090-NLR-NLR-V-59-H.L.-SIRIWARDENE-et-al.Appellants-and-M.-A.-T.-JAUASUMANA-Respondent.pdf
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SANSONI, J.—Siriicardene v. Jauasumana .'.
-"19581'redenl :Sansoni, J., and T. S. Fernando, J.’
JI. L. SIRIWARDENE et al., Appellants, and M. A. T. JAUASUMANA,'
-, ••'Respondent .’
.- S. G. 557—-D. O. Kcdulara, 30,327'
partition action—Interlocutory decree—Scope of its “ final and conclusive ” nature—Summons not duly served on a parly—Effect—Partition Act, 2io. 16 of 1951,as. 14, 48 (1).’’
"Where one of the defendants in a partition action sought to have the inter"locutory decree, which was entered in his absenco, sot aside on the ground thatsubstituted service had been ordered on him although there was no swornevidence before the Court that he was within Ceylon and was evading service—
Held, that the “ final and conclusive ” effect given to an interlocutory orfinal decree by section 4S (1) of the Partition Act, No. 16 of 1951, was notintended to deprive a party who had not been duly served with summons of theright to’claim that the decree had not been properly entered, and should there-fore be vacated, in order that his claim might be investigated.
ApPKAT, front a judgment of the District Court, Kalutara.-
Frederick W. Obeyesekere, with G. L. L. de Silva, for the 8th and 9thdefendants-appellants.
M.L. de Silva, for the plaintiff-respondent.
’"Cur. adv. vidt. ■ –
.April 2, 1958. Sansoni, J.—
The question that arises for decision in this appeal is the effect thatshould bo given to certain words in section 48 (1) of the Partition Act,.No. 16 of 1951. The relevant part of that section reads :
“ Save as provided in sub-section (3) of this section, the interlocu-. tory decree entered under section 26 and the final decree of partitionentered under section 36 shall, subject to the decision on any appealwhich may be preferred therefrom, be good and sufficient evidenceof the title of any person as to any right, share or interest awardedtherein to him and be final and conclusive for all purposes against allpersons whomsoever, whatever right, title or interest they have, orclaim to have, to or in the land to which such decrees relate and not-withstanding any omission or defect of procedure or in the proofof title adduced before the court or the fact that all persons concernedare not parties to the partition action ; and the right share or interestawarded by any such decree shall bo free from all encumbrances what-soever other than those specified in that decree. ”
It is not necessary to quote the rest of the section for the purposo of-this judgment.
SA2'TS02sri, J!.—Siriwardene v. Jauasumana
401
The S(h defendant-appellant who was a party to this action complainsthat the summons was not duljr served on him. It happened that upona report being made by the Fiscal that the summons could not be servedon him because he could not bo found, the District Judge ordered that thesummons on him should bo re-issued to be affixed to the land. On thenext date the Fiscal reported that the summons had been served bybeing so affixed, but the 8th defendant was absent when the case wascalled in Court. Thereafter the trial took place and interlocutorydecree was entered in the absence of the Sth defendant.'
Now section 14 of the Act reads : “ The provisions of the Civil Proce-dure Code relating to the service of summons shall apply in relation to theservice of summons in a partition action . It is quite clear from the deci-sions of this Court that where personal service of summons cannot beeffected on a defendant, there must be sworn evidence beforo the Courtthat the particular defendant is within the Island and is evading service,before substituted service is ordered. There was no such evidence before-the Judge in this ease, and the order that summons should be affixed tothe land was therefore bad. At the inquiry which was held into the appli-cation of the Sth defendant that the decree be set aside and ho be allowedto file answer, the learned Judge correctly held that summons had not beendul}r served : but he also held that section 4S (l) did not help the Sth defen-dant because the section provided that the interlocutory decree shall befinal and conclusive “notwithstanding any omission or defect of proce-dure”, and it is the latter finding that is attacked by the Sth defendant.
The question is whether these words apply to a case where summonshas not been duly served on a defendant. It is hardly necessary to drawattention to the conclusive effect of a decree entered in a partition action,and to the decisions of this Court under the Partition Ordinance whichheld that a final decree can be set aside where there has been an irregular-service of summons. I find it impossible to hold that section 48 (1)was intended to deprive a party who had not been duly served with-summons of the right to claim that the decree had not been properly-entered, and should therefore be vacated, in order that his claim' might"be investigated..'
In Craig v. Kanseen 1. Lord Greene, M. R., considered tho questionwhether a failure to serve summons was a mere irregularity, or whether-."it was something worse which would give the defendant the right to havethe order set aside. He said it was beyond question that “ failure toserve process where service of process is required is a failure which goesto the root of our conceptions of the proper procedure in litigation.Apart from proper ex parte proceedings, the idea that an order canvalidly be made against a man who has no intimation of any intentionto apply for it is one which has never been adopted in England. To saythat an order of that kind is to be treated as a mere irregularity and notsomething which is affected by a fundamental vice, is an argument which,in my opinion, cannot be sustained ”.-
The matter has also been dealt with by the Privy Council in Marsh v.Marsh2 where Lord Goddard dealt with the question of what
{1943} 1 A. B. li. JOS.
(1915) 02 T. B. Tt. 20.
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irregularities will render a judgment or order void or only voidable.He said : ‘‘No Court has ever attempted to lay down a decisive, test.for■distinguishing between, the two classes of irregularities .
One test that may bo applied is to inquire whether the irregularity has■caused a failure of natural justice. ”
I think the principles enunciated in these cases show beyond doubtthat due service of summons on a party is an essential step, and does notcome witliin the term “ omission or defect of procedure Those words-■should bo confined to omissions or defects of a much more venial characterwhich it is not necessary for me to categorise here.
I therefore hold that the 8th defendant was entitled to have the inter-locutory decree set aside in order that he might file his answer and provehis claim. His appeal is allowed uatli costs in both Courts. . _
The appeal of the 9th defendant was not pressed and X therefore neednot consider it. His appeal is dismissed Avith costs.
T. S. Fernando, J.—I agree.
Appeal of Sih defendant allowed.Appeal of 9th defendant dismissed.