Sri Lanka Law Reports
11999} 3 Sri L.R,
v.BANDA AND OTHERS
COURT OF APPEALWEERASURIYA, J.
CA NO. 80/97.
DC MATARA NO. 1770.
FEBRUARY 11, 1999.
JULY 2, 1999.
Hypothecary action – Ex parte Order – Civil Procedure Code, s. 85 – Applicabilityof Debt Conciliation Ordinance, s. 56 Absolute bar – Latent and Patent want ofjurisdiction.
The defendant-petitioner sought to revise the ex parte order, the order for saleand the subsequent order whereby the District Court refused to vacate the aboveorders.
It was contended that in terms of s. 56 of the Debt Conciliation Ordinance (DCB),no civil court shall entertain any action in respect of any matter pending beforethe Board, and as there was a case pending before the DCB, the District Courtlacked jurisdiction, and the court could not have made the orders complained of.
In terms of S. 14 of the Conciliation Board Act there was a conditionprecedent for the court to have jurisdiction, but as regards s. 56 of theDebt Conciliation Ordinance there is no such condition precedent attachedto it, but there is an absolute bar to jurisdiction.
The want of jurisdiction is patent and not latent, objection to jurisdictioncan be taken at any time.
"In such a case it is, in fact, the duty of court itself ex mere motuto raise the point even if the parties fail to do so."
APPLICATION for Revision from the Order of the District Court of Matale.
Cases referred to:
Ittapana v. Hemawathie –  1 Sri L, R. 476.
Sithy Maleeha v. Nihal Ignatius Perera and Others  3 Sri L. R.271 at 275.
daby v. Banda and Others (Kulatilleka, J.)
Gunawardene v. Jayawardena – 74 NLR 248.
Fernando v. Fernando – 74 NLR 57.
Farquharson v. Morgan – 70 Law Times 152 at 153.
Manohara de Silva for the defendant-petitioner-petitioner.
N. R. M. Daluwatte, PC with K. K. Weragama for the plaintiff-respondent-respondent.
Cur. adv. vult.
September 10. 1999.
By Mortgage Bond bearing No. 9215 dated 21.3.91 the defendant-petitioner-petitioner (hereinafter referred to as the petitioner) hasmortgaged the house and land called Bogahalande Boqahamulahenaowned and possessed by him to the plaintiff-respondent-respondent(hereinafter referred to as the respondent) subject to the terms andconditions stated therein, (vide document P1).
The petitioner failed to redeem the property and thereupon therespondent instituted a mortgage action in the District Court of Mataleagainst the petitioner.
By this application for revision the petitioner seeks to set asidean ex parte order dated 25.7.95 made by the District Court of Matalein terms of section 85 of the Civil Procedure Code, order of sale madeby the court dated 12.3.96 and the order dated 26.12.96 wherebythe learned District Judge has refused to vacate the orders he hadalready made on 25.7.95 and 12.3.96.
We have perused and considered the written submissionstendered on behalf of the petitioner as well as the respondent.
The points in issue raised by the learned counsel for the petitionerare two-fold namely:
(1) whether section 56 of the Debt Conciliation Ordinance barthe District Court from entertaining any action in respect of
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a matter pending before the Debt Conciliation Board and assuch was the judgment and decree entered in this case anullity in law.
(2) whether the learned District Judge has misdirected himselfby his failure to hold a due inquiry into the question of non-service of summons.
In regard to the issue (2) raised by the learned counsel for thepetitioner, he has cited the decision in Ittapana v. Hemawathid') whereit was held by the Supreme Court that the failure to serve summonsis one which goes to the root of the jurisdiction of the court whichmeans that if the defendant is not served with summons or otherwisenotified of the proceedings against him, the judgment entered in suchcircumstances is a nullity and the persons affected by the proceedingscan apply to have the proceedings set aside ex debito justitiae. Videthe decision in Sithy Maleeha v. Nihal Ignatius Perera and Otherd2)at 275.
In the instant case the petitioner has taken up the position thathe was not served with summons and was not aware of the case,(vide paragraph 5 of the petition). Albeit according to journal entrydated 6.7.95 the Fiscal had reported that the defendant had refusedto accept the summons as there was a pending case against therespondent in the Debt Conciliation Board. Thus, the endeavour ofthe learned counsel for the petitioner citing the decision in Ittapana(supra) would be of no avail and the proposition advanced by himshould fail.
Anyway, the main part of the submissions of the counsel appearingfor the petitioner as well as the respondent centered round theproposition advanced by the petitioner that the District Court had nojurisdiction to entertain the plaint. Citing a number of decisions thelearned President's Counsel appearing for the respondent submittedthat as the want of jurisdiction in relation to section 56 of the DebtConciliation Ordinance is latent and depends on the proof of facts;there is a duty cast on the respondent to have pleaded and provedthat the matter pertaining to the action instituted in the District Courtis in respect of an application already pending before the DebtConciliation Board. He further submitted that the petitioner is precludedby delay from raising the objection to jurisdiction.
Baby v. Banda and Others (Kulatilleka, J.)
Learned President Counsel's submission was mainly based on thedecision in Gunawardena v. Jayawardena<3). All the cases referredto by the learned President Counsel are pertaining to objections raisedto want of jurisdiction in terms of section 14 of the Conciliation BoardsAct. It should be stressed that section 14 of the Conciliation BoardsAct tags a condition precedent for the court to have jurisdiction. Itreads as follows:
"14. (1) Where a Panel of Conciliation has been constitutedfor any Conciliation Board area:
(a) no proceedings in respect of any dispute referred toin paragraphs (1), (b) and (c) of section 6 shall beinstituted in, or be entertained by, a civil court unlessthe person instituting such proceedings produces acertificate from the Chairman of such Panel that suchdispute has been inquired into by a Conciliation Boardand it has not been possible to effect a settlement ofsuch dispute by the Board, or that a settlement of suchdispute made by a Conciliation Board has been re-pudiated by all or any of the parties to such settlementin accordance with the provisions of section 13;“.(the relevant portion is in italics).
As regards section 56 of the Debt Conciliation Ordinance thereis no such condition precedent attached to it and there is an absolutebar to jurisdiction. It reads as follows:
"No Civil court shall entertain any action in respect of anymatter pending before the Board."
Hence, we are of the considered view the want of jurisdiction ispatent and objection to jurisdiction may be taken up at any time. Videthe decision in Fernando v. Fernanda. In that case Samerawickrema,J. further observed:
"In such a case it is, in fact, the duty of court itself ex meremotu to raise the point even if the parties fail to do so.“
In the same case reference has been made to Farquharson v.Morgarts) at 153 where Halsbury, LJ. had observed:
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"It has long since been held that when the objection to juris-diction of an Inferior Court appear upon the face of the record itis immaterial how the matter is brought before the Superior Court,for the Superior Court must interfere to protect the prohibition ofthe Crown by prohibiting the Inferior Court from exceeding itsjurisdiction that is to say, where the want of jurisdiction appearsupon the libel in an eccesiastical court, or upon the face of therecord, and does not depend upon a mere matter of fact, and thecause is entertained by an Inferior Court which is clearly beyondits jurisdiction, no consent of parties will justify the Superior Courtin refusing a prohibition."
The respondent in the instant case takes up the position that whenhe instituted the District Court action on 17.10.94 (according to journalentry the action was filed on 25.10.94) he was not aware of anapplication pending before the Debt Conciliation Board and that hecame to know about it "some time after 18.4.95". Vide paragraph 3of the affidavit filed by the respondent. This is a false avermentbecause according to the journal entry of 9.3.95 the Attorney-at-lawfor the plaintiff (respondent) had applied to court for a certified copyof the plaint to be tendered to the Debt Conciliation Board. Thus, eventhough the plaint did not disclose the pending application before theDebt Conciliation Board, the journal entry of 9.3.95 reveals that thecourt had become aware of the pending application. Further, the Fiscalreport which we have already referred to specifically stated that thepetitioner had refused to accept the summons as there was a casepending against the respondent in the Debt Conciliation Board. Thus,the Court should have ex mere motu raised the point in regard tojurisdiction at that point of time.
We hold that in the attendant circumstances of this case whichwe have already referred to and in the interests of justice this is aproper case that warrants the exercise of the revisionary jurisdictionof this Court. Hence, acting in revision we would allow the application,and set aside the orders made by the learned District Judge referredto in the prayer. The petitioner is entitled to costs.
WEERASURIYA, J. – I agree.Application allowed.
BABY v. BANDA AND OTHERS