050-NLR-NLR-V-77-K.-S.-WIJEPALA-Appellant-and-SAMYDORAI-NADAR-Respondent.pdf
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Wijepala v. Samydorai Nadar
1974 Present: Walgampaya, J., Vythialingam, J., andWalpita, J.
K.S. WIJEPALA, Appellant, and SAMYDORAI NADAR,
Respondent
S. C. 2/70 (Inty.)—D. C. Panadura, 10325
Conciliation Boards Act, as amended by Act No. 12 of 1963—Section14 (1)—Jurisdiction—Action instituted in District Court in thefirst instance—Requirement of certificate of Conciliation Board-Waiver thereof by consent of parties—Permissibility.
VYTHIA I.INGAM, J.— Wijepala v. Samydorai Nadar
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Plaintiff-appellant sued the defendant-respondent, his tenant*for ejectment from the rented premises. The defendant admittedjurisdiction and consented to judgment, one of the terms of whichwas that writ of ejectment should not issue till 31st December, 1967.At the stage of execution of the writ, nearly three years after theconsent decree was entered, objection was raised for the first timeby the defendant that the Court had no jurisdiction to hear anddetermine the action as a certificate from the Chairman of theappropriate Conciliation Board had not been filed with the plaintas required by section 14 (1) of the Conciliation Boards Act. Thetrial Court made order that the defendant was entitled to leadevidence even at that late stage in support of his objection.
Held, that the defendant had waived the objection to the jurisdic-tion of the Court, and he was entitled to do so. He could not there-after raise the objection, once he had waived it. “Where the wantof jurisdiction is not apparent on the face of the record but dependson the proof of facts, it is for the party who asserts that the Courthas no jurisdiction to raise the matter and prove the necessary facts.A Court has to proceed upon the facts placed before it and itsjurisdiction must, therefore, depend upon them and not upon thefacts that may actually exist. ”
A.PPEAL from a judgment of the District Court, Panadura.
A. Mahendrarajah, with S. Mahenthiran, for the pJaintiff-appellant.
Defendant-respondent absent and unrepresented.
Cur. adv. vult.
March 28, 1974, Vythialingam, J.—
The plaintiff-appellant in this case sued the defendant-respon-dent his tenant for ejectment, arrears of rent and damages onthe ground that he was in arrears of rent. The defendant-respondent admitted jurisdiction and although denying in para-graph 4 of his answer that he was in arrears of rent as from 1stAugust, 1962, nevertheless set out in paragraph 5 that he hadpaid a portion of the arrears of rent after receiving the noticeto quit and stated that he was prepared to pay the balance duewithin reasonable time.
On 15.3.1967 when the case came up for trial the defendantconsented to judgment in ejectment and damages in a sum ofRs. 537.24 and continuing damages at the rate of Rs. 24.42 permonth from 1st March, 1967. It was also agreed that writ wasnot to issue till 31st December, 1967, and that there should beno costs. On the application of the plaintiff writ was issued on11/12.3.1968 but was not executed. Thereafter on an applicationfor the reissue of writ, notice was issued on the defendant andhe filed objection stating that the plaintiff had accepted rent after
and that a settlement had been effected and a newtenancy created.
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VYTHI ALIXG AM, J.-—Wijepala v. Samydorai Nadar
He also moved for an order under Section 377 (b) on the plain-tiff to show cause why the decree in the case should not becertified as having been adjusted under Section 349 of the CivilProcedure Code. At the inquiry the only matter in issue waswhether the plaintiff was entitled to a reissue of the writ and itwas agreed that it would cover the matters raised by the defen-dant in his objections. The plaintiff’s evidence was recorded“ de bene esse ” as she was leaving the island and the inquirywas proceeded with on 5.10.69 when plaintiff’s rent collector gaveevidence, and plaintiff’s evidence having been read under Section178 (3), her case was closed.
Thereafter defendant gave evidence and his cross examinationwas put off for 13.11.1969. On that date Counsel for the defendantfor the first time moved to raise the following further issues : —
Does the dispute referred to in the plaint fall within thejurisdiction of the Panadura Conciliation Board area ?
Has a certificate from the Chairman of the Panel ofConciliation Board been filed with the plaint ?
If issue 3 is answered in the negative, has this Courtjurisdiction to hear and determine this action in view ofSection 14 (1) of the Conciliation Boards Act as amendedby Act No. 12 of 1963 and in view of Section 18 of theConciliation Boards Act ?
Counsel for the plaintiff objected and after hearing thearguments the learned Additional District Judge made order on11.1.1970 holding that the defendant was entitled to raise theissues even at that late stage and to lead evidence in supportof these issues. From 22.7.1966 when the action was institutedright down to 13.11.1969 the plea that the Court had no juris-diction to hear and determine the action as a certificate fromthe Chairman of the appropriate Conciliation Board had not beenfiled with the plaint was at no time taken up. On the other handthe defendant had expressly admitted jurisdiction by para 2 ofhis answer, consented to judgment and had sought certificationof the adjustment arrived at by him with the plaintiff.
Even on 13.11.1969 no material was placed before Court toshow that the area in which the dispute arose is in a ConciliationBoard area and that a panel of conciliators had been constitutedfor that Conciliation Board area. These are matters on which hesought to lead evidence nearly three years after the consentdecree was entered and two years after the expiry of the dateon which he should have quitted the premises in terms of theconsent decree.
VYTHIALINGAM, J.— Wijepala v. Samydorai Nadar
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The nature of the dispute in a tenancy action such as the onewhich arose in this case is one which falls within the provisionsof the Conciliation Boards Act. In the case of A. Samarasingheet al v. W. Samarasinghe1 70 N. L. R. 276, what was prayed forin the plaint was that the plaintiff was at all times material amonthly tenant of the 1st defendant and for the ejectment of thedefendants and a restoration of the plaintiff to quiet possession.T. S. Fernando, J. said at page 279 “I have already indicatedabove that the main dispute was over the allegation of the exis-tence of a tenancy. Indeed the plaint itself and the pleadingstaken together establish that there was a dispute falling withinone or more or all of the clauses (a), (b) and (c) described inSection 6.”
In the case Mrs. N. E. Brohier v. H. M. S. A. Saheed* 71N. L. R. 151, the plaintiff landlord sued the defendant histenant for ejectment from certain premises. Sirimane, J. said atpage 153, “ I am also inclined to agree with the submissions ofMr. Gunasekera for the defendant that the action is one torecover immovable property and the dispute would also fallunder Section 6 (a). In the case of Samarasinghe v. SamaraAsinghe (supra) this Court was of the view that in a tenancyaction the dispute was one falling within one or more or all ofthe classes (a), (b) and (c) set out above.”
Where the provisions of the Conciliation Boards Act applythe Court has no jurisdiction to entertain an action without therequisite certificate from the Chairman of the appropriateConciliation Board. In the case of Nonahamy v. K. A. HalgratSilva® 73 N. L. R. 217, a Divisional Court held, Alles. J. dissen-tiente, that the District Court had no jurisdiction to entertain aplaint without a certificate from the Chairman and consequentlyhad no jurisdiction to issue an interim injunction because therewas before Court, no plaint in an action duly instituted. It wasnot disputed in that case that the land to which the actionrelated was situated in a Conciliation Board area and that thedispute in that action was one in respect of immovable propertyin that area.
The question which arises here is whether the defendant haswaived the objection to the jurisdiction of the Court and whetherhe can do so. In the case of Fernando v. Fernando * 74 N. L. R.57, Samerawickrame, J. with Panditha Gunawardena, J.agreeing, pointed out on the authorities cited by him that wherethe want of jurisdiction is patent, the objection to jurisdiction
1 70 N.L.R. 276.* 71 N.L.R. 151.
s 73 N.L.R. 217.4 74 N.L.R. 57.
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VYTTTTALINGAM, J.— Wijepala v. Samydorai Nadar
can be taken up at any time and in such a case it is the duty ofthe Court itself, ex mero motu, to raise the point even if theparties fail to do so and notwithstanding any acquiescence ofparties.
But where the want of jurisdiction is not apparent on. the faceof the record but depends on the proof of facts, it is for xhe partywho asserts that the Court has no jurisdiction to raise the matterand prove the necessary facts. A Court has to proceed upon thefacts placed before it and its jurisdiction must, therefore, dependupon them and not upon the facts that may actually exist. AsG. P. A. Silva, S.P.J. pointed out in S. K. Gunawardena v.Mrs. M. N. Jayawardena1 74 N. L. R. 248, at page 251 “In theabsence of such facts being brought to the notice of the Court,there is no duty on the Court—though Counsel for the petitionerseemed to contend there was—to embark on a voyage of dis-covery in every action instituted before it whether the disputearose in a Conciliation Board area, in which a panel of Concilia-tors had been constituted. ”
In both these cases it was held that the defendants were pre-cluded by delay and acquiescence from raising the objection tojurisdiction at a late stage and that it had been waived.Gunawardena’s case (supra) was also a case for rent and eject-ment on the ground of arrears of rent where the defendantconsented to judgment and was given time to quit. He took upthe objection to jurisdiction a few weeks prior to the time toquit expired. In regard to the conduct of the defendant in thatcase, G. P. A. Silva, S.P.J. said “ He thereby obtained anadvantage from the plaintiff and the court to remain almosttwo years in the premises even though the plaintiff was entitledto an immediate order for ejectment. The defendant enjoyedthe full benefit of this period and only brought up this ques-tion again during the last month of his stay in the premises.’*
In the case of Adiris Fernando v. Rosalin et al2 81 C. L. W. 13,it was held that in a partition action where interlocutorydecree had been entered it was too late to raise the objectionto jurisdiction that the certificate from the Chairman of theConciliation Board had not been obtained.
In P. M. Kurera v. R. C. Fernando 3 75 N. L. R. 179, it was heldfollowing these decisions that where a consent decree has beenentered in an action the defendant is not entitled to have it setaside subsequently on the ground that the action and the pro-ceedings were null and void by reason of the absence of a certifi-cate required by Section 14 (1) (a) of the Conciliation BoardsAct.
2 81 C.L.W. 13; 74 N. L. M. S63.* 75 N. L. JR. 179.
1 74 N. L. It. 248 at 251.
VYTHIAXINGAM, J.—Wijepala v. Samydorai Nadar
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Samerawickrame, J. with H. N. G. Fernando, C.J. agreeing,pointed out that “ As G. P. A. Silva, S.P.J. has pointed out inGunawardena v. Jayawardena (supra) this view accepts thedecision of the Divisional Bench in Nonahamy v. Silva (supra),but is based on a different principle which was not applicableon the facts to the case decided by the Divisional Bench. ” He alsofurther pointed out “ There is one further matter—thepurpose of having a dispute referred to a Conciliation Board isto affect a settlement. The parties have in fact effected asettlement in Court. In the circumstances the objection that thedispute had not first been referred to the Conciliation Boardfor settlement is in any view of the matter, technical ” page181. Such is the case here.
W. S. Jayawickreme v. E. Nagasinghe,l 74 N. L. R. 52.3,was also a case for ejectment and damages and the case wassettled of consent and defendant was given time to quit. Shortlybefore the expiry of the period he moved for further time anda few days after the expiry of the period he filed papersobjecting to the jurisdiction of the Court on the ground that acertificate from the Conciliation Board had not been obtained.The application to set aside the consent decree was refused bythe trial Judge and in revision, De Kretser, J. in dismissing theapplication said, “ What the defendant is trying to do is to getan advantage not only after a determination of the matter in thelower Court but also after he has enjoyed the full fruits of thatdetermination. Such conduct must not be permitted.” Page 528.The position is identical in the instant case.
At the time the learned Additional District Judge made hisorder on 11.10.1970 these judgments referred to by me in thisjudgment had no been delivered. Had the learned AdditionalDistrict Judge had the advantage of these judgments, I have nodoubt his decision would have been otherwise.
It is a matter of regret that the respondent was not repre-sented or present at the hearing and we did not have thebenefit of any submissions on his behalf. But the authoritiesare quite clear to admit of any other view.
I allow the application and set aside the order of the Addi-tional District Judge dated 11.1.1970 and disallow the issuesNos. 2 to 4 raised on 13.11.1969. The inquiry will now proceedonly in regard to issue No. 1 and the matters raised in thedefendant’s application as set out in the proceedings of 5.10.1969.It is unfortunate that the defendant who had agreed to vacate
1 74 N. L. R. 523.
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SAMERAWICKRAME, J.—Salahudeen v. Attorney-General
the premises on 31.12.1967 should still continue to be there inFebruary, 1974, as a result of these dilatory tactics.
The plaintiff will be entitled to costs both here and the Courtbelow.
Walgampaya, J.—;T agree.
Walpita, J.—I agree.
Order set aside.