027-SLLR-SLLR-1997-V3-FRANCIS-WANIGASEKERA-AND-ANOTHER-v.-PATHIRANA.pdf
CA
Francis Wanigasekera and Another v. Pathirana
231
FRANCIS WANIGASEKERA AND ANOTHER
v.
PATHIRANA
COURT OF APPEAL.
WEERASEKERA,J„
WIGNESWARAN, J,
A. 673/87 (F),
C. MATARA 8109IP.
JUNE 4,1997.
Partition Action – Application for Postponement – Prepayment order regardingcosts not carried out – Case heard – What is required to signify consent – CivilProcedure Code – Sections 82, 142 and 91A – Partition Act 21 of 1977 -Section 25 – Investigation of Title.
Held:
Per Weerasekera, J.
"The 2nd defendant-appellant was present and represented by an Attorney-at-Law when the order for prepayment was made. The proceedings have astatement that the defendant-appellant agreed to the prepayment order. Whatmore than this is necessary to indicate the consent to prepay cost. The defendanthad not signed the record, if that is what is sought to be argued as being what isrequired to signify consent, I cannot subscribe to this view where the partyagreeing to the prepayment is present and is represented by an Attorney-at-Lawand signified in the proceedings as having agreed to comply with the prepaymentorder – this would satisfy the provisions of sections 82, 142, 91A Civil ProcedureCode."
Per Weerasekera, J.
“There has been a very pernicious practice among litigants to resile fromAgreements merely because they have not subscribed their signature to therecord. This pernicious practice in my view must be condemned and refuted withall the contempt it deserves."
Per Weerasekera, J.
“As ( have stated our system of Civil Law is one of confrontation. Abstruseinterpretation of section 25 is a dangerous exercise which could lead todangerous and unreasonable situations from which it is best to desist from, but tofollow the time tested pattern, procedure and methodology of the general CivilLaw and in particular the generally applied procedure under the Partition Act is inmy view most prudent and reasonable."
The partition act provides for a defaulting defendant to explain his default lawfully.
232
Sri Lanka Law Reports
[1997] 3 Sri LR.
APPEAL from the Judgment of the District Court of Matara.Cases referred to:
Callistus Perera v. Nawange – 1994 3 SLR 305.
Sirimalie v. Punchi Ukku – 72 NLR 347.
D. R. P. Gunatillake with S. Suraweera for defendant-appellants.Plaintiff-respondent absent and unrepresented.
Cur. adv. vutt.
July 8.1997.
L. H. G. WEERASEKERA, J.
The plaintiff-respondent instituted this action for the partition of theland called lot 1 of "Ullagodawatta" and morefully described in theschedule to the plaint. The plaintiff by his pedigree claimed a 1/4share and conceded a 1/2 share to the 1st defendant-appellant anda 1/4 share to the 2nd defendant-appellant.
The 1st and 2nd appellants filed their statement of claim denyingthe plaintiff-respondent's pedigree and that the plaintiff-respondentwas not entitled to any share whatsoever. They prayed for a dismissalof the plaintiff-appellant's action to partition the land.
At the trial on 23.04.84 the 1st and 2nd defendant-appellants werepresent and represented by Mr. Kretser Attomey-at-Law who raisedpoints of contest No. 3 and 4 on their behalf.
The trial was thereafter postponed for 04.07.86, 10.09.86 and16.01.87. On 16.01.87 when the case was taken for hearing the 2nddefendant-appellant was present and represented by Mr. KretserAttorney-at-Law who moved for a postponement of the hearing. Theapplication for a postponement of the hearing on the application ofMr. Kretser on behalf of the 2nd appellant was granted on the 2nddefendant agreeing to prepay the plaintiff-respondent costs ofRs. 350/- before 9.30 a.m. on the next date of trial, namely, 30.03.87.The 1st defendant-appellant was absent on the trial date on 30.03.87though represented by his Attorney-at-Law on record.
On 30.03.87 by 9.30 a.m. when the case was taken for hearing asthe prepayment order had not been complied with, the learnedDistrict Judge proceeded to hear the case and delivered judgmenton 27.07.87.
CA
Francis Wanigasekera and Another v. Pathirana
(L. H. G. Weerasekera, J.)
233
This appeal is from that judgment by the 1st and 2nd defendant-appellants.
It was urged on behalf of the 1st defendant that he appeared on
and on his informing Court that he was not ready hisapplication for a postponement was unjustly refused.
I have given my best consideration to this submission. I haveexamined the record and I find that this submission cannot be
sustained for the following reasons:-
By Journal Entry 94 of 28.10.81 the original proxy of the 1st and2nd defendants was cancelled and a new proxy was filed. That proxywas the proxy of Mr, Kretser, Attorney-at-Law. The 1st defendant wastherefore represented by Mr. Kretser until the third new proxy was filedby Mr. Liyaudeen on 11.05.87 Vide Journal Entry 126. in the absenceof any statement by the Attorney-at-Law of record of the 1stdefendant-appellant during this entire period from 28.10.81 to
that he had no instructions from the 1st defendant-appellantand was not appearing for him, the only inference I could come to isthat the 1st defendant was legally represented at the trial on 30.03.87.
On 11.05.87 the 1st defendant-appellant through his new Attorney-at-Law filed papers to explain his absence on 30.03.87 but on thedate of inquiry his Attorney of record Mr. Liyaudeen has informedCourt that he had no instructions and was not appearing for him. The1st defendant-appellant was present and not ready for inquiry.
In those circumstances the only appropriate order that the learnedDistrict Judge could have made was to dismiss the application of the1st defendant-appellant even if it could be said that this procedure toexplain the absence of the defendant’s appearance was legallyavailable under the provisions of the Partition Act. In my view thePartition Act provides for a defaulting defendant to explain his defaultlawfully.
I am therefore of the view that the order dismissing the 1stdefendant's application apparently to explain his absence on
is the correct order.
Learned Counsel for the 2nd defendant-appellant urged that theorder made on 30.03.87 for non-compliance of the prepayment orderwas not legally justifiable.
234
Sri Lanka Law Reports
[199713 Sri LR.
Learned Counsel for the 2nd defendant-appellant submitted thatthe Supreme Court in the case of Calistus Perera v. Nawargem.
Held: “That the trial Judge had no jurisdiction to give judgment forthe plaintiff merely because the defendant failed to pre-paycosts order without the defendant’s consent."
I fully agree with this opinion expressed in that case but to thatextent only.
Even so in the present case the 2nd defendant-appellant waspresent in Court when the order for prepayment was made. He wasrepresented by his Attorney-at-Law Mr. Kretser. The proceedings borea statement that the defendant-appellant agreed to the pre-paymentorder. What more then is necessary to indicate the consent of thedefendant to the prepayment order of 16.01.87? The defendant hasnot signed the record on the 16th of January, 1987 if that is what issought to be argued as being what is required to signify consent. Icannot subscribe to this view where the party agreeing to the pre-payment is present and is represented by an Attorney-at-Law andsignified in the proceeding as having agreed to comply with the pre-payment order. There has been a very pernicious practice amonglitigants to resile from agreements merely because they have not sub-scribed their signature to the record. This pernicious practice in myview must be condemned and refuted with all the contempt itdeserves. In my view when the 2nd defendant-appellant was presentand when he was represented by his Attorney-at-Law and the consentof the defendant was signified by the proceedings of the day thatwould completely satisfy the provisions of sections 82,142 and 91A ofthe Civil Procedure Code to confer the power to give judgment andadjudication in the event of non compliance. It is nothing butreasonable and particularly so in the confrontational system of justiceof the Civil Law that prevails in this country. Moreover if such a powerwas not conferred on the Court to give judgment the entire procedureand working of our Civil Law would come to a grinding halt and to saythat it does not grant the power of adjudication in the event of noncompliance is to say the least an indication of a purile mind with noexperience of the working of the original Civil Courts of this country.
Learned Counsel also urged that the learned District Judge failedto act in terms of section 25 of the Partition Act which requires Court
CA
Francis Wanigasakera and Another v. Pathirana
(L. H. G. Weerasekera, J.)
235
to examine and hear and receive evidence of the title of each partyas decided in the case of Sirimalie v. Punchi Ukku
I do agree that section 25 of the Partition Act requires the Court toexamine and hear and receive evidence of the title and interest ofeach party. But it must be remembered that the literal application ofthe provisions of this section would lead to the most disturbing,hilarious and absurd result and no partition case could ever be finallyconcluded. The most practical via media would have to be adoptedin my view. As I have stated earlier our system of Civil Law is one ofconfrontation. After due notice to parties and the filing of statementsof claim where parties are represented the trial commences with thepoints of contests being raised if any, the adjudication of which theCourt proceeds to do. If no disputes are raised or those raised areabandoned and there is no contest the Court proceeds to examinethe title presented by the plaintiff to determine ownership by ajudgment contained in interlocutory decree. This in my view is brieflywhat happens in the practical application of the Partition Act.Abstruse interpretation of Section 25 is a dangerous exercise whichcould lead to dangerous and unreasonable situations from which it isbest to desist from, but to follow the time tested pattern, procedureand methodology of the general Civil Law and in particular thegenerally applied procedure under the Partition Act is in my viewmost prudent and reasonable.
In this case both the 1st and 2nd defendant-appellants wererepresented by Counsel up to 01.07.87. They had filed statements ofclaim. At some point of time points of contest had been raised ontheir behalf. The learned District Judge was hearing a civil action inparticular a partition action. The learned District Judge was not tryingthe 1st and 2nd defendant-appellants as accused in a criminal trial.When the prepayment order made against the defendant had notbeen complied with and where on the date of inquiry of a purportedapplication of the 1st defendant to explain his absence on the date oftrial he is absent what more can a District Judge do than to proceedto determine the action on the basis of the material available and thatto hear, receive and examine the title and interest of each party onthe basis of the plaintiff-respondent’s evidence. I am of the view thatin the circumstances of this case the learned District Judge hascomplied with the provisions of section 25 of the Partition Act.
236
Sri Lanka Law Reports
11997] 3 Sri LR.
The plaintiff-respondent was noticed of the date of argument onthe direction of Court on 18.06.96, 13.03.97 and 06.05.97. He wasabsent and unrepresented.
I do not propose to interfere with judgment of the learnedAdditional District Judge dated 27.07.87.
The appeal is dismissed. The judgment dated 27.07.87 is affirmed.
I make no order as to costs as the plaintiff-respondent has beenabsent from the hearing despite notice.
WIGNESWARAN, J. – I agree.
Appeal dismissed.