013-SLLR-SLLR-2002-V-2-RODRIGO-v.-RAYMOND.pdf
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RODRIGO
v.RAYMOND
COURT OF APPEALUDALAGAMA, J. ANDNANAYAKKARA, J.
CALA NO. 414/2000
DC MT. LAVINIA NO. 514/99/RE
JULY 20, 2001
Additional issue – On value of Action and Jurisdiction – Mediation Boards Act,No. 72 of 1988 – S. 71 (1) – Non-production of certificate – Latent and patentwant of jurisdiction – Waiver or acquiescence – Absence of a certificate – Doesit create an absolute Bar.
The palintiff-respondent instituted action, inter alia, for ejectment of the defendant -petitioner from the premises in suit.
After the plaintiff-respondent's evidence the defendant-petitioner sought to formulatethree issues which were based on the value of the action and the jurisdictionof the Court to entertain the respondent's case.
The District Court rejected the additional issues.
It was contended that the action cannot be maintained without first obtaining acertificate of non-settlement from the Mediation Board.
Held:
Absence of a certificate does not create an absolute bar to the institution,and the maintenance of an action even where the value of the action isless than Rs. 25,800.
It only creates a latent want of jurisdiction as opposed to total lack ofjurisdiction or patent want of jurisdiction, where there is a latent want ofjurisdiction it can be validated by the conduct of parties, such waiver,acquiescence and inaction unlike in the case of total or patent want ofjurisdiction, no such conduct will confer jurisdiction on the Court.
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The defendant-petitioner has failed to formulate an issue relating to thejurisdiction of the Court at the commencement of the trial. His failureto frame an issue on such a vital matter will amount to a waiver of objectionsin regard to lack of jurisdiction of Court to hear and determine the respondent’saction. The defendant-petitioner is deemed to have consented andsubmitted to the jurisdiction of the Court and he cannot now be permittedto challenge the jurisdiction.
APPLICATION for Leave to Appeal from the Order of the District Court of
Mt. Lavinia.
Cases referred to :
Kandy Omnibus Co., Ltd. v. Roberts – 56 NLR 30.
Beatrice Perera v. The Commissioner of National Housing – Tl NLR 361.
A. K. Premadasa, PC with C. E. de Silva for defendant-petitioner.
P. A. D. Samarasekera, PC with Lalanath De Silva for plaintiff-respondent.
Cur. adv. vult.
September 14, 2001NANAYAKKARA, J.
The plaintiff-respondent (respondent) instituted action in the District 1Court of Mount Lavinia against the defendant-petitioner (petitioner)claiming, inter alia, for ejectment of the petitioner from the premisesin suit, recovery of damages and arrears of rent.
Thereafter, the petitioner filed answer praying for dismissal of theaction and other reliefs.
The trial commenced after recording the admissions and the issueof the parties. After the respondent’s evidence, which was concludedafter several dates of trial, the Court adjourned trial for 05. 10. 2000
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to enable the respondent to summon an official witness to give ioevidence on his behalf.
On this date the defendant sought permission of the Court toformulate three more additional issues which were based on thevalue of the action and the jurisdiction of the Court to entertain andhear the respondent’s case.
The additional issues that were raised, translated into English inessence, are as follows :
Is the value of action in point of fact and law less thanRs. 25,000?
Has the plaintiff obtained a certificate of non-settlement 20from the Mediation Board, where the premises in suit aresituated, before the institution of the action?
If the above-mentioned issue No. 16 is answered in theaffirmative and issue No. 17 is answered in the negative,can the plaintiff maintain this action?
When the learned Counsel for the respondent objected to thesaid issues being accepted by Court the parties were directed to tenderwritten submissions on the matter. The learned District Judge thereafteron 12. 12. 2000 delivered his order rejecting the additional issuesthat were raised by the defendant. Being aggrieved and dissatisfied 30by the said order of the learned District Judge, the defendant haspreferred this application by way of leave to appeal praying for thereliefs claimed in the petition.
When this matter was taken up for inquiry, the learned Counselfor the defendant argued that as the correct value of the action does
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not exceed Rs. 25,000, the respondent cannot have and maintain theaction without first obtaining a certificate of non-settlement from theMediation Board in terms of section 71 (1) of the Mediation BoardsAct, No. 72 of 1988. Non-production of a certificate from the MediationBoard is a matter which affects the jurisdiction of the Court to hear 40and determine the case. He further contended that the value of theaction as Rs. 50,000 has not been admitted in the answer of thedefendant and an issue challenging the jurisdiction can be raised atany time during the hearing of any action.
In reply to the argument of the Counsel for the defendant, Counselfor the respondent submitted, although the plaintiff has specificallyaverred in his plaint that the Court has jurisdiction to hear anddetermine the action, the defendant has not unequivocally andspecifically challenged the jurisdiction of the Court in responding tothe averments in the plaint, in his answer.so
Counsel further argued when the parties recorded their admissionsand issues, at the commencement of the trial, they had by their firstadmissions admitted the jurisdiction of the Court, now the defendantis estopped from challenging the jurisdiction of the Court.
The Counsel for the respondent further submitted, although thedefendant has averred specifically in his answer, as the dispute hasnot been referred to the Mediation Board, the respondent cannot haveand maintain the action. The defendant has failed to raise any issueon that averment.
At this stage, it is necessary to examine the question whether the sodefendant-petitioner is entitled to the relief claimed by him, by wayof leave in the light of the submissions and the decided authoritiescited by both parties. To determine this question one must closelyexamine the averments contained in the plaint, the position taken upby the defendant in his answer and the admissions and the contestedissues in the case.
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The defendant’s main contention in this Court was that, since thevalue of the action is less than Rs. 25,000, the respondent shouldhave referred the dispute to the Mediation Board in terms ofthe Mediation Boards Act and obtained a certificate of non-settlement 70before the action was instituted against the defendant. As the respondenthas failed to do so, the Court is not possessed of jurisdiction tohear and determine the respondent’s action.
It is clear that this argument of the defendant is based upon thequestion of jurisdiction of the Court to hear and determine actionswhere the value of the action is less than Rs. 25,000 in the absenceof a certificate of non-settlement from the Mediation Board. Even ifone were to accept the argument of the learned Counsel for thedefendant, it should be stated that the absence of certificate doesnot create an absolute bar to the institution, and the maintenance of soan action even where the value of the action is less than Rs. 25,000.
It only creates a latent want of jurisdiction as opposed to total lackof jurisdiction or patent want of jurisdiction. Where there is latent wantof jurisdiction, it can be validated by the conduct of parties, suchwaiver, acquiescence and inaction, unlike in the case of total or patentwant of jurisdiction no such conduct will confer jurisdiction on the Court.
As Sansoni, J. observed in Kandy Omnibus Co., Ltd. v. Roberts,™there is a sharp distinction between cases of patent and latent wantof jurisdiction where it appears on the face of the proceedings thatCourt had no jurisdiction is differently treated from cases where the sowant of jurisdiction is not so apparent and depending on some factwhich was in the knowledge of the defendant which he could haveput forward for some reason or other he has kept back. This positionis also clearly enunciated and fortified by His Lordship the Chief JusticeTennekoon in the case of Beatrice Perera v. The Commissioner ofNational Housing where His Lordship has proceeded to distinguishbetween the total lack of jurisdiction which is not curable by the
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conduct of parties and latent want of jurisdiction which is curable bythe conduct of parties.
As far as the instant case is concerned, the defendant knew that100the Court lacked jurisdiction to hear and determine the respondent’saction, I am at a loss to understand as to why he failed to formulatean issue relating to the jurisdiction of the Court at the commencementof the trial. Although there was a specific averment in regard tothe value of the action and non-production of a certificate from theMediation Board, in the defendant’s answer leading consequently tolack of jurisdiction of Court, his failure to frame an issue on sucha vital matter will amount to waiver of objections in regard to lackof jurisdiction of the Court to hear and determine the respondent'saction. The defendant is deemed to have consented and submitted noto the jurisdiction of the Court, and he cannot now be permitted tochallenge the jurisdiction of the Court.
It should also be observed although the respondent has specificallyaverred in the plaint that the Court is possessed of jurisdiction tohear and determine the action, the defendant in responding to theparticular averment in the plaint has not denied the jurisdiction ofthe Court in specific unequivocal terms. On the contrary, the defendanthas admitted his place of residence and the premises in suit weresituated within the local limits of the jurisdiction of the Court. Evenin regard to the averment relating to the value of action in the plaint, 120it is to be noted, that the defendant has refrained from respondingto this averment in clear specific terms, other than the general omnibusdenial, he has made at the commencement of his answer.
Moreover, it should be stated that when the admissions wererecorded at the commencement of the trial, the parties have in clearterms admitted the jurisdiction of the Court. Therefore, the defendantcannot be permitted at this late stage after several dates of trial deny
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jurisdiction of the Court. The defendant had ample opportunity ofobjecting to the jurisdiction of the Court, if he has chosen or electedto waive such objections, he cannot subsequently be permitted to 130challenge it. The defendant should not be allowed to blow hot andcold at the same time, in this matter. The defendant is deemed tohave submitted to the jurisdiction of the Court.
For the above-mentioned reasons, I am of the view that thisapplication of the defendant is without merit. Therefore, his applicationfor leave is refused. The respondent is entitled to costs fixed atRs. 10,000.
UDALAGAMA, J. – I agree.
Application dismissed.