076-NLR-NLR-V-46-MISS-THOMAS-v.-BAWA.pdf
ROSE J.—Miss Thomas v. Bawa.
216
1949Present: Rose J.
MISS THOMAS v. BAWA.
In Revision C. R. Kandy, 34,721.
Jurisdiction—Actionfor ejectment—Consent decree—No proof of matter»
within the provisos to section 8 of Rent Restriction Ordinance—Waiver..Where, in an action for ejectment, a Court has jurisdiction over thesubject-matter but there has been non-compliance with the procedureprescribed as essential for the exercise of jurisdiction, the defect can. 'bewaived by consent of parties.
Cur. adv. vult.
fjl HIS was an application for revision.
Ivor Misso for defendant, petitioner.
E. B. Wikremanayake for plaintiff, respondent.
February 14, 1945. Rose J.—
In this matter it appears that the respondent instituted proceedingsfor ejectment against the petitioner from certain premises. The petitionerdid not appear and decree was entered in his absence, but subsequently,
BOSE J.—Mitt Thomat i. fiaua.
216
as a result presumably of negotiations between the parties, both partiesrepresented by Counsel appeared before the Court on July 27, 1944, andentered into what in effect was a consent judgment and the note of theJudge reads as follows:—" Mr. Gunawardene with Mr. Lee for plaintiff;Mr. Van Reyk for defendant, settled, of consent”.—I suppose thatmeans by consent—“ decree to stand. Writ of ejectment not to issuetill December 1, 1944 The decree of course means the decree enteredinto on an earlier date.
The petitioner now alleged that notwithstanding her consent to thisjudgment the Court in fact had no jurisdiction to entertain the matterat all, having regard to section 8 of the Rent Restriction Ordinance,no consent having been obtained from the Assessment Board and nospecial plea having been made by the respondent to bring the matterwithin one of the four provisos to the section, and the petitioner reliesupon the proposition of law which is, of course unimpeachable, that wherea Court has no jurisdiction to entertain a matter then no acquiescence bythe parties can confer jurisdiction upon that Court. It seems to me,however, that this particular matter is covered by an Indian case whichhas been cited to me by the respondent that of Ourdeo Singh v. ChandrikahSingh 1, in which the judgment refers to a Privy Council case the reportof which is unfortunately not available but which I presume to be correctlycited—the case of Pisani v. Attorney-General of Gibraltar 2—where theirLordships of the Privy Council held that where there is jurisdiction overthe subject matter, but non-compliance with the procedure prescribedas essential for the exercise of jurisdiction the defect can be-waived.
In this case it seems to me to be clear, as the respondent has pointedout, that the Court has jurisdiction over the subject matter (which infact was an action for ejectment) and had the case been properly pleadedso as to bring it within one of the four provisos there could have beenno question but that the Court could have proceeded to hear and adjudicateupon the matter. It is perhaps even doubtful whether there is not asufficient plea to bring the matter within the first proviso (a) but evenassuming for the sake of the respondent that there is no specific plea tobring it within (a) and no plea to bring it within (c) I am of opinion thatthat is not a matter which takes it outside the jurisdiction of the trialcourt, because had there been a contest and had the matter been raisedit would have been open to the Court to grant leave to amend the plea.
For these reasons it seems to me that the petition fails and must bedismissed with costs.
Application refused.
1 36 Cal. p. 193.
» L.R. 5 P. C. p. 515.