011-NLR-NLR-V-36-DON-DAVID-v.-DON-SIMON.pdf
54
GARVIN S.P.J.—Don David v. Don Simon.
1834Present: Garvin S.PJ. and Dalton J.
DON DAVID v. DON SIMON.
44— (Inty.) D. C. Matara, 7,739.
Partition action—SummoAs served on defendant—No notice of trial on defend-ant—Ex parte proceedings—Ordinance No. 10 of 1863, s. 4.
Where, in a partition action, the defendant on service of summonswas absent on the day appointed for his appearance, he is not entitledto receive notice of the day of trial.
In such circumstances the Court is required to proceed to hear theevidence and investigate the title of the respective parties in so far asmay be practicable by an ex parte proceeding.
PPEAL. from an order of the District Judge of Matara.
Mr. T, de S. Ameresekere for the defendant appellant.
E. F. N. Gratiaen (with him S. Alles), for the plaintiff, respondent.
August 1, 1934. Garvin S.P.J.—
This is a proceeding under the Partition Ordinance. In the plaint thepersons disclosed as having interests in this land are the plaintiff and thedefendant alone. The plaintiff claimed that he was entitled to 1/3 andassigned the remaining 2/3 to the defendant. In due course summons wasissued upon the defendant and on October 18, 1932, there was a reportthat the defendant had been served with summons, but he was absent.It is not disputed or denied that the summons was duly served upon himor that he was absent upon the date appointed for his appearance. There-after the defendant took no notice of the proceedings which followed anda trial took place, after which the learned District Judge entered a decreeassigning to each of the parties shares as stated in the plaint and givingdirections in respect of the plantations. Some time later the defendantappeared and moved the Court to set aside the decree and admit him tofile an answer. The draft answer which he proposed to file indicates thatthe only extent to which he wished the decree varied was in regard to acertain plantation which he claimed to have made himself. The learnedDistrict Judge refused to permit the decree to be set aside or varied, andthe defendant now appeals.
The main ground upon which this appeal was pressed upon us is thatinasmuch as the defendant was not served with the notice of the day*appointed for the trial the decree is not one which binds him, and that heis entitled to as of right to ask that that it be set aside and the answer hedesires to file admitted. It is sought to support this argument by areference in a decision of de Sampavo J. in the case of Podi Sinno v.Coyanis App~ariu L''«dsbip undoubtedly docs in that case expressthe opinion that notwithstanding that a defendant has h :to keep intouch with the proceedings in a partition case to which he is a party and
|«C. W. R. 118.
GARVIN S.P-J.—Don David v. Don Simon.
65
of which he has had notice, he is entitled to receive notice of the dayappointed for the trial. The ground upon which de Sampayo J. baseshis opinion is that at so important a stage as the trial in a partitionproceeding it is desirable and apparently therefore necessary that thedefendant should be present at the investigation into title which is thepurpose of such a trial. And then in the later case of Endiris v. Ancho1there are some indications that he adhered to the opinion expressed byhim in the earlier case, though I think that the order made in Endiris v.Ancho can be supported upon different grounds. It does not appearthat at the argument of either of these cases His Lordship's attentionwas drawn to an earlier case, Podi Singho v. Mohamadu *, in which WoodBenton C.J. expresses a very, different opinion. He repelled the claimof a defendant in a somewhat similar position that a decree entered aftera trial of which he had no notice although he had been fixed with noticeof the earlier proceedings did not bind him and his opinion is expressed inthe following terms:—“ When once a party to a partition action has beenbrought before the Court it is his duty to keep himself in touch with theproceedings in the action, and if he suffers in consequence of his failure todo so he can make no appeal to us here as a matter of strict right ”. Iwould respectfully observe that at the argument of the two cases pre-viously referred to there was another matter to which de Sampayo J/sattention had not been drawn, namely, the provisions of section 4 of thePartition Ordinance which explicitly contemplates and provides for thecase in which a defendant served with summons makes default inappearance. What the court is required to do in those circumstances isto proceed to hear the evidence and investigate the title of the respectiveparties “ in so far as may be practicable by any ex parte proceeding andshall, if the plaintiff’s title be proved, give judgment by default decreeingpartition or sale as to the court shall seem fit. That would seem to beexactly the course which was pursued in this case. In my .humbleopinion the law as stated by Wood Renton C.J., in the case of PodiSingho v. Mohamadu (supra) is more in accordance with the expressprovisions of the Partition Ordinance, and it is a view to which I wouldrespectfully subscribe. I may add that the two cases of Podi Sinnov. Coyanis Appu and Enderis v. Ancho have been very fully and closelyexamined by the late Mr. Justice Jayewardene in his book on the Law ofPartition at pages 97 and onwards. The conclusion to which he comesis also in accordance with the view I favour.
The appeal must therefore be dismissed with costs. But before leavingthis case we would invite the attention of the District Judge to thatportion of the decree under the head “ Plantations ”, which purports todetermine the respective interests of the plaintiff and the defendant tothe plantations in lots A and B in so far as “ they are grouped together ”and referred to as “ paraveni by plaintiff ”. The word “ paraveni ”would, I take it, ordinarily refer, when used with reference to plantations,to those plantations which are common to the co-owners. The expression“ paraveni by plaintiff ” is not therefore understood and may lead, if thedecree is left as it is, to misapprehension and further trouble. It issuggested however by counsel for the respondent that the words have
‘8C. W. R. 23ft.
4 Bals. Notes of Cases 46.
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GARVIN S.P.J.—Don David v. Don Simon.
been taken over and used, without a full appreciation of their effect, fromthe surveyor's report .where they also appear but in circumstances whichindicate that they were employed to indicate that the trees so groupedtogether were paraveni and that the person who claimed that they wereparaveni was the plaintiff. It is desirable that this single point shouldbe cleared up. All that appears to be necessary is the deletion of thewords Jt by the plaintiff ” in the expression “ paraveni by the plaintiff
Dalton J.—I agree.
Appeal dismissed.