Court of Appeal for the Democratic Socialist Republic of Sri Lanka: The Bench of M.M.A. Gaffoor, J. dismissed an appeal against an order rejecting an intervention application in a suit for partition, holding that the same was statutorily barred and because the impugned order was merely an interlocutory order.
Appellant herein was a plaintiff in a partition suit filed in the District Court of Kurunegala and have given evidence before the learned District Judge in the trial. Since the respondent-defendant contested the suit only on the basis of appellant-plaintiffs evidence, the case concluded and a final decree was issued. Thereafter, appellant-plaintiff filed an application for intervention under Section 328 of the Civil Procedure Code, 1890 in order to file their objections to dispossession. After an inquiry, the learned District Judge dismissed the said petition of the appellant-plaintiff. Aggrieved thereby, the instant appeal was filed.
Counsel for the respondent-defendant Mr Gayanga Wijethunga submitted that the instant appeal was not maintainable on the following grounds:
- There is no right of appeal as the impugned order was not a final order but only an interlocutory order.
- In any event, there is no right of appeal as Section 329 of the Code bars an appeal from an order made under Section 328 of Code.
At the outset, the Court held that the impugned order was an interlocutory order in terms of Section 754(2) of the Civil Procedure Code. Reliance in this regard was placed on Senanayake v. Jayantha, SC Appeal No. 41/15 and SC CHC 37/08, where it was held that if an order finally disposes of the matter in dispute, it is a final order but if the nature of order is such that it allows the action to go on, then it is an interlocutory order. Further, it was opined that the effect of an order under Section 328 is subject to the same conditions of appeal. As such, denial of a right of appeal is embodied in Section 329 of the Code itself.
In view of the above, the appeal was dismissed.[Wannahaka Mudiyanselage Heen Amma v. Wijesingha Mudiyanselage Punchi Banda Wanaduragala, C.A. 445/97 (F), decided on 05-04-2019]
