Court of Appeal of the Democratic Socialist Republic of Sri Lanka: The Division Bench of Prasantha De Silva and K.K.A.V. Swarnadhipathi, JJ. dismissed an appeal which was filed against the dismissal of the revision application citing no exceptional circumstances to invoke the revisionary jurisdiction.
The 2nd Party Respondent-Petitioner-Appellants (Appellants) had filed the case within 3 months, as per a settlement. Five years after filing the said action and when it reached the stage of the trial, it was revealed that the subject matter of the action is a co-owned land. Thereafter, the Appellants had withdrawn the case reserving the right to file a fresh action. 1st Party Respondent-Respondent-Respondents (Respondents) filed a motion stating that the 2nd Party Respondent-Petitioner-Appellants have withdrawn the case and hence permit the Respondents to put up the boundary fence in terms of the settlement. Primary Court Judge allowed the application of the Respondents to put up the boundary fence on 09-07-1997.
On 16-07-1997, Appellants had filed a motion stating that a partition case has been filed in respect of the land dispute and therefore to vacate the above Order. On 15-09-1997, Magistrate stayed the above order. On 28-05-2003, 2nd Party Respondents moved to withdraw the said case with liberty to file a fresh action and the District Judge allowed the said application. On 14-08-2013, Respondents filed a motion in the Primary Court informing that Respondents have withdrawn the said partition action and therefore to allow the Respondents to put up the boundary fence on the land in dispute as per the terms of the settlement. Accordingly, the learned Primary Court Judge allowed the application. On 15-11-2013 the 2nd Party Respondent-Petitioner- Appellants aggrieved by the order filed an application for revision. The High Court judge dismissed the said application on the basis that the Appellants had not disclosed any exceptional circumstances to invoke the revisionary jurisdiction of the Court. Thus, an instant appeal was filed.
The Court observed that Appellants had withdrawn the said partition case on 28-05-2003 with liberty to file a fresh action. The Appellants had not taken any interest in filing a fresh partition action until the Respondent moved the Court to execute the writ, which was after 10 years from the date of withdrawal of the said partition case. Thus, it is imperative to note that the Appellants have not exercised their legal rights over the disputed property and had not acted with due diligence.
Thus, according to the maxim ‘vigilantibus non dormientibus aequitas subvenit’, the Appellants had slept over their rights. The law helps the vigilant and not those who sleep over their rights.
The Court while dismissing the appeal held that the High Court Judge has correctly decided that no exceptional circumstances have been established by the Appellants to invoke the revisionary jurisdiction of the High Court.[Abdul Rahman Lebbe Abdul Hakeem v. A. A. Sithy Zulfiya, CA (PHC) 137 of 2017, decided on 17-05-2022]
Lal Wijenayake with S. Jayaratne A.A.L for the Petitioner-Appellant.
N.M Shaheed A.A.L with Piyumi Seneviratne A.A.L for the 1st Respondent- Respondent-Respondent of the 1st Party and Substituted Respondent-Respondent