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.
Sri Lanka Law Reports
11990) 1 Sri L.R.
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
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.
Sri Lanka Law Reports
(1990} 1 SriLR.
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.
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.