Restitutio-in-Integrum is exceptional; demands actual damage; is not a vehicle to revisit unpalatable procedural outcomes absent prejudice.- Restitutio-in-Integrum (Article 138) — Boundary action — Compromise/settlement between plaintiff and 1st defendant — Co-owners (2nd & 3rd defendants) discharged — Section 839 CPC application to re-enter — Revision to HCCA — RII in the Court of Appeal — Threshold of “prejudice to substantial rights” under the proviso to Article 138 — Actual damage — Authority of attorney to compromise — Effect where settlement does not alter co-owners’ proprietary rights — Surveyor General’s plan and demarcation.

 

Court of Appeal of the Democratic Socialist Republic of Sri Lanka

 

Case: RII/0009/2024 — UVA/HCCA/BDL/RA 03/2022 — D.C. Moneragala L/2501

Bench: R. Gurusinghe, J; Dr S. Premachandra, J

Counsel: Chamara Nanayakkarawasam with Apoorwa Nanayakkara (for 2C & 3rd Defendant–Petitioner–Petitioner–Petitioners); P. D. P. Pathirage with J. Hissella, instr. by Nishantha Dias (for Plaintiff–Respondent–Respondent–Respondent) - Decided: 09.10.202.

 

BLOGGER'S NOTE

This matter concerns Restitutio in Integrum under Article 138 arising from a boundary action. The plaintiff and the first defendant entered into a compromise settlement, while the second and third defendants, who were co-owners, were discharged. The discharged co-owners sought to re-enter under Section 839 of the Civil Procedure Code, then pursued revision before the High Court of Civil Appeal, and finally invoked Restitutio in Integrum in the Court of Appeal. The Court considered whether the proviso to Article 138 required proof of prejudice to substantial rights and actual damage. It examined the authority of the attorney to compromise. It also evaluated the effect of a settlement that does not alter the proprietary rights of co-owners as reflected in the Surveyor General’s plan and demarcation.

 

Background & Procedural History

 

District Court (Moneragala) — L/2501: The plaintiff sued to demarcate boundaries between lands described in the 1st and 2nd Schedules and sought a permanent injunction only against the 1st defendant. No relief was prayed against the 2nd and 3rd defendants (co-owners with the 1st defendant). All defendants were represented by the same attorney. On 12.12.2018, the plaintiff and 1st defendant recorded a settlement based on a Surveyor General’s plan superimposing Lots 97, 98, and 100 (FVP 600). The 2nd & 3rd defendants were discharged. A further commission issued to demarcate the boundary in terms of the settlement.

 

Post-judgment applications in the DC: The 2nd & 3rd defendants moved under Section 839 CPC to re-enter; the District Judge refused by order 01.12.2021. 

Civil Appellate High Court (Uva) — UVA/HCCA/BDL/RA 03/2022: On 15.11.2023, the HCCA dismissed the revision. 

Court of Appeal — RII/0009/2024: The 2C and 3rd defendants invoked Restitutio-in-Integrum (RII) (and/or revision) under Article 138, seeking to set aside (i) the 12.12.2018 settlement (and any compromised decree), and (ii) the HCCA judgment of 15.11.2023.

Issues

Whether the settlement between the plaintiff and 1st defendant, recorded in the absence of relief against the 2nd & 3rd defendants, prejudiced the latter’s substantial rights as co-owners.

Whether the discharge of the 2nd & 3rd defendants, and alleged non-compliance with Sections 408 and 91 CPC (authority to compromise; party presence), vitiated the settlement.

Whether RESTITUTIO (an extraordinary remedy) lay where the petitioners failed to demonstrate actual damage and where the boundary demarcation followed the Surveyor General’s plan and did not take from or alter Lot 97 (the co-owned land).

 

The threshold under the proviso to Article 138(1): no reversal absent prejudice to substantial rights or failure of justice.

 

Submissions

Petitioners (2C & 3rd defendants)

As co-owners of the land in the 2nd Schedule (Lot 97), they argued the 1st defendant could not unilaterally compromise matters affecting co-owned property; their discharge occurred without consent.

The settlement offended Section 408 CPC read with Section 91 CPC (want of specific authority to compromise; absence of petitioners when compromise was recorded).

 Sought Restitutio in intergrum /or revision to set aside the 12.12.2018 settlement and the HCCA judgment.

Respondent (Plaintiff)

The plaint pleaded no relief against the 2nd & 3rd defendants; the settlement only demarcated the boundary between Lot 100 (plaintiff) and Lot 97 (defendants) in accordance with the Surveyor General’s plan; no land was taken from Lot 97; petitioners’ proprietary position remained intact.

 

RESTITUTIO IN INTERGRUM is exceptional; petitioners showed no actual damage, hence the Article 138 proviso barred relief.

Held (per Gurusinghe, J; Premachandra, J agreeing)

No prejudice to substantial rights / no failure of justice: The settlement did not alienate or diminish the petitioners’ co-ownership in Lot 97; it only demarcated the boundary with Lot 100 as per the Surveyor General’s plan; there is no allegation the plan or demarcation was inaccurate. Therefore, no substantial right was prejudiced.

RESTITUTIO IN INTERGRUM IS extraordinary; “actual damage” essential: RESTITUTIO IN INTERGRUM be granted only in exceptional circumstances; no restitution unless actual damage is established. Petitioners neither pleaded nor proved damage.

Article 138 proviso is a mandatory threshold: No judgment/order shall be reversed or varied for an error/defect/irregularity that has not prejudiced substantial rights or occasioned a failure of justice. Petitioners failed to cross this threshold.

Application dismissed with costs.

Principles of Law Emphasised

Restitutio-in-Integrum is exceptional; demands actual damage; is not a vehicle to revisit unpalatable procedural outcomes absent prejudice.

The proviso to Article 138(1) is mandatory: appellate intervention requires proof of prejudice to substantial rights or failure of justice.

Compromise/Settlement recorded on a Surveyor General’s plan that only demarcates boundaries and does not alter the co-owners’ proprietary quantum does not prejudice co-owners, even if they were not parties to the compromise recorded on that day.

Appellate restraint applies where the effect of the impugned act is neutral on the complaining party’s rights.

 Authorities Relied On / Discussed

 Sri Lanka Insurance Corporation Ltd v Shanmugam [1995] 1 Sri LR 55  restitutio is an exceptional relief; actual damage.

Pipps v Bracegirdle 35 NLR 302; Mudiyanse v Bandulahamy [1989] 2 Sri LR 383 — no restitution without demonstrable damage.

Hiniduma Dahanayakage Siripala v Attorney-General SC Appeal 115/2014, 22.01.2020 (Aluwihare PCJ) — Article 138(1) proviso: burden on the party seeking relief to establish prejudice/failure of justice.

Sunil Jayarathna v Attorney-General [2011] 2 Sri LR 91 

Judgment need not be reversed for non-prejudicial irregularity.

 

“What this Judgment Teaches” (Practice Note) 

Restitution in intergrum is not a back-door appeal. Unless tangible prejudice is shown, Article 138’s proviso shuts the door.

Co-ownership objections must be tied to effect. A settlement that merely records a boundary (per Surveyor General) and does not carve out or transfer co-owned land will not suffice to upset a decree.

 

Authority to compromise issues, even if plausible, are insufficient sans proof of prejudice/damage.

 

Plead and prove damage. Absent such pleading/proof, RII fails at the threshold.

 

Final Order 

Application for Restitutio-in-Integrum (and/or revision) dismissed with costs; HCCA order stands; DC settlement and boundary demarcation remain undisturbed; no prejudice / no failure of justice proved.

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