Substitution- suppression- revision application-Maintainability

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Substitution- suppression- revision application-Maintainability

CA Appeal No. CA 1787/2003 
D.C. Kurunegala 829/P
         

Siri Amarasingha
Petitioner
Vs
P. Kumarihamy
Substituted plaintiff respondent and others.

Before: A.W.A. SALAM, J.
Counsel: Nihal Jayamanna PC with Ajith Munasingha for the petitioner and
Mahanama de Silva for the 7th defendant- respondent
Decided on 20.11.2008


 
Abdul Salam J.

This is an application made in revision by the petitioner to aside the order dated 2 September 1998 of the learned district judge.

The facts briefly are that the learned district judge delivered judgment on 11 July 1996 and directed that interlocutory be entered in the above partition action, to partition the corpus among the following parties in the proportion of the undivided shares indicated below.

1.          4th defendant, substituted plaintiff C.H.M.Pabawathie Kumarihamy Waduragala - 1/7 share.
2.          Original plaintiff, presently 1st defendant
C.H.M.Chandra Bandara - 1/7 share.
3.          3rd defendant, Soma Murial Waduragala - 1/7 share. 
4.          4th defendant, Dhanawathie Kumarihamy Waduragala - 1/7 share.
5.          5th defendant,       Sardha         Kumarihamy
Waduragala - 1/7 share.
6.          6th defendant C.H.M.Candrathilaka Bandara - 1/7 share.
7.          7th defendant Chandrakanthi Kumarihamy Waduragala - 1/7 share.

Subsequent to the entering of the interlocutory decree and before the conclusion of the partition action the 1st defendant has transferred by an irrevocable deed of gift bearing No 3394, all the rights he had inherited from his father and the rights acquired by virtue of deed Now 3387 to the petitioner.

Thereafter pending the termination of the partition action, the 1st defendant died on 21 March 1998 and three persons including the petitioner applied to have themselves substituted in place of the deceased 1st defendant. Consequently, an inquiry into the said applications for substitution had been held and the petitioner produced a power of attorney granted to him by the 1st defendant to prosecute the action on his behalf along with an affidavit to that effect and the deed No 3394 referred to above.

The learned district judge made the impugned order dated 2 September 1998 refusing the application of the petitioner for substitution on the grounds referred to therein and proceeded to substitute the 6th defendant on the basis that the 6th defendant had applied for letters of administration to administer the estate of the deceased 1st defendant. Thereafter final decree was  entered on 12 November 1999 and upon the application of several parties, the learned district judge then permitted the sale of certain lots, by his order dated 30 September 2002. 

The petitioner has filed the present application in revision nearly 1 near and 15 days after the order dated 30 September 2002 and four years after the order made in relation to the application for substitution.

It is interesting to note that the petitioner has filed an appeal (CA 29/2000 F) against the judgment and interlocutory decree entered in the partition action on 17 December 1999 and the same had been dismissed pursuant to an application made by the petitioner to withdraw the said appeal on 5 August 2003, reserving his right to vindicate his claims, in a civil court. The   Judgment and order, the petitioner seeks to assail in this revision application includes the judgment and interlocutory decree the petitioner challenged in the exercise of his purported rights of appeal in CA 29/2000 (F).

Quite surprisingly, the petitioner has suppressed the fact that he had appealed against the judgment and the interlocutory decree entered in the partition action in CA 29/2000 F and that he had withdrawn the said appeal, subject to the liberty of filing a civil suit to vindicate his rights.

The petitioner has also made the second application to the district court to have himself substituted in place of the deceased 1st defendant on 15 November 1999. This fact also has been suppressed by the petitioner in his application to this court for revision.

Quite apart from the fact that the matters averred in the revision application cannot give rise to any necessity to revise the judgment, interlocutory decree and the order impugned in these proceedings, the suppression made by the petitioner in his application, clearly shuts him out from invoking the revisionary jurisdiction of this court.

For the reasons stated above the application for revision cannot be maintained by the petitioner as is presently constituted. Hence, the revision application made by the petitioner is dismissed subject to costs.

Judge of the court of appeal




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