020-SLLR-SLLR-1990-2-RATNAYAKE-V-PADMINI-DE-SILVA-AND-ANOTHER.pdf
RATNAYAKE
v.PADMINI DE SILVA AND ANOTHER
COURT OF APPEAL.
WIJETUNGA, J. AND WIJEYARATNE. J..
C. A. No. 612/89 – M. C. KURUNEGALA No. 19272.
FEBRUARY 7 AND 8, 1990.
Civil Procedure – Primary Courts Procedure Act—Failure to affix notice under S. 66(4) onthe disputed land. – Revision – Article 138 (1) of the Constitution.
Failure to cause the notice to be affixed on the land as required by S. 66 (4) of the PrimaryCourts Procedure Act does not affect the jurisdiction of the Court but is only an irregularityin procedure. Under S. 66(2) where an information is filed under subsection (1), the Courtis vested with jurisdiction. The other provisions which follow deal with the manner ofexercising such jurisdiction. Non-compliance with every rule of procedure does notdestroy the jurisdiction of the court. While in some cases it may be only an irregularity, inother cases it may amount to an illegality and thus vitiate the proceedings. The object ofaffixing a notice in some conspicuous place on the land which is the subject matter of thedispute is to bring the proceedings to the notice of all persons interested in such disputeand thereby to enable them to participate in such proceedings. In the instant case, it is notsuggested that there are any third parties interested in the dispute who would haveappeared in court if the notice had been so affixed. No prejudice was caused and theobjection itself was taken belatedly.
Wijetunga. J.- ' It is well to bear in that the duty is cast by S. 66 (4) on the court tocause the notice to be affixed on the land *.
Cases referred to:
Craig V. Kanseen [1943] 1 all ER 108
In Re Pritchard. [1963] 1 All ER 873
Emperor V. Sis Ram and others AIR 193 Lahore 895
Emperor V. Hira Lai AIR 1933 Allahabad 96
Thambipillai V. Thambimuttu S.C. Application No. 927/74M. C. Kalmunai No. 63310, S.C. minutes of 25.06.75
Ivan de Silva V. Shelton de Silva S.C. Application No. 148/76M. C. Panadura No. 45437 S.C. minutes of 10.02.1977
Debi Prasad V. Sheodat Rai (1908) 301.L.R. 41
Sukh Lai Sheikh V. Tara Chand Ta (1905) 33 Calcutta 68 (F.B.)
Ramalingam V. Tangarajah [1982] 2 Sri LR 693
APPLICATION in revision of the order of the Primary Court Judge of Kurunegala.
Dr. H. W. Jayawardena, Q.C. with J. Salwatura for respondent-petitioner.
Faiz Mustapha, P.C. with Mahanama de Silva. H. Withanachchi and J. Wickramarachchifor petitioner-respondents.
Cur. adv. vult.
May 4. 1990WIJETUNGA, J.
Proceedings in this case had commenced in the Primary Court ofKurunegala under case No. 34372, upon an information filed by thepetitioners-respondents (hereinafter referred to as the respondents)naming the respondent-petitioner (hereinafter referred to as thepetitioner) and two others as respondents, being the other parties to thedispute.
In the affidavit of the respondents dated 14.10.1986, it is statedinter alia that the 1 st respondent was the tenant of the boutique-room,the subject matter of this dispute, since 1963 and was in uninterruptedpossession thereof until 7.10.1986. The rents had been paid in thename of the 1 st respondent's husband from 1963 to 1966, in the nameof the 1 st respondent from 1966 to 1980 and in the name of the 1 strespondent's daughter from 1980 to 1986. A business styled" Champika Photo ' had been carried on in these premises until a fewmonths prior to this incident. Thereafter, the premises were used as astore and also as the sleeping quarters of the 2nd respondent and hisservants. On 7.10.1986 when the 2nd respondent went to the saidpremises for the night as usual, the petitioner and the other two personsnamed as respondents in the information filed in the Primary Court,together with a large crowd of unidentified persons, had thereatenedand chased away the 2nd respondent. They had forced open the doorby breaking the padlock, entered the premises and locked the same with
a new padlock. The respondents had produced copies of the complaintsmade, by the 1 st respondent to the Mawathagama Police as P2, that ofthe 2nd respondent as P3 and a statement of the witness SujithWeerawardena as P4, together with their petition and affidavit. Theyhad alleged that as a result of the petitioner and the others forciblyentering the said premises, a breach of the peace was threatened. Theyhad also furnished a list of items belonging to them which were in thesaid premises as P5. They had further alleged that the MawathagamaPolice had not taken action on their complaints and had sought inter aliaan interim order removing the petitioner and the other two persons fromthe said premises, for an inventory of the articles lying in the saidpremises to be taken through a Receiver appointed by the Court and forthe premises to be sealed pending the final determination of thisapplication. Accordingly, on 14.10.1986, on the exparte application ofthe present respondents, the Primary Court Judge who had been of theopinion that on the material disclosed in the affidavits and the otherdocuments, a breach of the peace was threatened, had made an interimorder appointing a Receiver and directing that a list of articles lying in thepremises be taken, that all persons in the said premises be removed andthe building in question be sealed. He had further directed that noticesbe issued on the present petitioner and the other two persons aforesaid(who were named respondents to that application). On 15.10.1986, ithad been brought to the notice of the Court that the order could not becarried out as the premises were padlocked and the Court hadthereupon made order that the Fiscal break open the premises. Thatorder had been carried out under the directions of the Fiscal and aninventory of articles obtained and the premises sealed.
Thereafter, the petitioner had filed a Revision application in this Courtbearing No. 1234/86 and had obtained an order staying furtherproceedings in the said case. The petitioner had again invoked thejurisdiction of this Court in Application bearing No. 1439/86 praying fora transfer of the said case to another Primary Court and this Court had,on 3.12.1986, made order transferring the said case' to theMagistrate's Court of Kurunegala.
On the case being so transferred to the Magistrate's Court ofKurunegala, it had been assigned the No. 19272 and the parties hadappeared in Court on notice on 3.9.1987. On that day the matter hadbeen fixed for inquiry on 12.11.1987. On 21.9.1987, the presentpetitioner had filed his affidavit which, though objected to by the
respondents on the ground of default, had later been admitted byagreement of the parties. By that affidavit, the petitioner had stated interalia that the premises in question had been purchased by the Sri LankaSamodaya Foundation, of which he was the General Manager of theMawathagama Branch, upon deed No. 876 dated 17.10.1986attested by S. W. P. M. G. B. Senanayake, Notary Public. He had furtherstated that he had taken possession of the said building on 7.10.1986from one Weerasinghe who had obtained such possesion from oneJayawansa. Thus he had claimed that he had obtained possession 10days prior to the date of purchase viz., on the date on which the presentdispute arose.
Although the inquiry had originally been fixed for 12.11.1987, it hadbeen postponed on several occasions and on 10.5.1989 the parties'having stated that they were not objecting to the affidavits filed, hadmoved that the matter proceed to inquiry on those affidavits. It is only on5.7.1989, after Counsel for the respondents had closed his case, thatCounsel for the present petitioner had, for the first time, raised anobjection on the basis that there had been non-compliance with Section66(4) of the Primary Courts' Procedure Act, in that, no notice had beenaffixed on the land which is the subject-matter of this dispute. The courthad directed that written submissions be filed on 19.7.1989. Whereasthe respondents had complied with that order, the petitioner had failedto do so. The matter was thereafter set down for order on 2.8.1989, onwhich date the petitioner had tendered some written submissions. TheCourt had rejected those submissions and delivered its order. By thatorder the learned Magistrate had held that the respondents had been inpossession of the said premises prior to and on 7.10.1986 and haddirected that the respondents be once again placed in possessionthereof, if necessary, by executing writ. Pursuant to that order, the Fiscalhad handed over the said premises to the respondents on 3.8.1989. Byhis present application, the petitioner seeks to revise that order.
The sole question that was urged before us was the failure to affix thenotice on the land in question as required by Section 66(4) of thePrimary Courts' Procedure Act. It was the contention of learnedQueen's Counsel for the Petitioner that the Court had violated afundamental provision of law by its failure to cause a notice to be affixedon the land which is the subject-matter of the dispute announcing that adispute affecting the land had arisen and requiring any person interestedto appear in Court on the date specified in such notice.
Learned President's Counsel for the respondents, on the other hand,while conceding that no notice had been affixed on the land as requiredby Section 66(4), submitted that non-compliance with the provisions ofthat section was merely a procedural irregularity and that the objection in.any event had been belatedly taken. It was his submission that this Courtshould not excercise its extraordinary powers of revision in the facts and’circumstances of this case, as that irregularity has not prejudiced thesubstantial rights of the parties or occasioned a failure of justice.
Learned Queen's Counsel for the petitioner cited a number ofauthorities in support of his contention that Section 66(4) was animperative provision of law and the Court, by its failure to cause therequired notice to be affixed on the land had violated a fundamental legalprovision. I shall refer to those authorities presently.
In Craig v. Kanseen,(1) it has been held that the failure to serve thesummons upon which the order in the case was made was not a mereirregularity, but a defect which made the order a nullity, and therefore,the order must be set aside.
In Re Pritchard,(2) where the originating summons had not beenissued out of the Central Office but from a District Registry, it has beenheld (Lord Denning, M.R., dissenting) that there had not been anycommencement of proceedings and the originating summons was anullity : there was not a mere irregularity but a fundamental defect.
In Emperor v. Sis Ram and others.{3) which dealt with similarprovisions of Section 145( 1) of the Indian Criminal Procedure Coderelating to possession of land where there is an imminent danger of abreach of the peace and where the Magistrate’s Order was challengedon the grounds inter alia that no notice was served on the other partyaccording to law nor was a copy of the notice affixed to someconspicuous place at or near the house in dispute, it has been held thatthe provisions of that section are mandatory and consequently if nonotice is issued as required and there is no finding that there was adanger of a breach of the peace, the order under Section 145 becomesultra vires.
In Emperor v. Hira Lai,{4) it has been held that Section 145 of theIndian Criminal Procedure Code is provided in order that a Magistratemay prevent a breach of the peace arising from a dispute as toimmovable property and he has no jurisdiction in such a matter unless he
is fully satisfied that there is a danger of a breach of the peace and
he must give the parties notice that it is to prevent a breach of
the peace that he is taking action under that section and if he fails to doso the primary intention of the Section is lost. The order of theMagistrate was accordingly set aside.
I shall now refer to the authorities cited by learned President'sCounsel for the respondents in support of the proposition that such non-compliance amounted only to a procedural irregularity.
In Thambipillai v. Thambimuttu,(b) it has been held that the purposeof affixing a notice on the land was to give constructive notice to theparties concerned and where the parties were brought to Court on thedate of the information, the necessity did not arise to affix such notice ina conspicuous place at or near the land.
In Ivan de Silva v. Shelton de Silva,(6) where complaint was made inrevision that the Magistrate had failed to comply with the provisionsparticularly in regard to the affixing of the notice on the land, but the onlyparties concerned in the dispute were aware of and present at the, inquiry and no objection was taken in regard to the failure to comply withthese provisions except at the concluding stages of the inquiry, it hasbeen held that the failure to comply with procedural requirements, inregard to notices and statements of claim do not affect the question ofjurisdiction and would not constitute a fatal irregularity.
In Debi Prasad v. Sheodat Rai,(7) where in proceedings underSection 145 of the Indian Criminal Procedure Code, no notice wasaffixed at or near the subject of the dispute, it has been held thatnotwithstanding that the procedure of the Magistrate was in somerespects defective, there was no cause for the exercise of the revisionaljurisdiction of the High Court, inasmuch as the parties had been given anopportunity of representing their respective cases and there wasnothing to show that the irregularities in procedure which had occurredhad caused any prejudice to either.
In Sukh Lai Sheikh v. Tara Chand 7a,(8) Where the Magistrate drewup an initiatory order under S. 145, Cl. (1) of the Indian CriminalProcedure Code, but omitted to direct the publication of a copy of it at ornear the subject of dispute and it was not so published in accordancewith Cl. (3) of that Section, it has been held that the provision as to the
publication of a copy-of the order in S. 145, Cl. (3) of the Code isdirectory and relates to a matter of procedure only and not ofjurisdiction ; that if Cl. (1) of S. 145 has been complied with, theMagistrate has jurisdiction to deal with the case and the mere fact thathe omitted to have a copy of such order published by affixing it to someconspicuous place at or near the subject of the dispute does not deprivehim of jurisdiction, but is an irregularity in his procedure.
In Ramalingam v. Thangarajah,{9) where the appellant complainedthat the proceedings offended the mandatory provisions of Part VII ofthe Primary Courts' Procedure Act (relating to inquiries into disputesaffecting land where a breach of the peace is threatened or likely) andWere therefore null and void, it was held that the provisions as to timelimits in Section 66 or 67, though the word 'Shall' there suggests thatthey are mandatory, should be construed as being directory and thatnon compliance by Court of the provisions of Section 66 or 67 of the Actdoes not divest the Court of the jurisdiction conferred on it by Section66(2).
On a consideration of the authorities cited by learned counsel on bothsides, it seems to me that the failure to cause the notice to be affixed onthe land does not affect the jurisdiction of the Court but is only anirregularity in procedure. Under Section 66(2), where an information isfiled undef subsection (1), the Court is vested with jurisdiction. Theother provisions which follow deal with the manner of exercising suchjurisdiction. Non-compliance with ev§ry rule of procedure does notdestroy the jurisdiction of the Court. While in some cases it may be onlyan irregularity, in other cases it may amount to an illegality and thusvitiate the proceedings. The object of affixing a notice in someconspicuous place on the land which is the subject-matter of the disputeis to bring the proceedings to the notice of all persons interested in suchdispute and thereby enable them to participate in such proceedings.-Inthe instant case, it is not suggested that there were any third partiesinterested in the dispute who would have appeared in Court if the noticehad been so affixed. On the contrary, on the petitioner's own affidavitfiled in the Court below, he was the.only party, other than therespondents, who had an interest in this dispute, as he claims to haveobtained possession of the subject-matter of the dispute on the date ofsuch dispute and had secured a transfer of the said property ten dayslater. There is also the further circumstance that by reason of the interimorder made by the Primary Court Judge, the Fiscal-had broken ppen the
premises in dispute and sealed the same. The learned Magistrateobserves in her order that on a consideration of the report relatingthereto, it is abundantly clear that the public of the entire Mawathagamatown would in consequence have had notice of this dispute. She furtherstates that the record shows that this dispute had received-much morepublicity than through affixing a notice. But, no one other than theseparties to the dispute had made any claims in respect thereof.
This certainly does not mean that judges need not strictly complywith these provisions or are free to adopt procedures of their own. Thevery fact that this objection has been taken in these proceedingsdemonstrates the necessity for such strict compliance. It is well to bear'in mind that the duty is cast by Section 66(4) on the Court to cause thenotice to be affixed on the land. A party in whose favour an order is madeshould not be exposed to the risk of having such order challenged by theopposing party due to lapses on the part-of the Court.
• But, in the instant case, it is patently clear that no prejudice has been •caused to any party by the Court's failure to cause the notice to beaffixed On the land as required. The only parties interested in the disputewere’ aware of and had participated in the inquiry. The facts andcircumstances of this case do not indicate that there was any otherperson interested in the dispute who could, not-have been reached'otherwise than through a notice being affixed on the land. Thus, in myview, there had only been a procedural irregularity which did not deprivethe court of its jurisdiction to proceed with the inquiry and make anappropriate order.
The next question that would, therefore, arise is whether this Courtshould exercise its extraordinary powers of revision in a case such asthis. As was stated earlier, the original Court's failure to cause the notice.to be affixed on.the land has not resulted in prejudice to any party. It isnot suggested that there is some other party interested in the disputewho would have appeared in Court had such notice been affixed. In fact,the proceedings do not disclose such a likelihood. The objection itselfhad been belatedly taken at the very concluding stages of the inquiryafter the present respondents had closed their case. Nor has the orderof the Magistrate been attacked in regard to her findings. It is indeed awell considered order, supported by the material on record. Therespondents have already been 'placed in possession by the Fiscalpursuant to the said order. Proceedings had commenced as far back as. 1986. The order complained of, in any event, does not affect the civil
rights of parties. The proviso to Article 138( 1) of the Constitution itselflays down that no judgment, decree or order of any court shall bereversed or varied on account of any error, defect or irregularity, whichhas not prejudiced the substantial rights of the parties or occasioned afailure of justice.
For the reasons aforesaid, I am of the view that this case does notwarrant interference by this Court, particularly in the exercise of itsdiscretionary and extraordinary powers of revision and wouldaccordingly, dismiss this application.
In all the circumstances of this case, I make no order as regardscosts.
WIJEYARATNE, J.- I agree.
Application dismissed.