revision - the extent to which the conduct of parties is relevant - PARTITION- SCHEME

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revision - the extent to which the conduct of parties is relevant



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.

In the Court of Appeal of the Democratic Socialist   
                    Republic of Sri Lanka

CA 658/2003(Revision)
DC Negambo 2562/P

Sellappulige Mary Anishiya Edith Rosa,           131/4, St:Xavier’s Road, Hettigama, Jaela
Plaintiff-Petitioner
Vs 
Merannage Don Nimali Calistus,      
No 15, St:Xavier’s Road, Hettigama, Jaela
Defendant –Respondent
And others


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 Abdus Salam,J.
T
he plaintiff-petitioner has filed the present application in revision to have the order dated 23 April 2002 confirming the 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 jointlymoved 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 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 plaintiff-petitioner 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 defendant-respondent 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



AKN/- 

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