Samarasinghe r. Samarasinghe
1967 Present: T. S. Fernando, J., and Siva Supramaniam, J,A. SAMARASINGHE and another, Appellants, and W. SAMARA-SINGHE, Respondent8. C. 222 (Inty.) of 1966—D. C. Galle, 7106jL
Conciliation Boards Act, No. 10 of 1958, as amended by Act No. 12 of 1963—Sections6, 14 (1) (a), 18—Dispute relating to a contract of tenancy—Jurisdiction of acivil court to hear it—Requirement of certificate from Chairman of Panel ofConciliators—Inability to serve summons on the. party complained against—Effect.
Whore a Panel of Conciliators has been constituted for a Conciliation Boardarea, an action instituted in that area concerning a dispute as to whether or notthere has been a broach of a contract of tenancy between the parties fallswithin the ambit of section 6 of the Conciliation Boards Act, No. 10 of 1968, asamended by Act No. 12 of 1963. The action cannot therefore be instituted in,or be entertained by, a civil court without the production of a certificate fromthe Chairman of the Panel of Conciliators in compliance with the requirementsof section 14 (1) (a) of the Act.
Where a dispute is referred to a Conciliation Board, there is no legal require-ment of the presonce at the inquiry of the party against whom the complaint ismade. If the Board is satisfied that, despite reasonable effort, it is not possibleto serve summons or otherwise secure the attendance of the party complainedagainst, there is no legal bar to an ex parte inquiry and the issue of a certificatethereafter that it is not possible to effect a settlement.
T. S. FERNANDO, J.—Samaraainghe v. Samorosinghe
-A-PPEAL from an order of the District Court, Galle.
M.C. Abeyewardene, for the defendants-appellants.
(J. Ranganathan. Q.C.. with S. W. L. Bandara, for the plaintiff-respondent .
Cur. adv. vv.U.
l>ecember 21, 1967. T. S. Fernando, J.—
This action was instituted on 19th March 1965 in the District Courtof Galle by the plaintiff who averred in his plaint that he was at allmaterial times a monthly tenant of his elder brother, the 1st defendant,in respect of certain premises with all buildings thereon. It was furtheraverred that his landlord, the said 1st defendant, had forcibly ejectedhim from a specified part of the said premises. The 2nd defendantwas made a party to the case on the allegation that he had acted inconcert with tho 1st defendant in the said unlawful ejectment. Whatwas prayed for in the plaint was an ejectment of the defendants and arestoration of tho plaintiff to quiet possession.
The 1st defendant filed answer denying that the plaintiff was histenant. It seems to me that there lay the real dispute between theparties. The 1st defendant further denied unlawful entry and averredthat the plaintiff was only his rent collector and manager of the buildingsand of the business carried on therein. He alleged that the plaintiffwas dismissed from service on account of misappropriation of certainmonies, and that the 2nd defendant was the person employed to succeedto tho duties performed by tho dismissed plaintiff.
Tho 1st defendant, in his answer, took up also the plea that this action<-ould not have been instituted by the plaintiff or entertained by thecourt without the production of a certificate from the Chairman of thePanel of Conciliators constituted for the area in which the premisesfrom which the plaintiff claimed he was ejected are situated. Thepoint so pleaded was tried by way of a preliminary issue and decidedby the learned District Judge against the defendants. This appealraises solely the correctness of that decision of tho District Judge.
Section 14 (1) (a) of the Conciliation Boards Act, No. 10 of 1958, asamended by Act No. 12 of 1963, enacted as follows :—
“ Where a Panel of Conciliators has been constituted for anyConciliation Board area—
no proceedings in respect of any dispute referred to in paragraphs(a), (6) and (c) of section 6 shall be instituted in, or bo entertainedby, a civil court unless the person instituting such proceedingsproduces a certificate from tho Chairman of such Panel that suchdispute has been inquired into by a Conciliation Board and it hasnot been possible to effect a settlement of such dispute by the
T. S. FERNANDO, J.—Samarasinghe v. Santarasinglie
Board, or that a settlement of such dispute made by a ConciliationBoard has been repudiated by all or any of the parties to suchsettlement in accordance with the provisions of section 13 ; ”
It did appear in the proceedings held in the District Court on thepreliminary issue that a dispute between the plaintiff and the 1stdefendant had been referred as contemplated in section 6 of the Act forinquiry to a Conciliation Board. D4, a certificate dated 25tli August19G5, has been issued by the Chairman of the relevant Panel. By thattime the answers of the defendants had been filed in the District Court.This certificate recites that a complaint was made by the plaintiff againstthe 1st defendant “ for having entered unlawfully the service station ”(which is the important part of the premises we are concerned with inthis case), that it was inquired into by a Conciliation Board and that asettlement could not be effected. The learned District Judge has con-strued the complaint made to be one relating to a criminal offence oftrespass, but we are satisfied that he was in error in so doing. He appears*to have been influenced by the fact that the matter was referred tothe Panel of Conciliators by the Police, but the evidence of the PoliceInspector is clear enough that he treated the plaintiff’s complaint to liimcorrectly as one relating to a land dispute—a dispute of a civilnature, in respect of which the Police could necessarily make no usefuldecision.
It would appear that service of summons could not be effected on the-1st defendant so that a Conciliation Board may proceed to make aninquiry inter partes, but, as we apprehend the position, there is no legalrequirement of the presence at the inquiry of the party against whomthe complaint is made. If, after reasonable effort to serve summonsthe Board is satisfied that it is not possible to serve summons or otherwisesecure the attendance of the party complained against, there is no legalbar to an ex-parte inquiry and the issue of a certificate thereafter thatit is not possible to effect a settlement. That the Chairman was awareof his power to issue a certificate in circumstances such as those I haveabove set out is evident from the very existence of certificate D4.
The learned District Judge, after referring to the obiter dictum ofBasnayake, C.J., in Asiz v. Thondainan1 that the right of a citizento invoke the aid of the courts is one that “is so fundamental thatit cannot, in my view, be taken away by our legislature itself”,has gone on to say that the plaintiff’s right to sue cannot betaken away unless a statute in express and unambiguous languageso states. We do not think that the Conciliation Boards Actmakes any pretensions of depriving the citizen of his right of access tothe established Courts. What it seeks to do is to place a bar againstthe entertainment by Court in certain stated circumstances of civil orcriminal actions unless there is evidence of an attempt first made toreach a settlement of the dispute over which the parties appear set onembarking on litigation which is often expensive to the parties as well
(1939) 61 X. L. It. at p. 222.
The Superintendent, Deeaide Estate, Maskeliya v.279
Ilankai Thozhilar Kazhakam
as to the State and which almost always finishes up in bitterness. Indeed,section 18 of the Act is eloquent in regard to the mood of the legislaturewhen it passed the law relative to conciliation, for it enacted that “ theprovisions of this Act shall have effect notwithstanding anything tothe contrary in any written law
I do not find it possible to agree with the learned judge in his findingthat there was no dispute between the plaintiff and the 1st defendantsuch as is referred to in section 6 of the Act. I have already indicatedabove that the main dispute was that over the allegation of the existenceof a tenancy. Indeed, the plaint itself, and certainly the pleadingstaken together, establish that there was a dispute falling within one ormore or all of the classes (a), (b) and (r) described in the said section 6.Moreover, the very conduct of the plaintiff in obtaining the certificateafter the institution of the action when the pinch of the plea was beingfelt and the making of no effort to produce it in Court, leaving suchproduction to be done by the 1st defendant, goes to prove that he himselfrealised the weakness of his position in law. The issue referred to abovein this judgment had, on the facts before him, to be answered by thelearned judge in the negative.
I would allow the appeal, set aside the order of 20th July 1966 appealedfrom, and direct that the plaintiff’s action be dismissed on the groundthat it could not have been instituted or entertained in view of section14 (1) (a) of Act No. 10 of 1958.
The 1st defendant is entitled to the costs in the court below and tothe costs of this appeal.
Siva Supramaniam, J.—I agree.
A. SAMARASINGHE and another, Appellants, and W. SAMARASINGHE, Respondent