062-NLR-NLR-V-77-S.-SIVANADAN-and-another-Appellants-and-SINNAPILLAI-and-23-others-Respondents.pdf
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WALPITA, J.—Sivanandan v. Sinnapillai
1974 Present: Walgampaya, J., Weeraratne, J., and Walpita, J.
S. SIVANANDAN and another, Appellants, and SINNAPILLAIand 23 others, Respondents
S. C. 563/69 (F)—D. C. Point Pedro, 9503
Partition action—Interlocutory decree—Liability to be set aside if aclaimant mentioned in the Surveyor’s report has not been givendue notice of the action—Partition Act (Cap. 69), ss. 12, 22 Cl),48 (1), 70, 77, 79—Civil Procedure Code, s. 356.
Where, in a partition action, a claimant (not being a party to theaction) is mentioned in the Surveyor’s report, the Court has nopower to dispense with the service of notice on the person who isalleged to ba a claimant. In such a case, the notice is imperativeunder Section 22 (1) of the Partition Act and the provisions ofSections 77 and 79 should be observed and Section 356 of the CivilProcedure Code followed in serving the notice. Where these Sectionshave not been strictly followed, the Supreme Court has power to setaside, in revision, the Interlocutory Decree entered in the absenceof the claimant, more especially if no declaration under Section 12of the Partition Act has been filed by the plaintiff.
Appeal from a judgment of the District Court, Point Pedro.A. Mahendrarajah, for the petitioner-appellants.Respondents absent and unrepresented.
Cur. adv. vult.
June 28, 1974. Walpita, J.—
This is an appeal by the Petitioners-Appellants from an orderof the District Judge refusing to set aside the InterlocutoryDecree entered in this case. These appellants were not partiesto this action. They sought to have the Interlocutory Decree setaside, to have themselves added as parties, and to be given anopportunity to file statements of claim and thereafter proceedwith the action. The learned District Judge after inquiring intotheir Petitioner refused the Petitioners’ application. This appealis from that Order.
The Plaintiff-Respondent has filed this action for a partition ofa land called * Kanchawarekanchiema In her plaint she statedinter alia that one Theivanai died leaving three children,Kathiratamby, Sinnadurai and Muttupillai, and that Kathira-thamby also died leaving behind the 6th, 7th, 8th defendantsand Parameswary, the 2nd Petitioner-Appellant in this case, andthat she had been dowried other lands. In view of that averment
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Parameswarie, the 2nd Petitioner-Appellant was not given anyshares in this land according to the plaint nor made a party.When the Surveyor went to survey the land, the subject matterin this case, on a commission issued by Court, the only personspresent at the time of the survey were the plaintiff-respondent,3rd defendant-respondent and the 21st defendant-respondent. Theplaintiff, according to the report of the surveyor, stated that the-21st defendant-respondent was occupying lot 2 in the Plan filedof record No. 1293 marked ‘ X ’. The 21st defendant-respondent,however, had stated to the Surveyor that the entire land withits appurtenances belonged exclusively to her and was dowriedabout 4£ years ago to her daughter, the said Parameswary the-2nd Petitioner-Appellant, wife of Subramaniam Sivanandan the1st Petitioner-Appellant, and that the two Petitioners werepresently at 104, Mutwal Street, Mutwal, Colombo. In view ofthis statement of the Commissioner in his report, the plaintiff’sproctor moved for notice on the claimant. Notice was issuedthrough the Fiscal, Western Province, and on 12.2.1968 it wasreported that the notice was not served as the inmates of thepremises stated that there was no one by that name. Again on18.2.1968 journal entry states that notice was not served as theinmates stated that there was no one by that name. In conse-quence of that, the proctor for the plaintiff moved that as theFiscal had reported that there was no one by that name thatthe service of notice on this party be dispensed with. The Courtaccordingly made an order ‘ notice on disclosed party dispensedwith Thereafter the Petitioners were not noticed nor accordingto them were they aware of the partition case. There was no■contest in this case and the trial took place on 5.8.1968, whenthe Plaintiff-Respondent gave evidence. In her evidence shestated, in proving the pedigree, that Kathirathamby died leavingbehind the 6th, 7th, 8th defendants, and Parameswary the 2ndPetitioner-Appellant, who was dowried other lands. Thereafterthe judgment was given accepting the evidence of the plaintiffand Interlocutory Decree has been entered in terms of thejudgment.
The Petitioners-Appellants made an application on the 29th ofNovember, 1968 seeking to have the Interlocutory Decree set asideand that they be permitted to intervene and prove the claim ofthe 2nd Petitioner-Appellant. The grounds urged were that shehad not been noticed in terms of Section 22 (1) of the PartitionAct although the Surveyor had in his report referred to a claimon behalf of the 2nd Petitioner.
The learned District Judge after inquiring into their petition,stated the Court had no power to set aside the InterlocutoryDecree on the grounds urged by the Petitioners and refused the
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application with costs. In the course of the order the learnedDistrict Judge examined the law relating to this matter andstated that where a person, who is not a party, is disclosed asone who has claimed rights in the land at the time of the surveyand the Commissioner makes a report to that effect, it is the dutyof Court under Section 22 (1) to give notice of the action to suchperson. Such a person is not added as a party, but only noticeof the action is given to him and it will be open to him underSection 70 to make an application to Court to have himself addedas a party. Once he is added as a party he is entitled to havesummons served on him. Failure to serve summons on such aparty is a fatal irregularity which will enable that party to havean Interlocutory Decree or even a Final Decree set aside on theground that no summons had been served. The case of a personwho had been noticed to appear but who had not been added asa party is quite different and there are a series of decisions ofthe Supreme Court making this position quite clear.
If no notice has been served on a party who should have beennoticed under Section 22 and the Interlocutory Decree or FinalDecree had been entered thereafter, such party will not beentitled to have such a decree set aside for the non-service ofnotice. Section 48 (1) which declares an Interlocutory Decreeand Final Decree final and conclusive will be binding on him“ notwithstanding any omission or defect of procedure ” or “ thefact that all persons concerned are not parties to the PartitionAction ” and if he had any claim to a share in the land it wouldbe open to him only to sue for damages the parties responsiblefor depriving him of that share. The learned District Judgehas examined all the relevant authorities of this Court (vide59 N.L.R. 400, 68 N.L.R. 313, 58 N.L.R. 575, 71 N.L.R. 73, 62
N.L.R. 572, 66 N.L.R. 241) and has in our view correctly cometo the conclusion that the Petitioners in this case cannot seekto have the Interlocutory Decree set aside on the ground thatnotice of this action has not been served on them as requiredby Section 22.
Counsel for the Petitioners-Appellants, however, appealed tous to exercise our revisionary powers and consider setting asidethe Interlocutory Decree in the circumstances of this case. Weknow that the 2nd Petitioner was mentioned in the plaint as aperson who had inherited certain shares, but as she was dowriedother lands she was not made a party. The plaintiff in herevidence also stated that she had been dowried other lands.Apart from that bare statement that she was dowried otherlands no deed was referred to by which she was dowried otherlands nor did the District Judge on whom is cast a duty in apartition action to examine the title of parties seek to probe
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this matter. Further the 2nd Petitioner’s name had beenmentioned by the 21st defendant, the mother of the 2ndPetitioner, who stated that the 2nd Petitioner was entitled tothe entire land. No doubt the Proctor for the Plaintiff-Respondent on seeing the report moved that the 2nd Petitionerbe noticed and notice was in fact taken out, but as it was notserved he had moved Court to dispense with the issue of notice.The Court had without considering the implications of suchdispensation, allowed it. In fact the Court should have requiredthat further attempts be made to serve notice on the disclosedparty and even to direct that the notice be served by substitutedservice. If the 2nd Petitioner had been added as a partydefendant, then she would have been entitled to have summonsserved on her and if summons had not been served on her, asthe notice in this case had not been served, the learned DistrictJudge would have ordered substituted service of summons. Butbecause there was only a notice to be served this had not beendone.
The learned District Judge was wrong when he dispensed withthe service of notice on the 2nd Petitioner. Under Section 22 (1)such notice is imperative and the provisions of Sections 77 and79 should have been observed and Section 356 of the CivilProcedure Code followed in serving such a notice. If theseSections are not strictly followed the protection given to rightfulclaimants to lands subject to partition will be removed resultingin serious loss to them. This Court should in such cases act byway of revision and correct mistakes in procedure.
Mr. Mahendrarajah, counsel for the Petitioners-Appellantsdrew our attention also to the fact that according to the JournalEntries, no declaration under Section 12 of the Partition Actappears to have been filed in this case. We have also examinedthe record and it seems to us the provisions of Section 12 ofthe Partition Act have not been followed. Under Section 12,after the partition action is registered as a lis pendens theplaintiff is under a duty to file a declaration from a Proctorcertifying that all entries in the register maintained under theRegistration of Documents Ordinance relating to the land whichconstitutes the subject matter of the action, has been personallyinspected by that Proctor after the registration of the sectionas a lis pendens and it must contain a statement of the name ofevery person found on inspection of those entries to be a personwhom the plaintiff is required under Section 5 to include in theplaint as a party to the action. Now in this case if there hadbeen such a declaration, perhaps the interests of the 2ndPetitioner who is alleged to have got the entire land on Deed
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Nandoria v.—Inspector of P o'ice, Waralapo'.a
Y2 would have been disclosed and she would have been addedas a party and all these difficulties would have been obviated.Considering therefore the defects in the procedure adopted inthis case, we are of the view that we should use our powersof revision and set aside the Interlocutory Decree in this case.
The Interlocutory Decree is therefore set aside. The case willgo back to the District Court, the Petitioners will be added asparties to this action and summons served on them and the trialproceeded with de novo.
The appellants are entitled to costs of his appeal.Walgampaya, J.—I agree.
Weeraratne, J.—I agree.
Appeal allowed.