086-NLR-NLR-V-77-K.-A.-MIDIYANSE-Appellant-and-R.-A.-T.-PUNCHI-BANDA-RANAWEERA-Respondent.pdf
Mudiyanae v. Punchi Banda Ranaweera
501
Present: Udalagama, J., Vythialingam, J. and
Katwatte, J.
K.A. MUDIYANSE, Appellant, and R. A. T. PUNCHI BANDARANAWEERA, RespondentS. C. 68-69/70—D. C. Kegalla 17622/P.
Partition action—Failure to appeal against incidental order—Order goesto root of action—Appeals only after delivery of judgment—Preliminary objection that the appeal is out of time—PartitionAct Sections 19, 25, 63, 79—Civil Procedure Code Section 85.
In a partition action the 1st defendant though served withsummons and had ample opportunity to file his statement of claimfailed to file his statement of claim. After the case was fixed fortrial but about six weeks before the date of trial the 1st defendanttendered to Court his statement of claim on 13.2.70. The trial Judgemade order rejecting the statement of claim as no explanation wasgiven for the default. The 1st defendant did not appeal against thisorder nor did he renew his application to have his statement ofclaim accepted on the date of trial. The case proceeded to trialand judgment was delivered on 26.3.70. A preliminary objectionwas taken that the 1st defendant’s appeal was really against theorder rejecting his statement of claim and since that order wasmade on 13.2.70 the appeal filed on 9.4.70 was out of time.
Held by Vythialingam J. and Ratwatte J. (Udalagama J.dissenting) that a party aggrieved by an order made in the courseof the action, though such order goes to the root of the case, hastwo courses of action open to him, namely (a) to file an interlocu-tory appeal or (b) to stay his hand and file his appeal at theend of the case even on the very same ground only on which hecould have filed his interlocutory appeal. “ If he adopts the lattercourse he cannot be shut out on the ground that his appeal beingagainst the incidental order is out of time ”.
The applicability of Section 85 of the Civil Procedure Code topartition action is discussed.
Per Udalagama, J.—
A party aggrieved by an order made in the course of the actionand which goes to the root of the case must appeal against suchorder, if dissatisfied with it, within the stipulated time. He cannotwait to do so till the end of the trial.
Obiter :
Where all the possible claimants to the property are manifestlybefore court no higher standard of proof should be called for indetermining the question of title, than in any other civil case.
Where a defendant fails to file or cause to be filed a statementof claim together with an abstract of the devolution of title, hewill not be permitted to raise any distiute contained in any avermentin the plaint except with the leavy j^jcourt.
A PPEAL from a judgment o? ^ie^Elistrict Court, Kegalla.
N. Senanayake, for the 1st de^cyrct^J-j-appellant in S. C. 69/70.
D. R. P. Goonetilleke, for the^fij-vF defendant-appellant inS. C. 68/70.
K.Thevarajah with S. G. Wijesekra for the plaintiff-
respondent in both appeals.
Cur. adv. vult.
502
UDALAGAMA JMudiyanse v. Pun-chi Banda Kanaweera
March 21, 1975.
Udalagama, J.—The plaintiff-respondent brought this action topartition the land called Puwakgahawalakadahena in extentabout 3 pelas paddy sowing, averring inter-alia, that the1st defendant-appellant had no title whatsoever to the said land,but was disputing the plaintiff’s titie thereto. Summons wasissued on the defendant-appellant returnable for 21.4.66, on whichdate, it was represented to Court that summons on the 1st defen-dant-appellant was served. On 21.4.66 proxy was filed on behalf ofthe 1st defendant-appellant. On 20.7.66 the case was called forstatement of claim of the 1st defendant-appellant, but itwas not filed. Thereafter seven-dates were given to the 1stdefendant-appellant to file his statement of claim, besides ■the several dates when the case was called for the returnof the surveyor’s plan and etc., and finally on 15.7.69the case was called ( it was by then over 3 years afterthe proxy of the 1st defendant-appellant was filed) andtrial fixed for 26.3.70. Thereafter on 13.2.70 Proctor for the1st defendant-appellant tendered an answer on behalf of the1st defendant claiming priority over the plaintiff-respondent’sdeed No. 2576 of 22.11.29 (P3). The learned District Judge rejectedthe statement of claim of the 1st defendant, as the 1st defendanthad not given an explanation for his default. The 1st defendant-appellant did not appeal against this order or even renew hisapplication to have his answer accepted, on terms, on the trialdate, although he was represented by Counsel. The case wasthereafter heard by the learned District Judge and judgmentdelivered on 26.3.70. On 9.4.70 the 1st defendant filed, petition ofappeal against the order of the learned District Judge dated
rejecting his statement of claim. At the hearing of thisappeal, Counsel appearing for the plaintiff-respondent took up apreliminary objection, that the 1st defendant-appellant’s appealwas out of time and that it be rejected.
a
Counsel for the 1st defendant-appellant submitted that he wasentitled to wait till the end of the case and see whether he wouldbe given his due share and theh appeal if necessary, because theJudge was under an obligatioft under the Partition Act to investi-gate the title of each of. the parties, before he declared therespective parties entitled to scares in the land. The fallacious-ness of this argument beChthfesW^parent when one examines thepetition of appeal filed b^fjiherilst defendant-appellant in thiscase. His prayer is not that the learned District Judge had failedto examine his title and give him his due share but that thejudgment and the interlocutory decree be set aside and he bepermitted to file his statement of claim. Clearly his appeal, is
UDALAGAMA J.—Mudiyanse v. Punchi Banda Banaweera
503
from the order of the learned District Judge dated 13.2.70rejecting his statement of claim. Without setting aside the judge-ment, there would be no meaning in allowing him to file hisstatement of claim. It was not Counsel's contention, that he hadno right to file an interlocutory appeal from the order of 13.2.70,but that at the end of the case if the 1st defendant-appellant’srights had not been preserved, he had a right of appeal. Theorder of 13.2.70 was not an incidental order, but an order whichwent to the root of the 1st defendant-appellant’s claim. Probablythis argument may have had a semblance of validity had theplaintiff in his plaint or any of the other defendants in theiranswers given the 1st defendant-appellant a share and the 1stdefendant-appellant without filing answer had appeared onsummons and accepted the share. In the instant case the 1stdefendant-appellant had no alternative but to file an answerif his claim was to be investigated. In the absence of his answer,what further investigations could the learned Judge have em-barked on ? In 52 N. L. R. 44 Gratiaen, J. held :
“ When in a partition action all possible claimants to theproperty are manifestly before Court, no higher standard ofproof should be called for in determining question of titlethan in any other civil suit ”.
All the claimants to the property were manifestly before thelearned District Judge and on the evidence led in this case hehas determined the title to the land. I cannot share the viewthat the learned Judge had failed in his duty in regard to theinvestigation of title to the land. With the rejection of 1stdefendant’s answer, his claim to any share in the land was lost.If he chose to pursue the matter, he should have appealed againstthe order of 13.2.70. I would hold that it is too late for him towait till the end of the case to do so.
My brother Vythialingam, J., drew my attention to the case ofCatherina vs. Jamis 73 N. L. R.—49 where Chief Justice H. N. G.Fernando held that :
Where a case is fixed for trial on a particular date and thatdate is declared a public holiday, Section 8 (2) of the Inter-pretation ordinance does not. render the next working dateautomatically the due date of trial, and therefore where apartition case is fixed for trial on a particular date and thatdate is declared a public holidaySection 24 of the PartitionAct read with Section 25 requires the Court to give noticeto the defaulting defendant of the date fixed for the trialof the case.
504
UDALAGAMA J.—Mudxyanae v. Punchi Banda Ranaweera
I do not think there could be any disagreement with the learnedCmef Justice on this ruling, but in the course of his judgment hestates,
“ In the case of the Partition Act however, there is noprovision which corresponds to Section 85 of the Code, andthat Section will therefore apply only if Section 79 of thePartition Act can be said to bring it into application on theground that there is a situation o£ a casus omissus.
The Partition Act, while it entitles the defendant to file astatement of claim and requires him to file a list of docu-ments on which he proposes to rely, does not declare thata party may not prove his rights at the trial unless he haspreviously filed a statement of claim and a list of documents.If for instance a defendant relies solely on prescription,there is no provision in the Ordinance which expresslyprevents him from, eading evidence at the trial to establishhis right
I find myself in complete disagreement with these observationsof the learned Chief Justice. In a partition case there is no doubtthat a duty is cast on the trial Judge to investigate title to theland and find out who are the parties entitled to shares in theland. Hence, to that extent, there is no quesion of a partitionaction being heard ex-parte. The Judge is entitled to call uponthe plaintiff to prove the title of those parties to whom he hasgiven shares. It is for this reason, among others, the plaintiff isgiven the costs of all documents of the defendants produced byhim under Section 20 of the Act. When a defendant fails to filehis answer and prove his title at the trial the plaintiff is under anobligation to do so, if he accepts the position that the particulardefendant is entitled to shares in the land, and there is no contestin regard to his rights. Under Section 19 (1) (a) of the Act anydefendant who disputes any everment in the plaint relating tothe devolution of title must file or cause to be filed in courttogether with his statement of claim, an abstract of the devolu-tion of title with reference to pedigree, which shall be attachedto the abstract. It necessarily follows from this provision thatwhere a defendant fails to file or cause to be filed a statementof claim together with an abstract of the devolution of title, hewill not be permitted to raise any disputes contained in anyaverments in the plaint. This prohibition arises in consequence ofthe default of the defendant. In such a case my view is thatSection 85 of the Civil Procedure Code applies to the extent thatuntil the defendant purges his default he would not be entitled asa matter of right to take pajrt in the proceedings and dispute anyaverments in the plaint. Section 79 of the Partition Act letsin the Civil Procedure Code in the case of a casus omissus in theAct. In the Partition Act there is no Section analogous to Section
UDALAGAMA J.—Mudiyanse v. Punchi Banda Ranaweera
505
85 of the Civil Procedure Code. If the statement of the learnedChief Justice, that there is no provision in the Act to prevent adefendant, for instance relying solely on prescription, from lead-ing evidence at the trial to establish his right without having fileda statement of claim is correct, it is my view, with my experiencein the original courts, it would open the door to defaulting partiesto spring surprises on parties with Judges helpless in controllingproceedings. The Partition Act was enacted after careful consi-deration to obviate unnecessary delays and prolongation of pro-ceedings. If parties are to be allowed to come on the trial date,and raise contests without first having filed statements of claim,which the other parties have had no notice of, one could imaginethe chaos that would result! In the instant case the 1st defendantin his rejected statement of claim has raised a contest with theplaintiff that his deed by virtue of prior registration must prevailover the plaintiff’s deed. Now if this is allowed to be raised atthe trial without a statement of claim being filed, could theplaintiff have m6t it ? Obviously not. Is the plaintiff who hadfiled his pleadings, taken out summons on witnesses, filed list ofdocuments and etc., and diligently got ready for the trial, to bedeprived of meeting this contest ? Surely not. I have discussedthis question of whether a party has a right to come to courtand dispute a plaintiff’s title, without having filed a statementof claim because it was contended by the defendant-appellantthat he could have taken part in the trial without having filed astatement of claim and waited till the end of the trial to appealagainst the judgment of the learned District Judge, in the eventof his not having been given a share in the interlocutory decree.
In the instant case the 1st defendant-appellant should haveappealed against the order of the learned District Judge dated
within the prescribed time. He has failed to do so. Hisappeal is rejected with costs payable to the plaintiff-respondent.
Let the appeal of the 3rd defendant-appellant, now, be listedfor argument in due course.
506
VYTHIALINGAM, J.—Mudiyaiise v. Punchi Banda Ranaweera
Vythialingam, J.
I have perused very carefully the judgment of my brotherUdalagama, J. but regret very much that I have the misfortuneto disagree.
There are two appeals in this case—No. 68/70 being by the3rd defendant-appellant against the interlocutory decree as ithas allotted no shares to him and has also allotted a greater shareto the plaintiff than he was entitled to and the other by the 1stdefendant No. 69/70. When the matter came up for argumentlearned Counsel who appeared for the plaintiff-respondent inboth appeals took up the preliminary objection that the appealof the first defendant was not competent as it was out of time.This is the matter which is the subject matter of this order andthe appeal of the 3rd defendant need not concern us any moreas it has still to be set down for argument.
Summons was served on the first defendant on 21.4.1966 and hisproxy was filed on that date. Thereafter the case was called onvarious dates for different purposes and the journal entries showthe statement of claim from the first defendant as being due onsome of those dates. Ultimately on 15.7.1969 summons wasreported served on 2B defendant. Apparently he was also the 4thdefendant and he is said to have abided by the statement of claimalready filed by him. The journal entry also shows that thestatement of the 1st and 2nd defendants were not filed and thecase was set down for trial on 26.3.70. Thereafter on 13 2.70 theproctor for the first defendant tendered the statement of claim ofthe first defendant with notice to proctor for the plaintiff and the3rd and 4th defendants and moved that the same be accepted.
The Judge rejected the statement of claim as no explanationwas given for the default. The case then proceeded to trial on
and although the first defendant was represented byCounsel he took no part in the proceedings. Interlocutory decreewas ordered to be entered and the first defendant filed thisappeal on 9.4.1970. Although the journal entries record the fact,that the statement of claim was due from the first defendant onseveral dates yet not on one single date was the case postponedsolely because of the failure of the first defendant to file hisstatement of claim. The case had of necessity to be postponedbecause some necessary and essential step had not by then beentaken such as the failure to serve summons on parties substitutedin place of a party who was dead, or because a fresh commissionwas issued at the instance of the 3rd and 4th defendants and wasnot executed on a number of dates.
VYT HI AXING AM, J.—Mudiyanae v. Punchi Banda Kanaweera
507
It was on 15.7.1969 when summons was served on the 2Bdefendant apart from the fact that the first defendant had notby then filed his statement of claim, that the case was ripe fortrial. So that it can hardly be said that the first defendantwas responsible for the case dragging on from 21.4.1966 till15.7.1969. However, even if the learned trial Judge was of theview that the first defendant was guilty of unreasonable delayhe might have considered whether this was not an appropriatecase in which he ought to have acted under section 63 (1) ofthe Partition Act. That section provides that “ It shall belawful for the Court at any stage of a particular action to orderany party to give security for costs if the Court is of opinionthat the party has been guilty of unreasonable delay in*presenting or prosecuting his claim or for other good and. sufficient cause ”. (The emphasis is mine). Or in the alter-native he could have ordered prepayment of costs undersub-section 3 of that section.
Moreover the first defendant’s statement of claim was presentedabout six weeks before the date of trial and no further steps suchas the addition of new parties or the taking of a fresh surveywas necessary as a consequence of his statement of claim. Thetrial could very well have proceeded on the date fixed for it.There was sufficient time for the plaintiff to meet the claim andno one would have been prejudiced by the acceptance of thestatement of claim. Indeed the journal entry of 13.2.70 does noteven show that anyone even objected to the acceptance of thestatement of claim. Rejecting a party’s statement of claimwithout giving the party the benefit of the provisions of section63 of the Partition Act is a very serious matter in a partitioncase, as it might mean the loss of his rights in the land for everor it might entail him in serious disabilities in proving his claimor establishing his rights.
However it is unnecessary for the purpose of the present orderto decide whether the defendant was really in default or whetherhis statement of claim was rightly rejected. That remains to bedecided at the main appeal. I am content for the present purposeto assume without conceding it, that the first defendant was indefault and that in the absence of an explanation for this defaultthe statement of claim could have been rejected. The learnedCounsel for the plaintiff-respondent submitted that the firstdefendant’s appeal was really against this order rejecting hissatisfactory if I fix the quantum to* be paid for the period ofappeal filed on 9.4.70 nearly two months later was out of time.
In his petition of appeal the first defendant states that he isentitled to a 1/3 share of the land by virtue of deed No. 2.1029
508
VYTHIALINGAM, J.—Mudiyanse v. Punchi Banda Ranaweera
dated, 28.1.1929, which deed is from the identical personAppuhamy from whom the plaintiff himself claims title to thisone-third share on a latter deed No. 2576, dated, 21.11.1929. Thefirst defendant’s position is that his deed is entitled to prevailover that of the plaintiff both because it is earlier in point oftime and because of prior registration. He also stated that he wasold and infirm and therefore unable to file his statement of claimbefore the case was fixed for trial. He therefore prays that thejudgment be set aside and that he be permitted to file his state-ment of claim.
It is important to note that he asks that the judgment and notthe order of 13.2.70 rejecting his claim be set aside, apparentlyon the ground that he had not been given an opportunity to provehis claim at the trial, which as I shall show presently he couldvery well have done, this being a partition action. The fact thathe also asks that he be given an opportunity to file his statementof claim does not alter the position. However, even assumingthat the appeal is on the ground that his statement of claim wasrejected his appeal is not out of time because the relevant datefrom which the time has to be calculated is not the date of theorder but the date on which the interlocutory decree wasentered which was the 26th March, 1970.
The real question for decision therefore is whether a party whois aggrieved by an incidental order can be penalised for beingout of time if he does not file his appeal within the appealabletime from the date of that order but instead files his appealonly after the case has been finally decided. I know of norequirement of law and none has been cited to us at the argu-ment which binds the person aggrieved by an incidental orderin the course of proceedings in an action to file an appeal againstthe order or which says that he would be shut out on the groundof his being out of time if he waits to file the appeal, evensolely on that ground, at the close of the case as a whole.
A Judge makes several incidental orders of this nature in thecourse of an action, and one can well visualise the chaos thatwould result if there must be an appeal against such orders*within the appealable time from the date of the order. A judgemay make orders allowing an amendment of the plaint or answeradding or striking out parties, accepting or rejecting issues,allowing or rejecting documents, admitting or rejecting evidence,permitting or refusing to allow witnesses to be called and so on.If then the party has to appeal against such orders within theapoealable time from that order then this court would be floodedwith such appals, sometimes several times in the course of oneaction, and the chances of any case being concluded within areasonable time after its institution are indeed very remote.
VYTHIAI/CNGAM, J.—M-udiyan&e v. P unclii Banda Ranaweera
509
That is why this Court has always discouraged appeals againstincidental decisions when an appeal may effectively be takenagainst the order disposing the matter under consideration at afinal appeal. But where of course, the point, as in this case isnot a mere incidental matter, but goes to the root of the casean interlocutory appeal is convenient, especially if it wouldprevent a party being shut out and thus obviate a second trialrequiring his participation. A party so aggrieved, however, stillhas two courses of action : (1) to file an interlocutory appeal or,(2) to stay his hand and file his appeal at the end of thecase even on the very same ground only on which he could havefiled his interlocutory appeal. If he adopts the latter course hecannot be shut out on the ground that his appeal being againstthe incidental order is out of time. It might well be that in spiteof the incidental order against him he might have still succeededin the action.
In the case of Thamotherampillai vs. Ramalingam (34 N. L. R.359) the plaintiff as the joint manager of a Hindu temple claimeda declaration that the first defendant was not entitled to a rightof way over the courtyard of the temple. At the conclusion ofthe case the District Judge held that the plaintiff could not main-tain the action without obtaining a vesting order. But he saidin his order “ Let the case be mentioned on the 27th instant. Ifby that time the plaintiff has taken steps under section 112 of theTrust Ordinance, this case will be laid by till after the resultsof his steps. If no such steps are taken on or before the 27th theaction will be dismissed with costs This order was made on15.2.1929 and the defendant did not appeal against the order.Thereafter the plaintiff had apparently obtained his vestingorder and judgment was entered in his favour on 18.6.1931 andthe defendant appealed and succeeded on the ground thatthe plaintiff could not cure this defect in title by obtaining avesting order after the action was instituted.
In other words, it was held that at the conclusion of the earlier^proceedings the Judge should have entered judgment dismissingthe action and not given him an opportunity to cure the defect inhis title. The appeal of the defendant was virtually against thatorder. Objection was taken that the defendant should haveappealed against the order of 15.2.1929 without waiting till theplaintiff had obtained his vesting order, and the Judge had deli-vered his later judgment dated 18th *June, 1931 in which he dealtwith all the other issues in the case.
Dealing with this objection Garvin, J. said at page 361, “WhileI agree that this is an order which is appealable and from whichit might perhaps have been as well for the defendant to have
510
VYTHIALTNGAM, J.— M<- ijianse v. Punchi Banda Banaweera
appealed at the first instance, it remains to be consideredwhether the defendant has deprived himself of his right to appealfrom the consequences of this order, merely because he did notdo so at a time at which he might have entered an appeal hadhe been so minded. A party is not of course, bound to appealfrom every interlocutory order and has the right to exercise hisright of appeal upon all points when the proceeding in the Courtbelow is determined by a final judgment The appeal in thatcase being virtually against the order made on 15.2.1929 washopelessly out of time when filed after the final judgment on18.6.1931.
Even where an interlocutory appeal is rejected on sometechnical ground or on the ground that it was not competent forthe party aggrieved to take the matter up by way of interlocu-tory appeal and without an adjudication on the merits of theappeal such a party would not be barred from taking up the verysame point in an appeal after the case has been finally decided.Such a case was the case of Balasubramaniam vs. ValliappanChettiar (39 N. L. R. 553). In that case the defendant filed aninterlocutory appeal (No. 51) against an order refusing to per-mit him to lead parol evidence on certain issues. The case pro-ceeded to trial thereafter and judgment was entered for theplaintiff. The defendant appealed against that judgment also onthe identical ground. Both appeals were heard together and theinterlocutory appeal was rejected on the ground that stamps tothe correct value had not been tendered together with the peti-tion of appeal and also on the ground that no interlocutoryappeal lay against the admission or rejection of evidence only.
Nevertheless the main appeal was considered and allowed.Keuneman, J. in the course of his judgment said at page 559, “Ido not think, however, and no authority has been cited to us toshow that we are precluded from dealing with this point in thefinal appeal No. 286. The interlocutory appeal, in my opinion,being an appeal against the rejection of evidence merely, was inany event, wrongly constituted .. But in any case, the rejection,of interlocutory appeal No. 51 cannot be said to be an adjudica-tion on the points raised in that appeal and I think we are entitled
to consider those points in the final appeal No. 286 If the
question of the wrongful rejection of evidence had been the onlypoint in the appeal the case would have to be sent back for anew trial. ” The appeal however was allowed because the defen-dant succeeded on another point. If the contention here advancedthat the appeal is out of time is valid then the final appeal in thatcase would have had to be rejected on that ground. Nevertheless
VYTHIALLNGAM J.—Mudiyansc v. Punchi Banda Ranatveera
oil
the court went on to decide the final appeal in favour of thedefendant and said that if that had been the only point in thecase they would have had to send the case back for a new trial.
The case of Fernando vs. Fernando, 8 C. W. R. 43 was a caseon which an interlocutory appeal was rejected as being out oftime. The very same ground was urged on an appeal against anorder setting aside a sale and it was held that it was open to theappellant to raise the point by way of appeal. Bertram, C. J. said“ Mr. J. S. Jayawardena argued that it was impossible for thispoint to be taken on the appeal because it was originally taken asa preliminary objection and though an appeal was lodged againstthe decision of the District Judge on the preliminary objectionthat appeal was rejected as being out of time. Ke maintained•therefore that it was not open to the appellant to raise the pointby way of appeal against the order which the District Judgefinally made disposing of the subject. I do not think that thatis a sound point. It is contrary to the general principles observedin this Court which discourages appeals against incidental deci-sions when an appeal may effectively be taken against the orderdisposing of the matter under consideration at its final stage. ”
Although this Court discourages interlocutory appealsnevertheless there may be cases in which an interlocutoryappeal may be filed against an incidental order and would beentertained by this Court. The true position was explained byGratiaen, J. in the case of Girantha vs. Maria (50 N. L. R. 519)where he said at page 521, “ The correct view appears to be thatalthough this Court undoubtedly has jurisdiction to entertaininterlocutory appeals of this nature, the attitude of the Court indisposing of such appeals must necessarily depend on the cir-cumstances of each case. The main consideration is to securefinality in the proceeding without undue delay or unnecessaryexpenses. On the one hand, therefore, this Court would always* discourage appeals against incidental decisions when an appealmay effectively be taken against the order disposing of the matterunder consideration at a final appeal * (per Bertram, C. J. supra)I do not think that either Keuneman, J. or Poyser. J. in Bala-Subramaniam vs. Valliappa Chettiar (supra) intended to laydown any principle of wider application than this. ”
“ Cases may well arise, however, ” he continued, “ where thepoint involved in an incidental order goes to the root of the mat-ter and it is both convenient and in the interests of both partiesthat the correctness of the order should be tested at the earliestpossible stage in an interlocutory appeal. Instead, as Sampayo,
J.pointed out in Arumugam vs. Thambiah, 15 N. L. R. 253, an* early decision of the Appellate tribunal on the point in dispute
512
VYTHIAL.INGAM J.—Mvditjanae v. Runchi Banda Ranaweera
might well obviate the necessity of a second trial. In such casesthis Court would not refuse to entertain an interlocutory appealagainst an incidental but far reaching order of the trial judge.Where, however the matter could more expedient[3/ be dealt within a final appeal, an interlocutory appeal might be rejected aspremature. ”
Although where the incidental order is far reaching a partyaggrieved by such an order may file an interlocutory appeal,nevertheless as Garvin, J. pointed out he is not bound to do soand will not be precluded from raising the identical point in themain appeal after the case has been finally decided or be shut outas being out of time. In certain circumstances, he may be held tohave acquiesced in the order and so be barred from raising it at a •later stage. In Thamotherampillai’s case (supra) Garvin, J. saidat page 361 “ In this case the only question for us, therefore, iswhether it could fairly be said that the defendant has acquiescedin this order and is therefore debarred from inviting us to con-sider at this stage whether or not the District Judge was right ”.In the facts and circumstances of that case he held that thedefendant was not so debarred.
In the instant case the order rejecting the statement of claimwas indeed a far reaching order and the defendant may wellhave been advised to file an interlocutory order. But his failureto do so does not now debar him on the ground that he is out oftime because he was not in law bound to file the appeal then. Norcan he in the facts and circumstances of this case be said to haveacquiesced in the order. It is important to remember that this is apartition case because in such a case even though his statement ofclaim was rejected he could still have participated in the trial andcross-examined the plaintiff and his witnesses, given evidenceand even produced his deed with the leave of Court as providedfor in section 19 (2) (a) of the Partition Act.
Once he produced his deed which is earlier in point of timethan that of the plaintiff’s the latter would have to show that hisdeed took precedence by virtue of prior registration. In hisanswer he has also claimed prescriptive title and claimed theplantations and it was also open to him to establish these claimswhich did not depend on the production of any deeds or otherdocuments. It was not necessary for him to file along with hisclaim an abstract of the devolution of title with reference to apedigree as required by section 19 (1) because he was claimingtitle on a deed from the same man from whom the plaintiffclaimed title to a share on a later deed from him and in respectof whom plaintiff had filed a pedigree.
VYTHIAL.INGAM, JMudiyanse v. Punchi Banda Banaweera
513
In an ordinary civil action a party who is in default by nothaving filed his answer on the due date cannot participate in theproceedings or cross-examine witnesses unless he has purged hisdefault. In the case of Brampy vs. Peries (3 N.L.R. 34) it washeld that under the Civil Procedure Code a defendant who hasobtained time to file answer and did not do so is not entitled tocross-examine witnesses for the plaintiff. Lawrie, A. C. J. said“ Of course a defendant who has not answered may like all therest of the world attend a public Court, but he has no right to
take part in an ex parte hearingIn my opinion the defendant
ought not to have been allowed to cross-examine at the ex partehearing These observations were approved and followed bySoertsz, J. and Peyser, S. P. J. in Majichina Hamy vs. James•Appu (39 N. L«. R. 249).
But this is because section 85 of the Civil Procedure Code setsout inter alia that if the defendant shall fail to file his answer onthe day fixed therefor the Court shall proceed to hear the caseex parte and pass a decree nisi in favour of the plaintiff. Thisis an imperative provision and the Court has no power to takeany other course of action. In the case of N. M. Sally vs. M. A.Noor Mohamed (66 N. L. R. 175) it was held that where a casewas fixed for ex parte trial in terms of section 85 of the CivilProcedure Code the reasons for the default of the defendantcannot be considered before the ex parte trial. Basnayake,C. J. said “ The Court has no power to take a course of actionother than that prescribed in section 85 of the Civil ProcedureCode when the defendant fails to appear on the day fixed for thefiling of his answer.
The case was cited with approval and followed in the case ofThe Board of Directors, Ceylon Savings Bank vs. Nagodavitane(71 N.L.R. 90). Despite decisions to the contrary (see Pereravs. Alwis, 60 N. L. R. 260 and Edirisinghe vs. Gunasekera, 68
L. W. 100) this Court has now approved the decision in NoorMohamed’s case and that of Nagodavitane—S.C. 182/72 (Inty)
C. Kalutara 1149/D—S. C. Minutes. But I am firmly of the viewth&t section 85 A and indeed the whole chapter in regard to theconsequences for the default of appearances has no applicationwhatever to partition actions and it was in this connection that Ireferred to the observations of H. N. G. Fernando, C.J. in thecase of Catherina vs. M. A. Jamis (73 N. L. R. 49) during thecourse of the argument in this case.
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I do not wish to repeat the passages from the judgment quotedby my brother Udalagama, J. except to express my respectfuland complete agreement with the views set out therein withwhich Weeramantry, J. agreed. I would however like to quote
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V YTHIAX.I N"G AM, J'.—Mudiyanse v. Funchi Banda Ranaweera
the following passages from the judgments which set out thereasons for the views H. N. G. Fernando, C.J. expressed. Hesaid “ In the case of the Partition Act however, there is no pro-vision which corresponds to section 85 of the Code and thatsection will therefore apply only if section 79 of the PartitionAct can be said to bring it into application on the ground thatthere is a situation of a casus omissus (page 51).
And again at page 52 “ Having regard to the wide terms ofsection 25 and the other considerations noted above, I am unableto hold that section 85 of the Code is applicable in the case of apartition action. The requirement in section 85 that there shall bean ex parte trial in the event of the failure of a defendant toappear or to file answer is inconsistent with the requirement insection 25 of the Partition Act which I have mentioned. Thafbeing so, the language of section 79 of the Act precludes theapplication of section 85 of the Code in a case where a defendantfails to file a statement of claim.” It is to be noted that section 79of the Partition Act requires the Court to follow the procedurelaid down in the Civil Procedure Code on a like matter or ques-tion only if it is not provided for in the Act and if suchprocedure is not inconsistent with the provisions of the Act.”
The statement of the law on this point as set out by H. N. G.Fernando, C. J. finds full and ample support in the judgment ofSirimane, J. with whom Samarawickreme, J. and Wijayatilake,
J.agreed in the case of Dingiri Amma Vs. Appuhamy (72 N. L. R.347). The question there was whether an earlier case which hadbeen dismissed for want of appearance without any adjudicationof the plaintiff’s rights was res judicata or not. In a sense there-fore the statement of the law on this point was obiter but it is afully considered and strong view. Sirimane, J. said “ I haveexamined the question so far on the basis that an order undersection 84 of the Civil Procedure Code is an appropriate order ina partition action. But I must say, however, that I am verystrongly of the view that the provisions of the Civil ProcedureCode relating to the consequence and cure of defaults in appear-ing (Chapter 12) have no application at all to a partition actioninstituted under the Partition Act. ” (page 350)..
He continued “Even a cursory examination of sections 84 and85 of the Civil Procedure Code would reveal their inapplicability
in a partition action Section 85 provides for the ex-parte
hearing of a case and the passing of a decree nisi if the defendantfails to appear on the day fixed for his appearance and answer.Such a procedure in addition to being obviously impracticable ina partition case, would also be contrary to the provisions ofsection 25 of the Partition Ac+ which require the (page 351)Court to examine the title of each party before entering anInterlocutory Decree. ”
VYTHIALINGAM, J.—Mudiyanse v. Punchi Banda Ranaweera,
515
The case of Sirimalee Vs. Punchi Ukku (60 N.L.R. 448) was acase where parties had given a share to the Oth defendant whohad not filed a statement of claim. But when it came to the trial,the parties took up a new position quite different to their plead-ings and interlocutory decree was entered giving no intereststo the 9th defendant, who was present at the trial but was un-represented and was given no opportunity to say whether sheaccepted the new position or not. In setting aside the decreeSansoni, J. as he then was, with Weerasooriya, J. agreeing, said,“ But I think the more serious objection to the manner in whichthis trial was conducted is the fact that the 9th defendant whowas present in Court, seems to have been totally ignored. Sheappeared even before summons was served on her. It is true thatshe filed no statement, but her presence at the trial surely•indicated that she had come to watch her interests. She does notseem to have been asked whether she accepted the new positiontaken by parties who had pleaded differently, nor whether shewished to give evidence, or even to cross-examine the plaintiff’shusband whose evidence was directly against her interests. ”
It is true that the parties in that case had taken up a newposition which denied to her the rights originally conceded, andin those corcumstances having regard to the duty cast on him, theJudge should have made a more careful investigation of title.But nevertheless the judgment illustrates the fact that in apartition case a party who fails to file a statement of claim is notentirely shut out until he purges his default. Moreover in theinstant case also the parties took up a new position in the courseof the trial. It was the plaintiff’s case that the corpus consistedof lots 1 and 2 only. The first defendant’s only contest with theplaintiff was in regard to the share of Appuhamy which heclaimed.
On the other hand, the 3rd and 4th defendants took up theposition that the corpus consisted of lots 1, 2 and 3 which theyhad included in the plan on a fresh survey. One of the points ofcontest raised at the trial was “ (2) Do lots 1, 2 and 3 form partof the corpus or only lots 1 and 2 form the corpus ? ” In the courseof the cross-examination of the plaintiff it is recorded that “ Atthis stage, it is agreed, that lot 3 forms part of the corpus soughtto be part tioned. ” We do not know what the views of the firstdefendant, who was represented by Counsel, were in regardto this. As stated by Sansoni, J. he should have been giving anopportunity of stating what his position was. However, I see noreason why the right of a defendant who has not filed a statementof claim to participate and put forward his claim should be limited.only to cases in which there has been in the course of the evidence
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VYTHI ALINGAM, J.—Mudiyanse v. Punchi Banda Ranaweera
a deviation from the position taken up in the pleadings or wherehe is deprived of some rights which were conceded to him,although of course in such cases his position would be muchstronger.
Applying the principles enunciated in the cases referred to by
me, with which I am in respectful agreement the first defendant
was in law entitled to participate at the trial and to put forward
his claim even though he had not filed a statement of claim ;
but of course only to the extent permitted by the Act. Therefore
there was no need for him to have appealed from the order at
that stage and by not so appealing he cannot be said to have
acquiesced in the order to the extent of his being now debarred
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from appealing against the interlocutory decree. It is true thathe was represented by Counsel at the trial. But he took no partin the proceedings. Nor did he make any application to Court.
But this is quite understandable because apparently the DistrictJudge himself, counsel and parties had all presumed, as wascontended here, that the order rejecting the statement of claimwas made under section 85 of the Civil Procedure Code. Theycould therefore naturally have assumed that the first defendantcould not participate in the proceeding until he had purged hisdefault. This cannot therefore stand in the way of the appealby the first defendant.
Nor is a Court powerless to control proceedings in a partitionaction if persons in default are permitted to participate in theproceedings. There are several sections dealing with defaultswhich could be applied and moreover where a Court is satisfiedthat dilatory tactics are being adopted to delay the conclusionof the proceedings or to cause embarrassment to the other partiesa robust application of the provisions of the Act in regard tocosts, security for costs and prepayment of costs would remedythe situation and have a salutory effect.•
I hold therefore that the first defendant is not out of time andoverrule the preliminary objection. The appeal of the firstdefendant as well as that of the 3rd and 4th defendants shouldnow be listed in due course for argument.
Ratwatte, J.—I agree with my brother Vythialingam, J.
Appeal of 1st, 3rd and 4th defendants to be listed for argument.