042-SLLR-SLLR-1998-V-3-FATIMA-v.-MOHIDEEN-AND-ANOTHER.pdf
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FATHIMA
v.
MOHIDEEN AND ANOTHER
COURT OF APPEALDE SILVA. J..
WEERASURIYA, J..
A. NO. 576/92
C. COLOMBO NO. 8699/MSEPTEMBER 21 ST, 1998
Civil Procedure Code S. 188, S. 408 – Consent Decree – Settlement on mattersextraneous to the action – subject-matter of another action. – Lack of jurisdiction- Patent or latent.
The plaintiff-respondent instituted action against the defendant respondent claimingdamages, consequent upon the demolition of five premises. The matter was settledwith the defendant-respondent agreeing to purchase the allotment of land whichis the subject-matter in another case 14762/L, which had been instituted by thepetitioner upon a valuation by a Valuer.
Once the deed is executed the plaintiff-respondent and the petitioner were towithdraw the 4 connected cases which were pending against the defendantrespondent.
The petitioner who is the wife of the plaintiff-respondent moved court to set asidethe settlement. The application was refused by the learned District Judge.
Held:
It is common ground that the settlement and the consent decree did notdeal with the matters which were the subject-matter of the action. Sucha decree is not one that the court had power to enter under s. 188 CPC.Nor is it one that the court had the power under sec. 408 CPC.
The subject-matter of the action has to be determined by having recourseto the pleadings of a particular case.
As the subject-matter of the two cases are distinct – and independent ofeach other a party is precluded from enlarging the subject-matter by wayof a settlement by bringing the subject-matter of one action to the subject-matter of another action – there was a patent lack of jurisdiction.
APPLICATION in Revision from the Order of the District Court of Colombo.
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Cases referred to:
A. D. Appuhamy v. T. E. Perera Hamine – 63 CLW 84.
Perera v. Commissioner of National Housing – 77 NLR 361 at 366.
Faiz Musthapa PC, with H. Withanachchi for petitioner-petitioner.
L. C. Seneviratne PC, with Lakshman Perera and Arjuna Weerasinghe fordefendant-respondent.
Cur. adv. vult.
December 08, 1998.
WEERASURIYA, J.
By this application, petitioner-petitioner (hereinafter referred to as thepetitioner) is seeking to set aside the order of the Additional DistrictJudge of Colombo dated 22.06.92.
The facts pertaining to this application as set out by the petitionerare briefly as follows:
The plaintiff-respondent by plaint dated 15.12.90 instituted actionagainst the defendant-respondent claiming damages in a sum ofRs.1,500,000 arising, consequent upon the demolition of premisesbearing Nos. 15/22, 15/23, 15/24, 15/25 and 15/26, New Moor Street,Colombo 12.
On 24.05.91 when the case came up for trial parties agreed tosettle the case inter alia on the following terms:
that the defendant-respondent has agreed to purchase theallotment of land described in the schedule to the plaint inDC Colombo case bearing No. 14762/L which had beeninstituted by the petitioner upon a valuation by a valuerselected by the defendant-respondent from a panel of valuersnominated by the plaintiff-respondent;
that upon the deposit of the purchase price by the defendant-respondent, the petitioner would execute a deed of transfer;
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that on the execution of the said deed the plaintiff-respondentand the petitioner would withdraw cases bearing Nos.5700 ZL, 5701/ZL, 5702/ZL. 5703/ZL and 14762/L whichwere pending against the defendant-respondent.
that in the event of failure on the part of the plaintiff-respondent to execute the deed within two weeks upon thedeposit of money by the defendant-respondent, the Registrarof Court would execute a deed of transfer in favour of thedefendant-respondent.
Carl Moses, Consultant Valuer, who was selected by thedefendant-respondent, in accordance with the terms, submitted avaluation report dated 06.09.91 and the petitioner on 08.10.91 filedobjections to the aforesaid settlement praying that it be set aside andthat she be discharged from the obligation under the said settlement.The defendant-respondent filed a statement of objections to theapplication of the petitioner and the Additional District Judge havingcalled upon the parties to tender written submissions, by his orderdated 22.06.92 refused the application of the petitioner. It is from theaforesaid order of the Additional District Judge that this applicationfor revision has been filed.
At the hearing of this application, learned President’s Counsel forthe petitioner submitted the following matters:
that the District Court had no jurisdiction to enter the saidsettlement;
that the Additional District Judge had erred by failing toconsider the fundamental issue whether the plaintiff-respondent had the authority of the petitioner to bind herto obligations in a case to which she was not a parly.
The contention of learned President's Counsel for the petitionerthat the District Court had no jurisdiction to enter the said settlementwas based on the following grounds:
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(a) that the settlement was not in respect of the subject-matterof the action;
(£>) that the District Judge had misconstrued section 408 of theCivil Procedure Code.
In the case of A. D. Appuhamy v. T. £. Perera Hamind'» wherea decree entered in terms of a settlement arrived at by the partiesof an action did not deal with matters which were the subject-matterof that action but embodied matters extraneous to the action and dealtwith the subject-matter of other actions between the parties, it washeld that such a decree is not one that the court had power to enterunder section 188 of the Civil Procedure Code; nor is it one that thecourt had power to pass under section 408 of the Code. It wascommon ground in that case, that the settlement and the consentdecree did not deal with matters which were the subject-matter ofthe action.
It is to be noted that the petitioner who is the wife of the plaintiff-respondent had independently instituted case No. 14762/L in theDistrict Court of Colombo against the defendant-respondent seeking,inter alia, a declaration that she was entitled to a right of way forcertain land owned by her. Apart from the present case, plaintiff-respondent had instituted cases bearing Nos. 5700/ZL, 5701/ZL,5702/ZL and 5703/ZL against the defendant-respondent seeking reliefto prevent forcible ejection from such premises. The settlement enteredupon on 24.05.91 between the plaintiff-respondent and the defendant-respondent, required the petitioner to sell the property which formedthe subject-matter of the case bearing No. 14762/L, to the defendantfor a purchase price to be determined by a valuer in accordance withthe terms of settlement. The said settlement also provided for awithdrawal of case No. 14762/L instituted by the petitioner againstthe defendant-respondent. Thus, the settlement provided for a .transferof property owned by the petitioner to the defendant-respondent whichformed the subject-matter of action bearing No. 14762/L instituted bythe petitioner.
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However, it is to be observed that the said settlement providedfor the following consequential clauses namely':
that in the event the defendant-respondent makes default indepositing the money, being the consideration for the saleof land as stipulated in the settlement, judgment is to beentered in favour of the plaintiff-respondent as prayed forin the plaint;
that if the plaintiff-respondent failed to fulfil his part of thesettlement in nominating the panel of valuers within thestipulated time, that the plaintiff-respondent's action will standdismissed.
Learned President's Counsel for the defendant-respondentsubmitted that these two consequential clauses in the settlement wereclearly connected to the action in respect of which the settlement wasentered, and therefore the settlement was necessarily in respect ofthe subject-matter of the action.
Section 408 of the Civil Procedure Code provides that agreementor compromise once notified to court by motion made in presenceof or notice to all the parties concerned, the court shall pass a decreein accordance therewith, so far as it relates to the action and thatsuch decree shall be final so far as relates to so much of the subject-matter of the action as is dealt with by such agreement or compromise.It would be clear that the subject-matter of the action has to bedetermined by having recourse to the pleadings of a particular case.Therefore, one has to determine the subject-matter of DC Colombocase No. 8699/M by the material furnished in the plaint and the answer.The subject-matter in case No. 8699/M and 14762/L are quite distinctand independent of each other.
Learned President's Counsel for the defendant-respondentcontended that terms and conditions of the settlement must bedistinguished from the clauses in the settlement which contain
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consequential clauses which would automatically follow the perform-ance or non-performance of the terms of the settlement. It is pertinentto observe that section 408 of the Civil Procedure Code clearlycontemplates a settlement by the parties pertaining to thesubject-matter of the action and nothing else.
Learned President's Counsel for the petitioner submitted that therewas a total lack of jurisdiction inasmuch as section 408 of the CivilProcedure Code permitted a compromise only in so far as it relateto the particular action and subject-matter of the action. However,learned President's Counsel for the defendant-respondent contendedthat even assuming that District Court lacked jurisdiction to allow theparties to enter into a settlement, the failure of the plaintiff-respondentto challenge the validity of the said settlement would nevertheless bindthe parties to the said settlement, if it is not set aside. Thus learnedPresident's Counsel's contention was that, in the circumstances thiswas an instance of a latent want of jurisdiction. On this basis hesubmitted the following matters namely:
that the failure on the part of the plaintiff-respondent to objectto such jurisdiction would amount to acquiescence; and
that the petitioner had in fact accepted the settlement by filinga motion in case No. 14762/L.
The question that has to be discussed is whether or not the DistrictCourt had jurisdiction to permit a settlement outside the ambit of theprovisions of section 408 of the Civil Procedure Code. The settlementeffected did not bear any connection to the subject-matter of the casebearing No. 8699/M. The subject-matter of case bearingNo. 14762/L is quite distinct and independent of the subject-matterof case bearing No. 8699/M. Thus, in view of the provisions of section408 of the Civil Procedure Code, District Court had no jurisdiction toenter a decree in terms of the said settlement. As the subject matterof the two cases namely, 8699/M and 14762/L are distinct andindependent of each other, a party is precluded from enlarging the
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subject-matter by way of a settlement by bringing the subject-matterof one action to the subject-matter of the other action. Therefore, itwould be seen that in the instant case there was a total lack ofjurisdiction ie an instance of a patent lack of jurisdiction to effect asettlement in total disregard of the provisions of section 408 of theCivil Procedure Code.
In the case of Perera v. Commissioner of National Housing at366 it was observed as follows:
”. . . In that class of case where the want of jurisdiction is patentno waiver of objection or acquiescence can cure the want ofjurisdiction, the reason for this being that to permit parties by theirconduct to confer jurisdiction on a tribunal which has none wouldbe to admit a power in the parties to extend a jurisdiction beyondits existing limits, both of which are within the exclusive privilegeof the legislature . . ."
The contention of learned President's Counsel for the defendant-respondent that the petitioner's remedy in this instance ought to beby way of restitutio in intergrum is untenable for the reason that suchrelief could be invoked only by a party to a settlement.
In the circumstances, it seems to me that the District Court hadno jurisdiction to effect the impugned settlement in terms of section408 of the Civil Procedure Code. In the result, I proceed to set asidethe settlement dated 24.05.91 and the order of the District Judge dated22.06.92. This application is allowed with costs.
DE SILVA, J. – I agree.
Application allowed.