ESABELLA PERERA HAMINE v. EMALIA PERERA HAMINE

002-SLLR-SLLR-1990-V-1-ESABELLA-PERERA-HAMINE-v.-EMALIA-PERERA-HAMINE.pdf


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Sri Lanka Law Reports
[1990J 1 Sri L.R.
ESABELLA PERERA HAMINE
v.EMALIA PERERA HAMINE
COURT OF APPEAL,
S.N. SILVA, J. AND SENANAVAKE, J.
C.A. APPLICATION No. (C.A.) LA 112/88 -D.C. COLOMBO 9407/POCTOBER 25, 1989.
Civil procedure ■ Execution Proceedings – Eviction under s. 52 (1) ol Partition Law -Restoration ot Possession – Inherent power ■ Applicability of Civil Procedure to executionprocedure on eviction under Partition Decree – Lack of competence not apparent on faceof record – Civil Procedure Code s. 328.
The defendant, a tenant of the house on the Lot allotted to the plaintiff by the decree of apartition case was evicted from this Lot on an application made by the plaintiff under s.52(1) of the Partition Law. The defendant (tenant) – respondent moved for restoration ofpossession and order was made restoring the respondent to possession.
Held :
Ordinarily in an application for execution in terms of s. 224 CPC, or in an applicationin terms of s. 52 (1) of the Partition Law for delivery of possession of a particular allotmentdecreed or sold in a partition action it is not necessary that a respondent be named. Butthere are exceptional circumstances when a respondent has to be named e.g. where s. 334or s. 347 or s. 763 (1) CPC. Section 52 (2) of the Partition Law falls into the categoryrequiring naming of the respondent. Section 52 (2) (a) provides that when it is sought toevict a person in occupation of land or house as a monthly tenant he should be made arespondent and the application has to disclose the material facts that entitle the applicantto secure such eviction. Section 52 (2) (b) requires that the respondent be heard beforeorder is made – the principle of audi alteram partem applies but was breached. There wasa failure to comply with s. 52 (2) of the Partition Law. This makes the order a nullity as theCourt had no jurisdiction. Hence the order restoring the respondent was correct andrecourse to s. 328 CPC to recover possession was not necessary.
A void order resulting from latent or contingent want of jurisdiction can be challengedin the very court that made it or also in collateral proceedings. Where the lack ofcompetence is not apparent on the face of the record extrinsic evidence could be adducedeven to the extent of contradicting the record to establish such lack of competence.
Where an order that is void for a latent or contingent want of jurisdiction is challengedin that Court itself and in the same proceeding, except in the few instances in which aspecific procedure is laid down in the Civil Procedure Code or in any other law for thatpurpose, it has to be done by invoking the inherent jurisdiction of that Court. The inherentpower of the Court is preserved by section 839 of the Civil Procedure Code.
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Esabella Perera Hamine v. Emalia Perera Hamine
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The final decree in the Partition case was entered on 29.01.1964 and the order fordelivery of possession under s. 52 (t) was obtained 23 years later. In the meantime theolaintiff had accepted rent. These facts were not disclosed. There was an abuse of theprocess of Court.
Where there is a specific provision in the Civil Procedure Code inherent power cannotbe invoked. Section 328 CPC is a specific remedy provided'by law to a person who is inpossession of property on a right independent of the judgment debtor to complain of awrongful dispossession upon execution of writ. This section does not empower a personwho has been dispossessed by a writ or order issued contrary to the procedure providedby law to address his grievance to Court. It is not a means to challenge the antecedentvalidity of the writ of execution itself. Therefore a^complaint in terms of s. 328 CPC couldnot have been addressed to the Court by the respondents. The only means available tothe respondents was to invoke the inherent power of the Court.
Cases referred to :
Mohamadu Cassim v. Perianam Chatty 14 NLR 385.
James v. Dochinona 43 NLR 527.
Manomani v. Velupillai 30 NLR 229.:
' (4) Perera v. The Commissioner of National Housing 77 NLR 361, 367, 368.
Gunapala v. Somawathie SC. No. 74780 – SC Minutes of 7.12.81
Seneviratne v. Abeykoon 1986 2 Sri LR 1.
Kamala v. Andiris 41 NLR 71.
Nallakaruppan Chettiar v. Hepponstall 52 NLR 394.
Silva v. Perera 55 NLR 378.
in re Jayatilleke 63 NLR 202.
Leechman & Co. Ltd. v. Rangalla Consolidated Ltd. 1981 2 Sri LR 373.
APPEAL with leave of Court from order of the District Court of Colombo'.
D.R.P. Gunatilake -for the plaintiff'- petitioner.
K. Baiapatabendi for petitioner – respondents.
Cur. adir. vult.
December 15, 1989.
S.N. SILVA. J.
This application for leave to appeal was filed by the plaintiff in D.C.Colombo case No. 9407/P in respect of the order dated 30.08.1988,made by the learned Additional District Judge of Colombo. By the saidorder the learned Additional District Judge directed that the respondentto this application (Edward Perera), who was evicted from premisesbearing number 105 (formerly No. 85), Telengapatha Road, Wattala on
by the Fiscal in execution of an order for delivery of possession
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issued by the District Court, be restored to possession. On notice beingissued of the application for leave to appeal the Respondent objected toleave being granted. Subsequently, it was agreed by Counsel for theplaintiff – petitioner and the respondent that leave may be granted and thatthe appeal be heard early. Accordingly the Court granted leave to appealand the appeal itself was heard on 25.10.1989.
By final decree dated 29.01.1964 entered in the above partition action,the plaintiff – petitioner was declared entitled to lot 1 of the corpus asdepicted in final Plan bearing number 381B dated 06.12.1963. It is notdisputed that the premises number 105 referred to above is situated in lot
By the said final decree the plaintiff – petitioner was ordered to pay asum of Rs. 377/ 05 as compensation for improvements to the 5thdefendant in the partition action. At the hearing before us, Counsel for theplaintiff – petitioner submitted that this amount ordered as compensationwas-paid to the 5th defendant on 26.01.1965. Although compensationwas paid, the 5th defendant continued to be in occupation of the premisesreferred above. It appears that the respondent entered the premises asa tenant of the 5th defendant in about 1965. On 10.08.1975 the 5thdefendant died whilst still in occupation of the premises. It was sought bythe Petitionerto dispute the death certificate marked ‘X1 ’ in the proceedingsbefore the District Court. However, at the hearing before us the deathcertificate was not contested by Counsel for the plaintiff – petitioner. It isclear that the Respondent who was in occupation of the premises underthe 5th defendant continued in occupation after the death of the 5thdefendant. From April, 1981 to February, I987the respondent depositeda sum of Rs. 70/= per mensem as rent at the Wattala – Mabole UrbanCouncil. The certificate issued by the Chairman of the Council marked‘X2’ states that this money has been withdrawn by the plaintiff – petitionerup to August 1986. This matter was not disputed by Counsel for theplaintiff – petitioner.
On 03.C3.1987 the plaintiff – petitioner sold the premises to the 6threspondent (B.S. Fernando) by deed number 2647 attested by HenryPeiris, Notary Public. Thereafter, on 27.03.1987 the plaintiff – petitionercaused the respondent to be evicted from the premises pursuant to anorder for delivery of possession made in terms of section 52 (1) of thePartition Law. The plaintiff – petitioner also caused the 6th respondent,being the new owner to be placed in possession of the premises.
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The respondent filed petition and affidavit dated 21.04.1987 in theDistrict Court stating inter alia that he was the tenant of the premisesunder the plaintiff – petitioner and that the plaintiff – petitioner fraudulentlyand by suppression of material facts secured his eviction in terms ofsection 52 (1) of the Partition Law. The respondent moved that he berestored to possession of the premises from which he was wrongfullyevicted. The plaintiff – petitioner filed objections to this application and the .learned Additional District Judge duly inquired into the matter. By hisorder dated 30.08.1988 the learned Additional District Judge held with therespondent and directed that he be restored to possession.
The learned Additional District Judge has,carefully considered theseveral aspects of the dispute and has come to the following findings, thatare relevant to the hearing of this appeal. They are :
that the respondent was the tenant of the premises on a monthlytenancy under the plaintiff – petitioner at the time he was evictedupon the order for the delivery of possession made under section52(1);
that the respondent had no notice of the application for the order'of delivery of possession, as required by section 52 (2) (a) of thePartition Law ;
that the respondent was evicted by the Fiscal of the Court inexecution of the order for delivery of possession ;
that the application of the respondent for restoration of possessionwas made after the lapse of 15 days from the date of dispossessionand as such the application is not referrabie to section 328 of theCivil Procedure Code ';
that the plaintiff – petitioner had fraudulently caused the evictionof the respondent from the premises by suppressing the fact thathe was a tenant. Since the respondent suffered from that illegalact he should be restored to possession by an order of Court.
It appears that the order is based upon the exercise of the inherentjurisdiction of the Court preserved by section 839 of the Civil ProcedureCode.
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At the hearing before us Counsel for the plaintiff – petitioner did notdispute the finding of the learned Additional District Judge that therespondent was a tenant of the premises on a monthly tenancy under theplaintiff – petitioner. In fact, except for the finding with regard to fraud theplaintiff – petitioner did not dispute any of the other f indings of the learnedAdditional District Judge. It was Counsel's submission that the provisionsof the Civil Proceedure Code apply in relation to the execution of the orderfor delivery of possession. That a person complaining of wrongfuldispossession has to come by means of section 328 of the Code to securean order that he be put back into possession. Counsel submitted thatadmittedly the respondent made his application outside the period of 15days within which an application can be made under section 328. In thecircumstances, the respondent was precluded from securing relief undersection 328 and the learned Additional District Judge could not have hadrecourse to the inherent jurisdiction of Court, to grant him relief since therewas specific provision in law for that purpose.
Counsel for the respondent submitted that section 328 of the CivilProcedure Code was not applicable in a situation in which the validity ofthe order for execution is disputed and that there was a proper exerciseof the inherent jurisdiction of the Court by the learned Additional DistrictJudge.
In view of the foregoing submissions we have to consider the validityof the order for delivery of possession Upon which the respondent wasevicted and whether restoration of the respondent to the premises couldbe justified upon an exercise of the inherent juridiction of the DistrictCourt.
The validity of the order for delivery of possession :
Ordinarily, in an application for the execution of a decree to pay money,made in terms of section 224 of the Civil Procedure Code or, a decree forthe delivery of movable property, made in terms of section 320 or, adecree for the delivery of possession of immovable property, made interms of section 323, it is not required that the judgment – debtor be madea respondant to the application. Similarly, in an application made in termsof section 52 (1) of the Partition Law for the delivery of possession of aparticular allotment decreed or sold in a partition action, it is not requiredthat a person be made a respondent. However, there are certain
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Esabella Perera Hamine v. Emalia Perera Hamine (S. N. Silva, J.)
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exceptional instances in the Civil Procedure Code where a person has tobe made a respondent to an application for execution. Some of theseinstances are contained in section 334 which relates to an enforcementof a mandatory and restraining decree, in section 347where the applicationfor execution is made after the lapse of more than one year from the dateof the. decree or decree in appeal and in section 763 (1), which relates tothe execution of a decree appealed against. Section 52 (2) of the PartitionLaw falls into the latter category of instances where a person has to bemade a respondent to an application for execution. Subsection 2 (a) ofthat section provides that when by the order for delivery of possession,it is sought to evict a person in occupation of a land or house as a monthlytenant, that person should be made a Respondent to the application. It isalso required that the application should disclose material facts thatentitle the applicant to secure such eviction. Subsection (2) (b) requiredthat the respondent be heard with regard to the application and it laysdown the matters to be considered by Court at such hearing.
The principle of audi alteram partem is a cardinal principle of naturaljustice that postulates two elements :
that a person who wili be affected by an order should have prior-notice of the matters against him, and
that such person be heard in opposition to the order that issought, before it is made.
We thus see that section 52 (2) is a classic instance where the principleof audi alteram partem is given full statutory effect, at the stage ofexecution of a decree.
The respondent has been in occupation of the house in question as atenant and he was evicted upon the impugned order for the delivery ofpossession. Therefore his case comes squarely within the ambit ofsection 52 (2). He should have been made a respondent to the application.for the order for delivery of possession in terms of subsection 2 (a) andbe heard on the matters stated in subsection 2 (b) before the order fordelivery of possession was issued. This has not happened. Therefore weare of the view that there has been a failure to comply with the principleof audi alteram partem as embodied in section 52 (2) of the Partition Law.
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in considering the effect oi such tailure, it is necessary to bear in mindthe nature of the requirement that is violated and whether the requirementis mandatory in nature so as to affect the competence of the 'Court itself.There may be instances where a provision that is only directory iscontravened where the failure does not affect the competence of theCourt. In our view, the failure to comply with the provisions of section 52(2) of the Partition Law should produce the same effect as a failure toserve summons on a defendant. Because, in both instances what isviolated is the principle of audi alteram partem. The Supreme Court hasrepeatedly'held that decree obtained without service of summons on thedefendant is void because the Court lacks competence or jurisdiction atthe time the decree is entered. The rationale underlying the decisions ofthe Supreme Court in the cases of Mohamadu Cassim v. Perianam Chetti(1 ); Jamis v. Dochinona (2); Manomani v. Velupillai (3); Perera v. theCommissioner for National Housing (4) ; Gunapala v. Hemawathie (5);is that the failure to serve summons on the defendant and the attendentcontravention of the principle of audi alteram partem denudes thejurisdiction of the Court and that the decree entered in those circum-stances is void.
In the case of Perera v. the Commissioner for National Housing(Supra) Tennekoon, C.J. drew a distinction between two classes ofjurisdictional defects. The first class consists of instances where there isa “ patent" or" total” want of jurisdiction. In this class, there is a" delectusjurisdictionis “ and the Court lacks jurisdiction over the “ cause or matteror over the parties. In the second class of cases the Court has jurisdictionin the respects referred to above but is denuded of competence orjurisdiction “ because of a failure to comply with such procedural require-ments as are necessary for the exercise of power by the Court “. Here,the lack of competance is described as a “latent" or “ contingent” want ofjurisdiction or a “defectus triationis”. Tennekoon C.J. held that bothclasses constitute jurisdictional defects that result in judgments or ordersthat are void. The difference being, that in the latter class of cases thejudgments or orders will be void only against the party on whom itoperates and have some effect until they are set aside by- a Court ofcompetent jurisdiction. They may be validated as a result of waiver,acquiescence or inaction on the part of the party on whom it operates.
In the case of Perera v. the Commissioner for National Housing(Supra) it was held that the failure to serve summons on the defendant-
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resulted in a jurisdictional defect of the latter class, in relation to thedecree that is entered against such defendant. A fortiori, a non -compliance with the requirements of section 52 of the Partition Lawshould also result in a similar jurisdictional defect because the proceduralbasis of the requirement to serve summons on a defendant and of therequirements in section 52 (2) of the Partition Law ( although limited inscope ) are the same, namely, the due compliance with the principle ofaudi alteram partem.
For the reasons stated above and upon a consideration of, theprovisions of section 52 of the Partition Law, we hold that when anapplication is made in terms of section 52 (1) of the Partition Law for anorder of delivery of possession of an allotment of land decreed or sold ina partition action and the applicants seek by that order to evict any personin occupation of a land or a house standing on such allotment, as amonthly tenant and who is liable to be evicted by such applicant, it ismandatory that the following requirements of section 52 (2) be compliedwith –
c

The application for the order for delivery of possession be bypetition to which the person in occupation as a monthly tenant ismade a-respondent;
The petition to set out the material facts that entitle the applicantto obtain an order of eviction ;
The respondent to be heard by Court on the matters to be statedin section 52 (2) (b) before the order is issued.
The failure to comply with the foregoing requirements will result in theorder for delivery of possession that is issued being void as against theperson in occupation of the land or house as monthly tenant. Such ordermay however be validated by waiver, acquiescence or inaction on the partof the monthly tenant.'
On the facts as set out in the preceding sections of this judgment, it isclear that there has been a non – compliance with the foregoingrequirements in relation to the order for delivery of possession upon whichthe respondent was evicted from the houseJie was in occupation of as amonthly tenant. The respondent has filed a petition and affidavit in theDistrict Court within about a month, complaining of wrongful eviction.
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Hence the respondent is not guilty of waiver, acquiescence or inaction.In the circumstances we are of the view that the order for delivery ofpossession upon which the respondent was evicted was void as againsthim and that the learned Additional District Judge correctly acted on thatbasis.
Does Inherent Jurisdiction Lie To Make An Order For Restoration ?
In the case of Perera v. the Commissioner for National Housing(Supra) it was held (page 367 and 368) that a void order resulting from alatent or contingent want of jurisdiction can be challenged both in the veryCourt'and in the same proceedings in which it was made and also incollateral proceedings. It was also held that where the lack of competenceis not apparent on the face of the record extrinsic evidence could beadduced, even to the extent of contradicting the record, to establish suchlack of competence. In that case a tenant had been evicted by an orderof the Court of Requests based upon a decree that was void for non -service of summons on the defendant. It was held that in a collateralproceeding, i.e., an application made against such eviction under theProtection of Tenants (Special Provisions) Act, No. 28 of 1970, theCommissioner for National Housing could act on the basis that theeviction was not upon an order of a competent Court.
Where an orderthat is void fora latent or contingent want of jurisdictionis challenged in that Court itself and in the same proceeding, except in thefew instances in which a specific procedure is laid down in the CivilProcedure Code or in any other law for that purpose, it has to be done byinvoking the inherent jurisdiction of that Court. J.F.A. Soza, a retiredJudge of the Supreme Court in an illuminating article titled" The inherentpowers of the Court", published in (1988) Volume II Part II page 42 of theBar Association Law Journal has stated as follows :
“ The Courts are often faced with situations where they are obligedto act in debite justitiae to do that real and substantial justice for theadministration of which alone the Courts exist. A Judge will not fold hishands and allow rank injustice to be done just because no rule ofprocedure is available
The inherent power of the Court is preserved by section 839 of the CivilProcedure Code. This section, introduced by an amendment of 1921, isa verbetim reproduction of section 151 of the Indian Code of Civil
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Esabella Perera Harnine v. Emalia Perera Hamine (S. N. Silva, J.)
Procedure of 1908. This section preserved the power of the Court to makeorders “ as may be necessary forthe ends of justice orto prevent an abuseof the process of Court". A survey of the case law in India and here showthat Inherent power has been used by courts to meet a wide variety ofsituations. The case of Seneviratne v. Abeykoon (6) is a clear instanceWhere inherent powe^was used by a Court to order the restoration topossession of a tenant who had been evicted by a landlord, taking thelaw into his own hands. In that case the landlord instituted action forejectment of the tenant in the District Court. This action was dismissedafter a re-trial that was ordered by the Supreme Court, and judgment wasentered in favour of the defendant – tenant. An appeal was filed againstthis judgment by the plaintiff – landlord. Whilst this appeal was pendingbefore the Court of Appeal the plaintiff took possession of the premises,forcibly on the basis that the tenant had abandoned the premises.Thereupon, the tenant made an application that he be restored topossession and the District Court made order^on this application that thetenant be restored to possession. In an appeal filed by the plaintiff to thiscourt and later to the Supreme Court it was held that the facts statedabove were such that the District Court could have invoked the inherentpower to make the order of restoration. Tambiah, J. in his judgementstated as follows, (at page 6): “ An extraordinary situation had arisen andto deal with it there was no express provision in the Civil Procedure Code.It is to meet such a case that section 839 was enacted. It empowers theCourt,to make such orders as may be necessary for the ends of justiceor to prevent abuse of the process of Court “.
The facts referred to above reveal clearly that the plaintiff – petitionerin this case received rent from the respondent from April, 1981 to August,1986. He refrained from withdrawing the rent that was deposited as usualfrom September, 1986 upto February, 1987. In March, 1987 he sold thepremises to the 6th respondent, and thereafter obtained the order for thedelivery of possession. The final decree upon which the order for deliveryof possession was issued had been made on 29.01.1964, over 23 yearsbefore the application for the order for delivery of possession was made.The plaintiff – petitioner suppressed these facts from the District Court andobtained the order for delivery of possession contrary to section 52 (2) ofthe Partition Law. These facts represent a clear abuse of the process ofCourt by the plaintiff – petitione r. Therefore upon an application of the ratioin the case of Seneviratne v. Abeykoon (Supra) the respondent could berestored to possession by means of the inherent power of the Court.
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Counsel for the plaintiff – petitioner submitted that recourse could notbe had to the inherent power of Court since the respondent had anexpress remedy provided for in section 328 of the Civil Procedure Code.In this regard Counsel relied on the well accepted exception to the use ofinherent power of Court, namely that it will not be used for the benefit ofa person who has a remedy under the Civil Procedure Code or any otherlaw. The judgements of the Supreme Court in the cases of Kamala v.Andiris (7), Nallakaruppan Chettiar v. Hepponstall (8), Silva v. Perera(9) and In re Jayatittake (10) reveal that recourse cannot be had toinherent power where there is specific provision contained in the law. Inthe case of Laechman & Co. Ltd. v. Rangalla Consolidated Ltd. (11), itwas held that where there is specific provision in the Civil ProcedureCode, inherent power cannot be invoked to apply the Roman Dutch Lawwhich had been superseded by the Civil Procedure Code.
Section 328 of the Civil Procedure Code empowers a person otherthan-a judgement: debtor, or a person in occupation under him, who isdispossessed of any property in execution of a decree, to petition theCourt complaining of such dispossession within a period of 15 days fromthe date of dispossession. Admittedly, the respondent did not make hiscomplaint within this period of 15 days. However the question is whetherthe procedure in section 328 could be availed of by the respondent.
The ambit of section 328 is best revealed by an examination of thematters to be considered by Court upon a complaint being made in termsof that section. The Court has to consider whether “ the person dispos-sessed was in possession of the whole or part of such property on his-ownaccount or on account of some other person other than the judgment -debtor “. It is only if the Court is satisfied on this matter that it can orderrestoration to possession of that person. Therefore it is clear that section328 is a specific remedy provided by law to a person who is in possessionof property on an independent right, (that is a right independent of thejudgement – debtor) to complain of a wrongful dispossession upon theexecution of the writ. This section does not empower a person who hasbeen dispossessed by a writ or order issued contrary to the procedureprovided by law to address his grievence to Court. It is not a means tochallenge the antecedent validity of the writ of execution itself. It is ameans to challenge the manner in which the writ was executed and to beavailed of by a person who is not liable to be dispossessed of the property.
Crindlays Bank Ltd. v. Mackinnon Mackenzie & Co. Ceylon Ltd.
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Therefore we are of the view that the respondent -whose complaintregarding dispossession, is based on a procedural lapse affecting thecompetence of the Court itself to issue the order of-delivery of possession,could not have addressed a complaint in terms of section 328 of the CivilProcedure Code. The only means available to the respondent was toinvoke the inherent power of the Court. As stated earlier the facts reveala case that eminently befits the use of inherent power to remedy the'abuse of the'process of Court committed by the plaintiff – petitioner.Therefore we' affirm the order made by the learnedAdditional District Judge on 30.08.1988 and dismiss this appealwith costs fixed at Rs. 1,050/=.
SENANAYAKE, J. • I agree.
Appeal dismissed.