PARTITION- NON SERVICE OF SUMMONS- SHOULD THE ID BE SET ASIDE-CONSIDERATION APPLICABLE
PARTITION- NON SERVICE OF SUMMONS- SHOULD THE ID BE SET ASIDE-CONSIDERATION APPLICABLE
Failure to serve summons is a failure which goes to the root of the jurisdiction - Service of summons CONFERS jurisdiction TO RESOLVE THE DISPUTE. It is well settled law that judgments entered without service of summons is a nullity. However, the decision in the case of Ittapana cannot be said to apply to the facts of this case to justify the order of court setting aside the interlocutory decree. Salem Vs. Salim 69 NLR 492 EMPHASISES THAT a court of justice will not permit a suitor to suffer by reason of its OWN wrongful act and that it is under a duty to use its inherent power to repair the injury done by its own act. Sivapathalingam vs. Sivasubramaniam 1990 1 SLR 378 HAS LAID DOWN that a court whose act has caused injury to a suitor has an inherent power to make restitution. This power is exercisable not only by the Appellate Court but by the court which exercises original jurisdiction as well. FUNDERMENTAL VICE. F
CA Appeal No. 709/99 (F)
D.C. Kuliyapitiya No. 7135/P
Bulathsinghala Appuhamilage
Shavin Nona
Ehala Kadigamuwa,
Ehala Kadigamuwa (Postal)
4A Defendant-Appellant
Vs.
Pathiraja Mudianselage Karunaratne Wickramasinghe Pathirana,
Kallegegethara,
Athungahakotuwa
Plaintiff-Respondent
2. Hettikakanamlage Jayatilaka
Ehala Kadigamuwa,
Ehala Kadigamuwa (Postal)
3. Lanka Mudalige Wijerante Tharana uduwela.
Koswatta Junction (Postal)
4. Lanka Mudalige Wickramasinghe Tharana Uduwela
Koswatta Junction (Postal)
5. Wijesinghe Mudalige Jayasinghe Siriwardena,
Ehala Kadigamuwa (Postal)
6. Udugampolage Grace Fernando,
Kolinjadige (Postal), Wennappuwa.
7. Warnakulasuriya Arachchige Simon Markas Fernando
Potupitiya (Postal)
8. Madumi Susila Fernando Potupitiya (Postal)
Wadduwa North
9. Pacsha Silima Fernando
10. Kolinjadige (Postal)
Wennappuwa.
Before : A.W.A. SALAM,J.
Counsel : Asoka Gunawardana for the Plaintiff-Respondent and 3A Defendant-
Respondent
G.R.D. Obeysekera for the 4 A Defendant-Appellant
Written Submissions tendered : 4 A Defendants-Appellant – 23/1/2006
Written Submissions tendered : both Plaintiff-Respondent and 3A Defendant-Respondent - 21/3/2006
Argued on : 28.1.2005 and 11/2005
Decided on : 4/7/2007.
Abdul Salam,J.
The plaintiff respondent (hereinafter referred to as “the plaintiff”) instituted action, to partition the subject matter of the action, a month the 1st to 3rd defendant – respondents (hereinafter collectively referred to as “the defendants’) and himself. The defendants did not file any statements of claim and the trial proceeded exparte against them. The subject matter of the action, as per preliminary survey plan No. 1 139 dated 28.2.1984 made by W.C.M. Abeysekara licensed surveyor and commissioner of court, was identified as Lot 1, in extent 12 acres and 02 Roods.
At the trial the preliminary plan was marked as “X” and the report annexed to it as “Y”. At the conclusion of the trial the learned district Judge held inter alia that the corpus, as identified in X is in extent 12 Acres and 2 roods. Relying on the evidence of the plaintiff the leaned District Judge, allotted undivided shares in the following manner.
Plaintiff - 5 Acres 3 Roods
1st defendant - 3 Acres 3 Roods
2nd defendant ` - 1 Acre 0 Roods
3rd defendant - 2 Acres 2 Roods
__________________________________________
Total - 12 Acres 2 Roods
Accordingly, interlocutory decree was entered to partition the land
Depicted in plan ‘X’ and commission was issued to R.E.B Navaratne, Licensed Surveyor to partition the land, In terms of the judgment, the entire land sought to be partitioned, consisted of 2000 perches in extent as per plan X. The fractional shares equivalent to the specified undivided extent allotted to the parties should work out as follows. __________________________________________________________
Party Fraction allotted extent of undivided shares
__________________________________________________________
Plaintiff 920/2000 5 acres 3 roods
1st defendant 600/2000 3 acres 3 roods
2nd defendant 160/2000 1 acres 0 roods
3rd defendant 320/2000 2 acres 0 roods
____________________________________________________________
Total 2000/2000 12 acres 02 roods
____________________________________________________________
R.E.B. Navaratne, Licensed surveyor, reported his inability carry out the partition, as the physical extent of the land sought to be partitioned was 12 Acres and 37 Perches. The extent given in the preliminary plan No. 1139 was 12 Acres and 02 Roods. Even so, on a perusal of the case record it appears that R.E.B. Navaratne Licensed surveyor, has suggested a scheme of partition, proportionate to the undivided extent allotted to the parties in the interlocutory decree, taking the extent of the corpus as 12 Acres and 37 Perches. The scheme of partition made by R.E.B. Navaratne, Licensed Surveyor I 1198 dated 30th January 1987. According to the scheme of partition the allotments of land to be
Given to them varied in extent from the actual undivided extent of land, allotted in the interlocutory decree, as the corpus fell short of 1 rood and 3 perches, than what the parties intended it to be. The resultant position can be shown comprehensively in tabular form, with a view to make certain the problem confronted by the trial judge, as below.
Party
|
Extent as per
Interlocutory
decree
|
Fractional
Share as per I.D
|
Extent given in Scheme of Partition
|
Fractional Shares as per Scheme
|
Difference in extent
|
Plaintiff
|
5A–3R – 0 P
|
920/2000
|
5A-2R-21.6P
|
920/2000
|
0 A- 0R – 18.4P
|
1 Deft.
|
3A-3R-0P
|
600/2000
|
3A-2R-28P
|
600/2000
|
0A-0R-12.0P
|
2Deft
|
1A-0R-0P
|
160/2000
|
0A-3R-36.8 P
|
160/2000
|
0A-0R-3.20P
|
3Deft
|
2A-0R-oP
|
320/2000
|
1A-3R-33.6P
|
320/2000
|
0A-0R-06.4P
|
TOTAL
|
12a-2r-0p
|
2000/2000
|
12a-1R-0P
|
2000/2000
|
0A-0R-40 P
|
It would be seen from the above table that the entirety of the corpus was different in extent only by 1 rood and 3 perches as a result of the miscalculation of the extent of the land depicted in the preliminary plan. To avoid the confusion resulting from the discrepancy the commissioner who was entrusted with the task of dividing the land has put the matter right by determining the exte3n, 43 perches less than what has b been inadvertently shown in the preliminary plan. Taking undivided extent of the area allotted in the interlocutory decree to each party as being corresponding to 920/2000, 600/2000, 160/2000 and 320/2000 fractional shares, the commissioner R.B.M. Navaratne drew up a scheme of partition, suggesting the plaintiff 18.4 perches, 1st defendant 12.0 Perches, 2nd defendant 3.20 perches and the 3rd defendant 06.4 perches less than what they otherwise would have entitled to, under the interlocutory decree.
Nevertheless, the trial judge without taking into consideration the scheme of partition suggested by R.B. Navaratne licensed surveyor, on 9.9.1986, set-aside the interlocutory decree, following an application made by the plaintiff, on the basis that the division of the land was unfeasible due to the difference in the extent, which came to light in the course of the preparation of the plan of partition. In the same application, the plaintiff further requested for permission to rectify the extent inadvertently inserted in the preliminary plan as 12 acres and 2 roods to read as 12 acres and 37 perches. Pursuant to this W.C.M. Abeysekara licensed surveyor who carried out the preliminary survey submitted plan No. 1139 amending the extent to read as 12 acres and 37 perches. By this time he interlocutory decree entered in the case on 12.12.1984 had been r registered in the land Registry and a copy of it has been also forwarded to Court.[1]
Having thus entered the interlocutory decree declaring the entitlements of the undivided rights of each party to the land sought to be partitioned, the learned district judge proceeded to set-aside the same, on the basis that it is unfeasible to divide the land due to the erroneous calculation of the extent, totally disregarding the scheme of partition suggested by the Commissioner who had been called upon to divide the land, on the strength of the interlocutory decree.
The present appeal has been preferred by the 4th defendant appellant. (Hereinafter referred to as the appellant) The petition of appeal has been formulated mainly on two strong grounds. The first of such ground, relied upon by the appellant relates to the impropriety of the order made by the learned district judge setting aside the interlocutory decree at a stage when he was not sufficiently clothed jurisdiction to do so and the second ground is based on the non-production of an important deed through which the plaintiff derives title. It is the contention of the appellant that the order setting aside the interlocutory decree is a nullity and therefore the second trial and all what took place thereafter should be set aside.
As regards the second ground, it is submitted that the district Judge could not have possibly allotted any rights to the plaintiff by reason of the non-production of deed no. 3770 dated 6.6.1981 attested by S.M. Dhanapala, Notary Public, an important deed through which the plaintiff derives the plaintiff derives title.
With reference to the first ground relied upon by the plaintiff, it is appropriate to advert to section 48 of the Partition Act, which empowers the court to set aside or amend an interlocutory decree under certain specified restricted circumstances. For purpose of easy reference, section 48 of the Partition Act, in so far as is applicable to the present case is produced below.
48. (1) save as provided in sub section (5) of this section, the interlocutory decree entered under section 26 and final decree of partition entered under section 36 shall, subject to the decision of any appeal which may be preferred there from , and in the case of an interlocutory decree, subject also to the provision of sub section (4) of this section, be good and sufficient evidence of the title of any person as to any right share or interest awarded therein to him and be final and conclusive for all purposes against all persons whomsoever, whatever right, title or interest they have, or claim to have, to or in the land to which such decree relates and notwithstanding any omission or defect of procedure or in the proof of title adduced before the court or the fact that all persons concerned are not parties to the partition action.; and the right, share or interest awarded by such decree shall be free from all encumbrances whatsoever other than those specified in that decree.
The learned counsel of the plaintiff has submitted that the error appearing in the preliminary plan could not be attributed under any circumstances to the parties, since the preliminary plan has been prepared at the instance of the court. Counsel submits that the error can only be classified as an act of court and the parties should not be made to suffer its consequences. In this regard Counsel relies on the legal Maxim actus neminem gravabit (an act of court shall prejudice no man). To substantiate this argument he has cited the judgment in the case of ittapana Vs Hemawawathie reported in 1981 1 SLR 476, which laid down that he failure to serve summons is a failure which goes to the root of the jurisdiction and that it is only be service of summons the court gets jurisdiction over the defendant. It is well settled law that judgments entered without service of summons is a nullity. However, the decision in the case of Ittapana cannot be said ton apply to the facts of thi9s case to justify the order of court setting aside the interlocutory decree.
Learned Counsel of the plaintiff has also cited the case of Salem Vs. Salim 69 NLR 492 to impress upon the application of the proposition that a court of justice will not permit a suitor to suffer by reason of its OWN wrongful act and that it is under a duty to use its inherent power to repair the injury done by its own act.
In the case of Sivapathalingam vs. Sivasubramaniam 1990 1 SLR 378 it was held that a court whose3 act has caused injury to a suitor has an inherent power to make restitution. This power is exercisable not only by the Appellate Court but by the court which exercises original jurisdiction as well.
In my judgment the above authorities cited by the learned Counsel for the plaintiff, undoubtedly strengthen the argument that the trial court was sufficiently clothed with jurisdiction to correct its own mistake by setting it right its own arithmetical errors. Yet what is to be born in mind is that the power so conferred on the trial judge to correct a clerical or arithmetical mistake arising from any accidental slip or omission does not extend to the degree of setting aside its own judgment or decree. In the case of an interlocutory decree the prohibition against setting aside of its own decree has been viewed with a high degree of inflexibility both by the legislature and courts. The circumstances, in which the Distinct Court is empowered to set aside an interlocutory decree are spelt out under section 48(4) © (d), & (e) of the Partition Act. As such, the circumstance that arose in this case did not warrant nor did it empower the court to set aside the interlocutory decree.
Somawathie Vs. Madawala and others 1983 SLR Vol. 2 pages 15 is a landmark Judgment in which the Supreme Court referred to the extra ordinary powers of revision set aside partition decrees when it is found that the proceedings are tainted with what is known as fundamental vice. The judgment and interlocutory decree in this case are not tainted with any such patent defects, to take cognizance.
As revealed in this case, it has not given rise to a situation contemplated under section 48, © (d) & (e), to a set aside the interlocutory decree, as was done by the trial judge, in obvious violation of Section 48 of the Partition Act. In the circumstances, the order of the learned district judge setting aside the interlocutory decree cannot in law be allowed to remain.
As the second purported interlocutory decree entered by the trial judge should be deemed as never having been entered, the contention regarding the impropriety of the second interlocutory decree, arising from the non production of P1 at the abortive trial, does not arise for consideration.
For the foregoing reasons, the order of the learned district Judge dated 9the of September 1986, setting aside the interlocutory decree entered on 12th December 1984 is set-aside. Consequently, proceedings recorded from 19th July 1993, judgment and interlocutory decree both dated 24th August 1999 are also set aside. I make no order as to costs.
Sgd./Judge of the Court of Appeal.
NP/-
I do hereby certify that the foregoing is a true copy of the judgment dated 4th July 2007 filed of record in CA Appeal No. 709/99 (F)
Chief Clerk/Court of Appeal.
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