030-NLR-NLR-V-75-P.-M.-KURERA-Petitioner-and-R.-C.-FERNANDO-Respondent.pdf
Kttrera v. Fernando
179
1971 Present: H. N. 6. Fernando, C.J., and Samerawlckrame, J.
P.M. KURERA, Petitioner, and R. C. FERNANDO, RespondentS.C. 644/68—Application in Revision in D. O. Kurunegala, 2885JMConciliation Boards Act—Section U (1) (a)—Absence of a certificate required by it—Whether it can render null and void a consent decree already entered.
Where a consent decree has been entered in an action, the defendant is notentitled to have it eet aside subsequently on the ground that the actior and theproceedings were null and void by mason of the absence of a oertificate requiredby aeetion 14 (1) (a) of the Conciliation Boards Act.
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SAMERAWICKRAME, J.—Kurera v. Fernando
Application to revise an order of the District Court, Kurunegala.
O.Ranganalhan, Q.C., with Paul Perera, for the defendant-petitioner.
Lakshman Kadirgamar, for the plaintiff-respondent.
December 30, 1971. Samehawickrame, J.—
Cur. adv. vult.
The defendant-petitioner has made this application to have a consentdecree directing him to pay a sum of Rs. 7,000 set aside on the groundthat the action and the proceedings were null and void by reason ofSection 14 (1) (a) of the Conciliation Boards Act. The plaintiff-respondenthied this action claiming a sum of Rs. 7,934-42. The defendant-petitionerfiled answer contesting the claim but did not plead that there had notbeen compliance with the provisions of the Conciliation Boards Act. ■On 2nd November, 1968, a decree was entered by consent of parties. Thedefendant -petitioner thereafter made the present application.
In Nonakamy v. Halgrat Silva1—73 N. L. R. 217—a Divisional Benchheld that non-compliance with the requirement to file a certificate asprovided for in s. 14 (1) (a) of the Conciliation Boards Act deprived theCourt of jurisdiction to entertain the action and to make an adjudication.In that action the plaintiff had filed his plaint and applied for an interiminjunction. On service of notice of the plaintiff’s application thedefendant appeared and pleaded the failure to file the requisite certificate.It will be seen that the objection that the Court lacked jurisdiction wastaken and the want of jurisdiction was apparent at a very early stage.Where want of jurisdiction appears from the pleadings or on the face ofthe proceedings there is a patent want of jurisdiction and it is the duty ofthe Court to stay its hand. In such cases the objection to jurisdictionmay be taken at any stage. The position appears to be different wherethe want of jurisdiction depends on the existence of facts which are notbrought to the notice of Court. If a defendant fails to plead or provesuch facts upon which the want of jurisdiction depends and permits theCourt to proceed to hear the action then he may be precluded by hisconduct from seeking to rely on those facts at a later stage. Section 14(1) (a) applies where there is a dispute in respect of a matter that may bea cause of action in a civil court and that dispute has arisen in aConciliation Board area and at the time the dispute arose a Panel ofConciliators had been appointed. The defendant-petitioner had at nostage of the proceedings placed before the trial Court the circumstancesthat made s. 14 (1) (a) applicable to the case. In the petition filed in thisCourt he has set out facts in sub-paragraphs A, B, C and D of paragraph6 as follows :—
“ A. The plaintiff-respondent’s place of Business and accordingly theplace where the alleged contract Bought to be enforced was enteredinto and the plaintiff-respondent’s alleged cause of action aroseat Wilattawa which lies within the limits of Dummalasuriya
» (1970) 73 N. L. R. 217.
SAMERAW1CKRAME, J.—Kurera v. Fernando
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Village Area in accordance with the certificate issued by theChairman, Village Committee, Dummalasuriya, dated 18.11.1968,which is annexed hereto marked P2 with its translation markedP2A.
J3. The said Dummalasuriya Village Area is a Conciliation BoardArea since 12.3.1958, and a Panel of Conciliators was constitutedfor the aforesaid Conciliation Board Area by orders published inGazette No. 13,394 of 16.11.1962 and No. 14,694 of 6.5.1966, andat all times material the said Conciliation Board was functioningin the said Village area.
■C. By reason of the aforesaid premises it is submitted that theplaintiff-respondent failed to comply with the provisions ofSection 14 of the Conciliation Board Act when institutingthe plaint and it is further submitted that the District Judge,Kurunegala, had no jurisdiction to receive the said plaint andfurther to hear and make orders in the said case No. 2885/M.
D. It is respectfully submitted that by an error of Law the LearnedCounsel for the defendant-petitioner agreed to a settlement assuggested by the Learned District Judge of Kurunegala andfurther that the defendant-petitioner by similar error did signthe record, and it is further submitted that all orders made in thiscase are of no force or avail in Law. ”
This Court has taken the view that a defendant who fails to take anobjection to jurisdiction on the ground of the absence of a certificaterequired by s. 14 (1) (a) till a late stage of the proceedings or till afterdecree is entered against him will not be permitted to raise the objectionthereafter, and has waived it—vide Robison Fernando v. HenriettaFernandol, 74-N-L. R.57, S.K. Gunawardena v. Mrs.MJf. Jayawardena a,74 N. L. R. 248 and Adiris Fernando v. Rosalin3 81 C. L. W. 13.
As G. P. A. Silva, S.P.J., has pointed out in Gunawardena v.Jayawardena (supra) this view accepts the decision of the DivisionalBench in Nonohamy v. Silva (supra) but is based on a different principlewhich was not applicable on the facts to the case decided by the DivisionalBench.
On the authority of the decisions to which I have referred, I hold thatthe defendant-petitioner had waived the objection to jurisdiction andwas not entitled to raise it in this application. There is one furthermatter. The purpose of having a dispute referred to a ConciliationBoard is to effect a settlement. The parties have in fact effected asettlement in Court. In the circumstances the objection that the disputehad not first been referred to the Conciliation Board for settlement is,in any view of the matter, technical. The application fails and isdismissed with costs.
H. N. G. Febnando, C.J.—I agree.
Application dismissed.
(1971) 74 N. L. R. 57.» (1971) 74 *7. L. R. 248.
* (1971) 81 O. L. W. 13; 74 N. L. R. 563.
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