FERNANDO v. HEMACHANDRA

033-SLLR-SLLR-1989-V-1-FERNANDO-v.-HEMACHANDRA.pdf


CA
Fernando v. Hemachandra
379
FERNANDOV. ,
HEMACHANDRA
COURT OF APPEALBANDARANAYAKE. J. & .
WIJETUNGA. J.
C; A. APPLICATION NO. 237/87 ■ ■
D. C. PANADURA NO. 13458 ,
APRIL 29. 30 AND MAY 5 AND 6. 1987 '.
Execution — Stay of execution of writ — Substitution' of assignee of. pjaintiff■ decree holder — Non-compliance-with section 339 C.P.C. — Jurisdiction' —Execution pending appeal.-.
The plaintiff had sued the defendant .as a trespasser for ejectment from a part of: •premises No. 220/^5 Gal|e Road.. Judgment, was entered on 12,12.74 forplaintiff. -The-defendant appealed.bujhdied when the appeal was' pending. Theappeal was. rejected on 28.3.78 as no substitution has been Effected. Plaintiff-applied to Jtave the writ -executed and this was allowed on 17.1.83. Anapplication for'stay of writ was-refused. Thereafter the petitioner was: noticed toappear in court-on 26.11.84 to answer a.charge of contempt for allegedlyresisting the Fiscal. Plaintiff however did -.not pursue this but. applied forexecution of writ on 20.8.85. Plaintiff then assigned the decree and theapplication .was withdrawn- to1 be ,renewed ;after substitution. The /presentrespondent applied to have himself substituted on the .'basis of being anassignee of the decree. On 19.02.87 the application for.substitution of therespondent.in the room of the plaintiff was allowed- This order was being soughtto be revised. A stay order was also entered to be effective till 1 9.02.87. Therespondent filed objections and on 31.3.87 the Court fixed inquiry for 29.04.87 .and extended the'stay order up to 30.04.'87.The immediate question was thisextension which stood extended until T 5.06.87.
The-order was attacked on.3 grounds:.. . .
(T) No proper proof of assignment.of decree '. –
Non-'compl.iarice with S. 339 C.P.C. •
On^ 12.-12.74 the District Court had no'jurisdiction as1 the case stoodtransferred to the Magistrate's Court by operation of the1 Administration of■Justice Law.
Held…•- –
The deed of assignment was-admitted in evidence without objection at theDistrict Court. No objection that it has not-been duly proved can be entertained
in.appeal:.-
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The original plaintiff had not been made a party respondent as is requiredby S. 339 C.P.C. In the application dated 20.05.86 which is the applicationrelevant to the impugned order the original plaintiff had been made a respondentand he was present in Court and did not object. This was sufficient compliancewill S. 339 C.P.C.
The action had been valued at Rs. 5000/- and no objection had been takento this valuation. The valuation of the subject matter as given in the plaint primafacie determines the jurisdiction of the Court. An objection to jurisdiction mustbe taken at the earliest opportunity. There was no need to transfer the case tothe Magistrate’s Court. The action was within the general and local jurisdictionof the District Court. Hence its decision will stand until it is set aside.
There is a specific finding by the trial judge that the defendant was not atenant and was in forcible occupation of the premises. The defendant hadplaced no material before Court on the question of substantial loss. The materialon which the stay order has been obtained was quite unsatisfactory and it
should not be extended.
■ Cases referred to:
7.. Siyadoris v. Danoris 42 Nl.R 311;•
Andrishamy v. Ba!ahamy 909 Matara' Case, 49
Andr'i v. Siriya et al. 27 NLR 70•
Jalaldeen v. Rajaratnam [1 986] 2 Sri LR 201
' Perera V: The Commissioner of National Housing 77 NLR 361,366
– ', 1 – ©•
Sokkal Ram Sait v. Nadar et al. 41'NLR 89
Charlotte Perera v. S. Thambiah and another [1 983] 1 Sri LR‘352.
Bil/imoria vPMinister of Lands |1 978 – 79] 1 Sri LR 10
'APPLICATION seeking’revision of.District Judge's order
’ :■'-Ji*.■";
F. Mustapha with K. Abeypala for Petitioner
N.R: M. Daluwatte. P.C. with Mrs. Ramani de Saram and Miss S. Nandadasa for.Respondent.
Cur. adv. vult
381
CAFernando v. Hemachahdra (Wijetunga. J.j
June 12. 1987WIJETUNGA. j:
The .substituted-defendant-respopdent-petitioher (hereinafterreferred to as the petitioner) seeks to .revise, the order of theDistrict. Judge dated 19.2.87, allowing the application of the-substituted-plainti.ff-petitioner.-respondent (hereinafter referred toas the respondent) for execution of the'decree entered in thiscase. The immediate matter before us .concerns the .order of thiscourt staying the execution of writ pending the determination ofthis application. '.■,
In this action, the plaintiff sought to eject the defendant from apart, of premises bearing assessment No. 220/5, Galle Road;Panadura on the ground that the.defendant was a trespasser onthe'said,premises.. Judgment was entered against the defendanton 1,2 J 2.74: The defendant appealed against the said judgmentbut.the appeal was rejected on 28.3.78 as substitution had riot
been effected in, place of the appellant whd died pending theappeal. Thereafter, the-plaintiff made an application to' execute'the-said decree and .the District Court made order_on. 1 7.T.83allowing the application for execution. The petitioner alleges thatthe plaintiff, did-no.r take -any steps to effect execution. The.petitioner however made an application to the District Court tostay writ of execution -but the Court made order- on 29.8.83refusing her application and oh 15.11.83 it also ordered theissue of writ of possession. The petitioner was thereafter noticedto appear in Court on 26.1 1.84 for allegedly resisting the Fiscalin executing the writ and proceedings were instituted by theplaintiff against'her for contempt of Court. But. without pursuingthis matter, the plaintiff "once again made a'n application on
20.8.85 for execution of writ, which application he withdrew on
1.85 stating that it would be pursued later after effectingsubstitution of the plaintiff. Thereafter-the present respondentmade an application on'1 6.4.86 to substitute himself in place of
The plaintiff and for. the execution of the said decree, on the basisthat the rightsin the decree had been assigned to him by theplaintiff. By his order dated 19.2.87. the .learned District Judgeallowed the said application of the respondent, which order issought to be revised in these proceedings.
. The present application had been' filed in this Court, on25.2.87 and been supported by counsel for the petitioner on 27.2.87.
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The Court had made order to issue notice on the respondentreturnable on 30.03.87 and also to issue a stay order in terms ofpara (c) of the prayer to the petition, to be effective till 31.3.87.By this order the execution of writ in pursuance of the order ofthe District Judge dated 1 9.2.87 was stayed.
•On 27.3.87 the objections of the respondent had been filedand on 31.3.87 this Court made order that the matter of theextension of the stay order be taken up for inquiry on 29.4.87.The stay order was extended up to 30.4.87. The immediatematter before us is the question of extension of the stay order,which has been objected to by the respondent and which nowstands extended until 1 5.6.87.
’ Learned counsel for the petitioner submitted that the stayorder should be extended, as prima facie there were substantialmatters which merited examination by this Court. He attacked the-.order complained of on three grounds, viz.—
There was no proper proof of assignment of the decree.
There was non-compliance with Section 339 of the CivilProcedure Code in that the original plaintiff had not been
– made a respondent to the application for execution.
and (iii) On the date of judgment, i.e. 1 2.1 2.74. the District Courthad no jurisdiction over this matter as the case stoodtransferred to the Magistrates Court by operation of theprovisions of the Administration of Justice Law.
– In regard to the first submission. Mr. Mustapha referred us topara 10-of the petition dated 25.2.87 filed in this Court. It washis contention that deed No. 1 94 attested by P. H. Alankarage.Notary Public on 13th February, 1986 (P.2), by which it is-claimed that the original plaintiff M. Kanagalihgam assigned thedecree of this case to the petitioner, is a document which is opento grave suspicion and doubt. He pointed out that the attestationshows that the Notary-did not know M. Kanagalingam and furthersubmitted that the deed itself had not been duly proved in termsof Section .68 of the Evidence Ordinance. He stated that the
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Fernando v. Hemachandra (Wijetunga. J.)383
alleged transfer of the premises in suit by the plaintiff to therespondent on 5.10.83 on.deed No. 2400 attested by DC. deSilva, Notary Public too had not been duly proved'as the originalplaintiff M.. Kanagalingam had signed' as the Attorney of the.vendors P. Balachandran-and M. P. Balachandran. but no powerof attorney had been produced.
As regards -non-compliance with Section 339 of the CivilProcedure Code, he contended that the Section .requires that all■the parties to the action or their representatives should be made,respondents to such an application by the assignee, but as isevidenced by P.3, the original plaintiff had not been made a partyto that application. When learned counsel for the respondentreferred him to the petition dated 20.5.86 (R.9). he argued thatmerely mentioning the original plaintiff M. Kanagalingam iri thecaption as plaintiff-respondent was’not sufficient compliancewith Section 339, notice had not been issued on. him and thepresence of the original plaintiff in Court on 14.7.86 was'highlyimprobable. '
The third'ground on which he relied was that on 12.12.74when judgment was-delivered in this case, the District Court, ofPanadura had no jurisdiction in respect of this matter as the casestood transferred to the. Magistrate's Court under the provisionsof the Administration of Justice Law. The basis of this submissionwas that this being a possessory action and the damages claimedby the plaintiff being Rs. 75/- p.m. it was the Magistrate's Courtwhich had exclusive jurisdiction in the matter, as it was withinthe pecuniary limit of Rs. 1 500/-.
When the hearing of this matter was resumed on 30.4:87. M-r.Daluwatte for the respondent stated that Mrs: Ramani de Saram.'Attorney-at-Law. Panadura wished to make a statement from theBar as she had been present.in the District Court of Panadura on
when the original plaintiff M. Kanagalingam appeared in.Court.
Mrs. de Saram then stated as-follows:— "I was in the DistrictCourt on that date with Mr. Kanagalingam who came to Court toconsent to Mr. Ridley Hemachandra de Silva being substituted as
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the plaintiff in District Court Case No. 1 3458/RE. My father wasthe instructing attorney in these proceedings and I attended tothe District Court work. I 'know Mr. Kanagalingahn personally andhe has been a client of my father Mr. de Silva for a long time. Infact Mr. Kanagalingam was known to half the town of Panadura.This was on a Monday and it took the whole day for theirsubmissions. On the identity which was important to prove, therewas no objection whatsoever, as to the identity of Mr.Kanagalingam and there was a lawyer present for the other sideand there were no objections from that side."
Mr. Daluwatte also sought the permission of Court to file anaffidavit by Mrs. de Saram-in this connection.-
Mr. Mustapha for the petitioner submitted that the Court'should not- take cognizance of either the statement of theAttorney-at„-Law or the contents of the affidavit in considering thepresent application. It was his contention that the statement aswell as the affidavit seek to contradict the record.
Mrs. de Saram also informed the Court of the circumstancesunder which the original plaintiff Kanagalingam came to appearin Court oh 14.7.86. She stated, that the Attorneys for thesubstituted plaintiff-informed Kanagalingam's brother who wasliving in Mutuwal regarding the next date on which the case was.to be called. Mr. Mustapha objected to that statement on the.ground.of hearsay.''
. When .hearing was resumed on 5.5.87. Mr. Mustapha furthersubmitted.thatthe affidavit of Mrs. de Saram does, not advert tothe fact of'the appearance of Kanagalingam on a message givenby. his brother and there was no material to. show how he cameto Court., Further, .the affidavit does not say that he entered anappearance and the question whether he did in fact come toCourt on that day was still in doubt. He invited the Court.to go bythe-Journal Entries of the case and not be influenced by theraffidavit-.or' the statement of Mrs. de Saram. Attorney-at-Law. Inany event, he- contended that the affidavit was of minimal..evidenciary value .as regards the facts.
385
CAFernando v. Hemachandra (Wijetunga. J.)
Mr. Daluwatte for the ^respondent submitted that there wasproper proof of .assignment of the'decree and that the .learnedDistrict Judge had considered this aspect of thernatter in hisorder of. 1 9.2.87.
On the question of non-compliance with Section 339. hepointed out that, the original plaintiff Kanagalingam had in factbeen made a party to that application and according to_ JournalEntry No. 90 of 14.7.86 (R.8) he had been present in Court andhad indicated that he had no objection to the application. It washis submission that the substitution of the present respondent inplace of the decree-holder was thus in conformity, with Section339. . -.
In regard to jurisdiction, it was.Mr: Daluwatte’s submission thatthe action having been valued at Rs. 5000/-:and no objectionhaving been taken in the trial Court to the said valuation at anystage, it was competent for the District Court to continue, withthe proceedings even after the coming into operation of theAdministration of Justice Law. ■
As regards the stay order that had. been obtained, he submittedthat the petitioner had‘succeeded in', doing so .by the deliberatesupression of facts and' thus'misleading the Court. He pointed,out that the averment in para 4 of the petition filed in this Courtwherein it is stated that though the District Court made order on1 7.1.83 allowing-the-application for- execution of decree, theplaintiff did. not take any steps to carry out such execution, is'fal.se.- He referred to para 6 of-the petition which proves the• falsify-of para 4. He further-.pointed out that the affidavit.(P. 5)dated 20.5.86 had no relevance to the application dated
(P 3). (P.5), was a document filed in respect of anotherapplication and related to the petition (R.9) dated 20.5.86. Healso submitted that para 1 2(B) of the petition where it is averredthat the respondent had failed to comply with the mandatoryprovisions of Section 339(1) of the Civil Procedure Code andaccordingly the said application should have been dismissed inlimine, was a deliberate attempt to mislead the.Court. (P.3) wassome other application made to the District Court by the presentrespondent, which had been abandoned. The correct application
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f!989/ I SnL ft.
on which the Court had made the present order complained ofis (R.9) dated 20.5.86. where the original plaintiff had in factbeen made a party respondent, in compliance with theprovisions of Section 339.
He submitted that the averments in para 12(F) too wereincorrect.
The stay order having been obtained on such material, it wascontended that it should in any event be dissolved.
After the conclusion of oral submissions, the Attorney-at-lawfor the respondent tendered written submissions on 28.5.87.together with certified copies of the caption and Journal EntryNo. 1 dated 20/22.6.73 of the District Court Case marked Xand the Record of Stamp Duty marked 'Y'. In 'X' the value of theaction has been given as Rs. 5000/- plus Rs. 75/-. In 'Y' toothe value of the action is given as Rs. 5075/-.•
On 8.6.87, the Attorney-at-Law for the petitioner tootendered written submissions summarising his position.
I would .now examine the'matters referred to by counsel inthe light of these submissions and the material available to thisCourt.
In regard to the submission that there was no proper proof ofassignment of the decree, one has to consider Deed No. 194attested by P. H. Alankarage, Notary Public on 13.2.86 (P.2)which has been, produced in the proceedings before theDistrict Judge and which he had considered in making hisorder. It was the' contention of learned' counsel for thepetitioner that there had been non-compliance with Section 68of the Evidence Ordinance and (P.2) had not been duly proved.This is an objection which the petitioner should have taken inthe original Court when it was sought to admit the document inevidence. It may be noted that Mrs. de Saram, in her affidavitreferred to above, has stated that the deed of assignment wasneither objected to .nor was the substituted plaintiff called uponto. prove the same
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Fernando v. Hemachandra (Wijetunga. Jr)
387:
In Siyadoris v. Danoris. it has been,held that where a deedhas been admitted in evidence without objection at the trial; noobjection that it’has not been duly proved could be entertainedin appeal. -In so deciding. K.eunman. J. with Howard C.J;agreeing, followed the decision in Andrishamy v. Balahamy. (2)which too was a decision of two judges. I am in respectfulagreement with this view and would hold that the petitioner isnot entitled to take this objection at this stage.'
The second ground on which tfTe petitioner relied.was thatthere had been non-compliance with Section 339 of the CivilProcedure. Code, the petitioner has filed a certified copy'of,thepetition and affidavit dated .1 6.4.86 (P.3), together with a.copyof the order dated 1 9;-2.87 (P.4.). conveying the impression that.the order (P.4), relates, to, ,(P.3); .The original plaintiff had not•been-made a party, respondent, in (P.3), as •.is required., bySection 339. The respondent however has tendered (R.9) dated20.5.86' which is the application that is relevant to this order. Inthat petition, the original'plaintiff M. Kanagalingam .has beennamed as the plaintiff-respondent. Journal EntryNo. 90 dated1 4.7.86 (R..8)'Shows that he had been present in Court on thatdate and had indicated that he had I no' objection to thisapplication. Although learned counsel for the petitioner soughtto cast'doubts as regards the presence of Kanagalingam inCourt, learned counsel, for – the ' respohdent ' refuted thiscontention, through the.statement made'from the Bar by Mrs.Ramam de Saram. Attor'ney.-at-Law on 30.4.87 and the affidavitof the same date submitted,by. her. Mr. Mustapha objected tothe admission of this statement and document on the groundthat it had the effect of contradictingthe record. But Mris. deSaram's statement and affidavit in fact support the record, as"the Journal. Entry of T4-.7.86 states that, the original plaintiffiKanagalihgam was present in Court and had no'objection'tothis application. In, para .7 of her affidavit Mrs. de Saram statesthat "the said Mr. Ml Kanagalingam was present in.Court andconsented to the substitution of. the said Ridley de Silva. I■myself was present in court when . the said Kanagalingamexpressed his>consent to Court," t
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Mrs. de Saram's statement from the Bar further explains howKanagalingam came to be in Court. She states that the Attorneysfor the sobstituted-plaintiff informed Kanagalingam's brotherwho was living-in Mutuwal regarding the next date when thecase was to be called. Counsel for the petitioner objected to thisstatement on the ground that it was hearsay. What Mrs. deSaram states is .that the relevant information was conveyed toKanagalingam's' brother, in consequence of which probablyKanagalingam appeared in Court on the-due date. I see no■ inadmissible hearsay material in this statement.
The position of learned counsel for-the petitioner being thatnotice not having been served on Kanagalingam. it was highlyimprobable that he could have appeared in Court, therespondent has now given a. plausible explanation as to howKanagalingam may have come to be .present in Court.-This, in myview, is the answer to the second 'matter- raised by counsel forthe petitioner. 1
■1t
The third ground urged by'the petitioner is that on 12.12.74when the District Court delivered judgment in this case. it had nojurisdiction as the .case stood transferred to the Magistrate'sCourt by operation of the provisions of the Administration.of.Justice Law. This submission is on the basis that the case being apossessory action and damages having been claimed at Rs. 75/-p.rn.. the monetary jurisdiction of the Court is determined on therelief claimed by the plaintiff and not by the value of the premisesin suit: In the instant case, in para 13 of the plaint it is averredthat the value of that portion of the bu.ilding which is the subject•matter of this action is.Rs. 5000/-. The relief sought in theprayer is:— ■-…
,-ji) – that the'defendant and all others holding.under him be/ '' ejected from,that portion of premises No. 220/5, Galle‘Road, Panaduta described in the-Second Schedule to; j ". the plaint and the • plaintiff be placed in undisturbed_ ./ ' possession of the same '
and (2) that the defendant be ordered to pay a sum of Rsi 75/-p.m. as dannage.s from May. 1 973 until he is so ejected.
389
CA
Fernando v. Hemachandra (Wijetunga.
The document 'X' tendered by the respondent shows that theaction has been,valued at Rs. 5000/- plus Rs. 75/-. So also, inthe document T, which is the Record of Stamp Duty, the actionis Valued at Rs. 5075/-: Thus, in valuing the action, prayer (1faswell as-prayer (2) have been taken into account. To confine one'sself only to the damages claimed by the plaintiff in prayer (2), indetermining the value of the action, -would be .to ignorealtogether the relief claimed in prayer (1). which is thefundamental relief. Surely, the ejectment of the defendant fromthe premises in suit and being placed in undisturbed possessionof the same would have a monetary value to the plaintiff-far inexcess of the damages that he would incidentally recover from’the defendant. In my view, when-the plaintiff values the: subjectmatter of the action at'Rs. 5000/-. it is this particular interest in. claim that has found expression.
The value of the-action is very relevant for the purposes ofSection 214 of the Civil Procedure Code which deals with?taxation of costs, as is evidenced by the Second Schedule to the -.Code. So also, is it important for the purposes of Section 2 of theStamps Ordinance (vide Part II of Schedule A), as stamp duty ischargeable on. legal proceedings according to the-class ofaction; as determined-by monetary value. •
In any event, no.objection had been taken by the defendant atany stage of the proceedings in the trial Court- as regards thevalue of the action. It is only in, the counter-affidavit dated
filed in this-Court that the petitioner-for the.first time ..averred a'want of jurisdiction. It is relevant to note that thisaction commenced inthe District Court on 20th June, 1 973 andjudgment was entered oh 12th December, 1.974. Various other-steps had been taken in the- matter between then- and now, ■spanning a period of about 13 years. But the question of.jurisdiction had never been raised. This is not,to say that, thepetitioner cannot raise, this question at this stage, if there was'.a.patentlor total want of jurisdiction. But, the action'having-beenvalued at Rs. 5.07 5./-,.prima facie the Court had the necessary'jurisdiction: The case-continued in the'District Court even afterthe Administration of-Justice Law. On the basis of the value ofthe action as appearing in'the caption to Journal Entry No. 1 and
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in the Record of Stamp Duty, there was no necessity to transferthe action to any other court.
In practical terms, the transfer, of the case was anadministrative act to be performed by the relevant officer of theCourt. There was no material before him to indicate that the caseshould be transferred to the Magistrate’s Court. On the contrary,for all purposes it appeared to be a case which should continuein' the District Court. So. if the petitioner was of the view that thecase should properly be transferred to the Magistrate's Courtunder the'Administration of Justice Law. she.should have madean appropriate application to the District Court for such transfer.This she has failed to do. If she had made such an application, itwould have been open tp the plaintiff to raise any objections tosuch transfer and there would have been a judicial determinationof the question of monetary jurisdiction. • Section 43(1) of theAdministration of Justice Law itself contemplates such objectionbeing taken by a party concerned at the earliest opportunity.
As early as 1 924, it has been held in Andris v. Siriya et at.that "it is a fundamental rule governing the question- ofjurisdiction'that the valuation of the subject matter as given inthe plaint prima;facie determines the jurisdiction of the Courtand the value thus placed having given the Court jurisdiction, thejurisdiction itself continues whatever the result of the suit, unlessa different , principle comes into operation to prevent such aresult or to make the proceedings.from the first abortive."
In Jalaldeen v. Rajaratnam, W this Court has held that anobjection to jurisdiction must be taken at the earliest opportunity.Further, -issues relating to the fundamental jurisdiction of the.Court cannot be raised in an oblique or-veiled manner and mustbe expressly set out. The action was within the general and localjurisdiction of the District Court. Hence its decision will standuntil the wronged party has matters set right by taking the courseprescribed by law.
The question' of patent or total want of jurisdiction as opposedto latent or contingent want of jurisdiction has been, succinctlydealt with by Ten-nakoon. C.J. in' Perera v, The Commissioner of
CAFernando v. Hemachandra (Wijetungai J.f39.1
National Housing, (5) where he stated as follows:— "Lack ofcompetence in a Court is a circumstance that results in ajudgment or order that is void. A Court may. lack jurisdictionover the cause or hnatter-.or over the parties, it may also.Jack.competence because of failure to comp-ly-with such-.proceduralrequirements as are necessary for-the exercise of power by theCourt. Both are jurisdictional-defects: the. first mentioned ofthese is commonly known in-law as a 'patent' or.'total' want of ’jurisdiction or a defectus jurisdictionis and the second a 'latent'or 'contingent' want- of jurisdiction or defectus trialionis. Bothclasses of jurisdictional defect-result in judgments or orderswhich are void. But an important difference'must.also.be noted:.In that class of case where the want of jurisdiction is patent,' nowaiver of objection or acquiescence can cure the- want ofjurisdiction'. ", . the proceedings i.n-cases within this categoryare non coram judice and the want of-.jurisdictipn is incurable.In the other class of case, where the want of jurisdiction is -contingent only, the judgment or order of the Court will- be void .only, against the party on; whom it operates but acquiescence,waiver or inaction on the part of such' person may estop himfrom making' or attempting -to establish by' evidence, -anyaverment'to the effect that the Court was lacking in contingent 'jurisdiction."
In this judgment His 'Lord-ship quotes a passage from'.Spencer Bower on Estoppel' by'representation. 1966, (2nd-Edition) at page-3.C)8 which is as follows:— "So too, when ap.'arty litigant, being in a position .to object-that the matter indifference is outside the local, pecuniary or other, limits ofjurisdiction of the tribunal to.which his adversary has resorted-.'•deliberately elects to waive'the objection and to proceed to the ■end' as if no such objection existed, in "the expectation ofobtaining'a'decision-in his favour, he e'annot be allowed, whenthis .expectation is not realized, to set up that-the' tribunal hadno jurisdiction over the cause or parties, except'in that class ofcase-, already noticed, where the allowance-, of the estoppelwould result in.a totally newjurisdicti'on being created." . ■"
" .In thb instant case, this precisely is the conduct of thepetitioner. .*
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The petitioner having failed to establish that there was apatent or total want of jurisdiction, cannot, in my view, nowattack .the jurisdiction of the trial Court, as she has byacquiescence, waiver or inaction estopped herself from takingan objection to the effect that the Court was lacking incontingent jurisdiction.
I shall now refer to the principles applicable to execution ofwrit pending appeal. It has been held in Sokkal Ram Sah v.Nadar et at. t°) that stay of execution pending appeal is grantedonly when the proceedings would cause irreparable injury tothe appellant and where the damages suffered by the appellantby execution would be substantial.
In Charlotte Perera v.- S. Thambiah and another.Samarakoon C.J.. with three other judges agreeing, has heldthat the judgment-debtor should satisfy the Court thatsubstantial loss may result unless an order for stay of writ is
made.
Dealing with the question of substantial loss vis a vis ajudgment-debtor who is ejected from the premises in suitpending appeal, where the appellate Court reverses the decreeentered in favour of the judgment-creditor. His Lordshipobserves that "the law is not powerless to act in such cases. Ifthe'Supreme Court reverses the decree entered in favour of thejudgment-creditor, then the judgment-debtor is entitled in lawto a restoration of the status quo. There is no longer a validdecree under which the judgme.nt-creditor or anyone claimingunder him could continue to occupy the premises. Where theprocess of Court has been utilised to deprive a judgment-debtor of his occupation of premises pending appeal andsubsequently the decree upon which that process was issued isinvalidated by the order of the Supreme Court, justice requiresthat the judgment-debtor .be restored to occupation by theremoval of all those in occupation, irrespective of the means bywhich, or the rights upon which they entered into occupation. Itis the- duty of the Courts of Law to provide such relief to thedisplaced judgment-debtor. Section 777 of the Civil ProcedureCode is ample provision for.such procedure."
• C'AFernando v. Hemachandra (Wijetunga. J.)
393
In the instant case, there is a'specific'findi'ngby the trial judgethat the defendant was not' a tenant and was in forcibleoccupation of the premises in suit from 22.1 2.73.
It is evident from the order dated 1 9.2.87 that the defendantdid not endeavour to prove substantial loss at the inquiry held‘inthe District Court. Except for the bare averment in para -14 of thepetition filed in this Court that "the petitioner is exposed to thegrave risk of being driven tov the‘roads with her dependentchildren." .No material has been placed by the'petitioner beforethis Court too on the question of substantial loss. Both in thisCourt as well as in the Court'below, she was content to rely onthe various legal issues raised in this connection. In this context,it is also relevant to note that the' District. Court had. alreadyrefused her. earlier application for stay of writ of execution on29th August. 1983.^
This brings me to the immediate, matter before'us* viz… thequestion of extension of the stay order. As has .been discussedearlier in the course.-of this order, there, are several incorrectaverments in the petition filed in this Court. The documents (p.3)and (p.5) filed therewith_are also misleading. I do not .wish, tomake any observations'at this stage as to whether there had beena deliberate'suppression, of facts. Suffice, it to say that thematerial on which, the stay order was obtained has now beendemonstrated to be quite unsatisfactory.
It has been urged on.behalf of the petitioner that this issueshould be approached in the mariner set out in Billimoria v.Minister of Lands. (8) where it-has been held by the SupremeCourt that a stay order is an interim.forder and 'riot orie whichfinally decides the case.' This' must be born in mind whenapplying the principles..ofthe per incuriam rule. fowould riot becorrect to judge such orders-in the same strict manner-as a finalorder:■'^
Samarakoon C. J.'s observations ip that case were in thecontext of ,a stay order yyhich had been, granted, by one, divisionof,this Court, which .had. subsequently been: quashed by.anotherBench on the ground that the order had been made per
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. incuriam. I do not think that His Lordship Intended thereby toconvey that the granting of stay orders should be treated lightlyor that the parties need not strictly adhere to the principlesgoverning applications made to Court.
I have already adverted to the fact that the petitioner is notwithout a remedy in the event of a reversal of the decree enteredin this case. She would then be entitled in law to a restoration ofthe status quo ante, if she has already been ejected.
Counsel on both sides have cited several other authoritiesduring the argument, but I do not find it necessary to refer toeach of them for the purposes of this order.
In.all the circumstances of this case. I see no justification forthe continuance of the stay order. Accordingly. I would vacateand dissolve the said stay order:
BANDARANAYAKE. J. — I agree.
, Stay Order vacated