions as to the manner of devolution of title and evidence was then led to give effect to the compromise reached. At the closure of the evidence of the plaintiff, the learned district judge was informed that there was no necessity to answer the points of contest raised at the trial, as the parties had resolved their differences whilst the plaintiff was giving evidence. Immediately thereafter the matter was fixed to tender schedules of shares. Upon the receipt of the schedules of sharers, the learned district judge delivered his judgment on 27 June 2001. According to the petitioner the learned district judge had pronounced and read out the judgment in open court on 26 July 2001 in the presence of the parties declaring the entitlement of shares in the following manner.
1. Plaintiff-undivided 64/112 share less 25 perches
2. petitioner-undivided 26/112 share + 25 perches
3. 2nd defendant-undivided 22/112 share

Being aggrieved by the judgment so pronounced, the plaintiff preferred an appeal by petition dated 22nd of August 2001, challenging the propriety of the judgment amongst other grounds that the decision was based on an erroneous list of shares submitted by the petitioner.
The petitioner has produced the petition of appeal preferred by the plaintiff marked as A 24. In the said petition the plaintiff categorically states that the learned district judge has erroneously adopted the schedule of shares prepared by the petitioner in determining the rights of the parties and sought by way of relief to have the judgment revised, incorporating the schedule of shares tendered by the plaintiff. However, for reasons best known to the plaintiff, the petition of appeal was sought to be withdrawn after the appealable period was over. For this purpose the plaintiff had submitted a petition and an affidavit which the petitioner had vehemently opposed. The petitioner states that she did not prefer an appeal and had no reasons do so, as the judgment pronounced in open court was in terms of the compromise reached in the case.
It is quite clear from the document marked as A 24 that by its judgment court declared the parties to be entitled to undivided shares from and out of the corpus in the manner of distribution of shares submitted by the petitioner. The very reason which influenced the plaintiff to prefer an appeal against the judgment and interlocutory decree was that the court had without any justification pronounced that the parties are entitled to undivided shares from the corpus in terms of the schedule of shares suggested by the petitioner.
It is significant to note that the petitioner too takes up the position that the judgment pronounced in court was based on the schedule of shares filed by the petitioner that was consistent with the evidence led at the trial and the compromise reached among the Parties. However to the surprise of the petitioner, she had later found out that the judgment dated 27 June 2001 was totally different from that was pronounced and read out when it was delivered in open court. According to the petitioner, the judgment which she had later realized as being totally different from the impugned judgment  had allocated shares to the parties in the following manner.

1. Plaintiff-undivided 3 roods 1.1 perches.
2. 1st defendant-undivided 25 perches
3. 2nd defendant-undivided 1 Rood 8.7 perches.

According to the petitioner when the plaintiff had filed a motion to withdraw the appeal, she had objected to the same on the premise that the judgment pronounced was the proper judgment and not the judgment which was filed of record.  This is quite evident from the fact that the petitioner has not elected to prefer an appeal against the judgment since she was not aggrieved by the judgment that was said to have been pronounced in open court.

It is quite surprising as to what made the substituted-plaintiff to file an application before the learned district judge on 5th September 2001, almost one month after the filing of the petition of appeal to withdraw the same, without assigning any reasons. As a matter of fact the impugned judgment by which the learned district judge declared the parties to be entitled to shares, as per schedule filed by the plaintiff is an obvious error which needs to be rectified by the district court. Quite unfortunately the district court has refused the application on the misapprehension that the learned judge who delivered the judgment has later been appointed as the secretary to the Judicial Service Commission and therefore cannot be assigned the task of correcting the judgment.

It is noteworthy at this stage to ascertain the evidence led at the trial with regard to the title. There was no contest with regard to the identity of the corpus and it was lots A , B and C depicted in plan No 3470 dated 24 April 1999 made by D M Athulathmudali, Licensed Surveyor is the crpus.

Admittedly, the original owner of the corpus was the State. There was no contest that the rights of the State had been transferred by way of a grant to Egodage alias Weerakoon Achchige Barchchiappu. It is common ground that the said Barchchiappu had transferred an undivided 1/2 share of his rights to one Martin Singho who died leaving as his legal heirs the widow and seven children. They are  kuruppu Arachchcige Alice Nona (widow) and Children by the names (1) Weerakoon Arachchge David (2) – do - Leelawathie (3) - do - Yasalin Nona (4) - do – Josalin Nona (5) - do -  Sapin Nona (6) - do -  - do -  Premawathie and (7) - do -  Dayawathie  . By P2 the legal heirs of Martin Singho had transferred their rights to Karunaratna Edirimanna who by P3 had transferred the same to one Malavi Pathiranage Siriyawathie. The said Siriyawathie having transferred an undivided 25 perches to the petitioner had conveyed the balance rights from and out of 1/2 share to the plaintiff. Accordingly the 1/2 of the rights of the original owner devolved on the parties in the following manner.
Plaintiff – undivided 1/2 – 25 perches
Petitioner - undivided 25 perches

The remaining undivided 1/2 share of the corpus of Barchchiappu had devolved on his children Panis, Dulinona and Diyonis who had died without marriage or issues. Thus the two children of Babappu, namely Panis and Dulinona had become entitled to an undivided 1/4 share each from the corpus.

The 1/4 share of the aforesaid Panis had devolved on his only child the aforesaid Martin Singho whose rights had devolved upon his demise on the aforesaid widow and the seven children. Thus the widow became entitled to an undivided 1/8 share by right of marital inheritance which had been transferred on P6 to the plaintiff and the 2nd defendant-respondent. Accordingly the plaintiff became entitled to an undivided 1/8 share and the2nd defendant-respondent to an undivided like share .

The remaining rights of Martin, namely an undivided 1/8 share had devolved on his children (1) Weerakoon Arachchge David (2) – do - Leelawathie (3) - do - Yasalin Nona (4) - do – Josalin Nona (5) - do -  Sapin Nona (6) - do -  - do -  Premawathie and (7) - do -  Dayawathie as aforesaid in the proportion of 1/56 share each. According to the evidence of the plaintiff appearing at page 2 of proceedings dated 19 February 2001, the rights of aforesaid David had devolved on the petitioner. Further as has been stated by the plaintiff at the same page the rights of Leelawathie, Yasalin Nona, Sapin Nona, Josalin Nona  and Premawathie had devolved on the petitioner. In terms of the said evidence of the plaintiff out of the remaining rights of  Martin (1/8 share) an undivided 6/56 share had devolved on the petitioner and the balance 1/56 being the share of Dayawathie has not been dealt in the evidence of the plaintiff. Therefore the petitioner from the source gets 6/56 shares and the balance 1/56 should be left unallotted.

From and out of the rights held by Dulinona (1/6 from paternal inheritance and 1/12 inherited from her brother Diyonis)  the petitioner had been given 1/12 share . The balance rights of Dulinona namely 1/6 share from paternal inheritance had devolved on her children Sugath Singho and the 2nd defendant. The rights of Sugath Singho have devolved on the plaintiff. Thus the rights of Dulinona have devolved on the parties as follows
Petitioner – 1/12 share
Plaintiff -    1/12 share
2nd defendant – 1/12 share

To comprehend the true spirit of the settlement, it is necessary to Peruse the evidence along with the compromise reached among the parties. Both the evidence of the plaintiff and the admissions recorded at the trial clearly show that the unambiguous intention of the parties was to distribute shares to them in the following manner.

1. Plaintiff – (1/2 less 25 parches) + 1/16 + 1/12 = 31/48 or 217/336.
2.  1st defendant (Petitioner)- ( 25 perches) + 1/56 + 5/56 + 1/12  =  4/21 or 64/336
3.  2nd Defendant -   1/16 + 1/12 =  7/48 or 49/336
4. Dayawathie (to be unallotted) 1/56 =  6/336

In terms of section 189 of the Civil Procedure Code, the court may at any time, either on its own motion or on that of any of the parties, correct any clerical or arithmetical mistake in any judgment or any error arising therein from any accidental slip or omission, or make any amendment which is necessary to bring a decree in conformity with the judgment. On a plain reading of section it is quite manifest that what has been contemplated under section 189 is to facilitate the correction of an arithmetical or clerical error by Court, and not by the very same judge who delivered the order or judgment.

The learned counsel of the petitioner has submitted that the prejudice caused by entering a judgment contrary to what was pronounced in open court is so grave that the petitioner has no other specific remedy and in that context it is the right of the petitioner to invoke the revisionary jurisdiction of this court to undo the harm caused to the petitioner resulting from the patent mistake.

In the circumstances it is my considered view that the judgment of the learned district judge should be revised to confer the parties the shares they should be entitled to, in terms of the evidence led at the trial subject to the compromise reached.
Hence, it would be seen that the learned district judge has clearly committed a clerical mistake in allotting shares in his judgment. As such, the petitioner or any other party or the district judge himself should be entitled to invoke the powers of court under section 189 of the Civil Procedure Code. This appears to be a classic case where the ends of justice have not been met as a result of an obvious variation, unconsciously made by the learned district judge disregarding the evidence of the plaintiff that has to be read together with the explicit terms of settlement arrived at among the parties.

Taking all these matters into consideration, this court directs the learned district judge to correct the schedule of shares given in the judgment, in order to render the same consistent with the evidence of the plaintiff read together with the compromise reached among the parties at the trial. In doing so the learned district judge is at liberty to exercise his discretion and correct the schedule of shares in the judgment and disregard the observations made by me with regard to the devolution of title observed in my judgment.

Subject to the above directions, I allow the revision application. The learned district judge shall take appropriate steps to give effect to this judgment and make the necessary corrections on being invited to do so by the petitioner or any other parties to the case.

The parties shall bear their own costs
Sgd.
Judge of the Court of Appeal
Kwk/-
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I do  hereby certify that the foregoing is a true copy of the judgment dated 08.06.2009 filed of record in C.A. No. 1567/2002.

Chief Clerk – Court of Appeal
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