Legal Services and Laws of Sri Lanka


SLR-1990 Vol.2-P249

SLR - 1990 Vol.2, Page No - 249

MENDIS

v.

DUBLIN DE SILVA AND TWO OTHERS
SUPREME COURT,

FERNANDO, J., KULATUNGA, J. AND DHEERARATNE J.,

S. C. No. 67/86 - S. C. SPECIAL LA/130/86 - C. A. APPEAL No. 57/79(F)

D. C. HAMBANTOTA P/80,

MARCH 14 and 15, 1990.

Constitution-Interpretation "aggrieved party" within the meaning of Article 128(1) of the Constitution - PartitionLaw,No.
21 of 1977, S. 25(2) - Locus standi.

In a partition action the principal contest was between the plaintiff on the one hand and the 8th and 9th defendantsonthe
other who claimed certain lots of the corpus by prescription. The 5th defendant who was thehusbandofthe9thdefendant
claimed certain improvement before the surveyor, but filed no statement of claim. The DistrictJudgedismissedtheaction
and the plaintiff appealed to the Court of Appeal making all parties to the action respondents, butonlythe8thand9th
defendants resisted the appeal. The Court of Appeal reversed the judgement of theDistrictCourtandproceededtoallot
shares to the plaintiff and 1st to 3rd defendants and declared the 5th defendant entitled to compensationforimprovements.
The 5th defendant appealed to the Supreme Court and a preliminary objection was taken on behalf oftheplaintiffthatthe
5th defendant lacked locus standi.

Held :
In terms Article 128(1) of the Constitution an appeal lies to the Supreme Court at the instance of an aggrievedparty.Such
a party must be a party who has suffered a legal grievance, a partyagainstwhomadecisionhasbeenpronouncedwhich
wrongly deprived him of something or wrongly affected his title to something. These attributes are notpresentinthe5th
defendant and therefore the appeal should be rejected.

Cases referred to
In re Sidebottam 1880,'14 Ch. Div. 458
APPEAL from judgement of the Court of Appeal - preliminary objection.
l. M. R. Wijetunge, P. C. with M. L. De Silva for petitioner
N. R. M. Daluwatte, P. C. with L. V. P. Wettasinghe, P. Keerthisinghe and Miss S. Abhaygeewa for plaintiff-respondent.
April 6, 1990.
DHEERARATNE, J.
This matter comes up by way ofapreliminaryobjectionraisedbylearnedCounselfortheplaintiff-respondent,for
entertaining by this Court the appeal preferred by the 5th defendant against the judgment delivered by the CourtofAppeal,
on the ground that the appellant lacks locus standi. Abriefreferencetothehistoryofthiscaseisnecessaryto
appreciate the point raised by learned Counsel. The plaintiff filed thisactionintheDistrictCourtasfarbackas
30.3.1967, seeking to partition the land called lot c (Northern Block) of contiguous lands calledMedagamakeleandDigana.
Although originally the action related to an extent of 26A, OR, 30P, after several surveys, the corpus was restrictedtoan
extent of 6A. 3R. 18P. One of the principal contests to the case of the plaintiff came from the 8th and 9thdefendants(the
last being the wife of the 5th defendant) who pleaded for the dismissal of the action, on the ground that they - the 8thand
9th defendants - had prescribed to certain portions of the corpus.

The 5th defendant filed proxy on 9.11.19 74 through his Attorney-at-Law Mr. T. S. Doole, whowasalsotheAttorney-at-Law
for the 8th and 9th defendants, but while 8th and 9th defendants filed a statement of claim, the 5th defendant didnot.The
5th defendant claimed certain improvements in the corpus before the Surveyor, was present throughout the trial, andwasthe
principal witness to testify in support of the case of his wife.
The learned trial Judge afteraprotractedtriallastingseveraldays,gavejudgmenton28.4.1978,dismissingthe
plaintiff's action, while upholding the claim of prescription of the 8th and9thdefendantstocertainportionsofthe
corpus. The plaintiff appealed from that judgment to the Court of Appeal making allthedefendantsinclusiveofthe5th
defendant, respondents. At the argument in the Court of Appeal, only the 8th and9thdefendantsresistedtheplaintiff's
case through Counsel. The Court of Appeal on 31.7.1986 in reversing the judgment of the original Court,rejectedtheclaim
of prescription of the 8th and 9th defendants and proceeded to allot shares in the corpus to the plaintiffand1stto3rd
defendants, further declaring the 5th defendant entitled to compensation for certain improvementseffectedbyhimonthe
lots claimed by the 9th defendant.
The present appeal, quite strangely, is not filed by the 8th or the 9th 'defendants, but by the 5th defendant. It ispointed
out by learned Counsel for the plaintiff that in terms of Article 128(1)oftheConstitution,the5thdefendantisno
"aggrieved party" to the proceedings of the Court of Appeal, at the instance of which party only that Court hasjurisdiction
to grant leave to appeal (if not granted ex mero motu), Our attention was invited to the case of InreSidebotham,(1)in
which James L. J., at p. 465 expressed as follows :
"A person aggrieved must be a man who has suffered a legal grievance, a man againstwhomadecisionhasbeenpronounced
which wrongly deprived him of something, or wrongly affected his title to something."

I am unable to identify in the 5th defendant any of those attributes ofanaggrievedmanreferredtobyJamesL.J.,
Springing as they must, from the judgment of the Court of Appeal. The petition filed in thisCourtbythe5thdefendant,
appears to me to be a veritable statement of claim, and that too filed for the first time in the long andlengthypartition
proceedings, spanning a period of about 20 years. This claim is made in the teeth of S.25(2) ofthePartitionLaw,-No.'-21
of 1977, which reads as follows :
"If a defendant shall fail to file a statement of claim on the due date the trial may proceed ex parte as against suchparty
in default, who shall not be entitled, without leave of Court, to raise any contest or dispute the claim of anyotherparty
to the action at the trial."
I find it difficult to subscribe to the proposition advanced on behalf of the appellant, thatadefaultingparty,whois
disentitled to raise a contest or a dispute as a matter of right at the trial, acquires such a privilege oncethetrialis
concluded. How much so ever genuine, may be the 5th defendant's sharing in common a grievance with his wife. I amunableto
hold that in the eyes of the law he is an aggrieved party to the judgment of the Court of Appeal. In the DistrictCourt,he
asked nothing and received nothing in the Court of Appeal he gained perhaps unasked, partly what hiswifelost,although
it may be a poor consolation for the extent of his wife's loss.
The appeal is rejected with costs fixed at Rs. 525.
FERNANDO, J. - I agree.

KULATUNGA, J. - I agree.
Appeal rejected.


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