072-NLR-NLR-V-74-S.-K.-GUNAWARDENE-Petitioner-and-Mrs.-M.-N.-JAYAWARDENE-Respondent.pdf
• Gunawardeiie v. Jayawurdene
218
1971Present : G. P. A. Silva, S.P.J.
S. K. GUNAWARDENE, Petitioner, andMrs. M. N. JAYAWARDENE, Respondent
S. C 964170—Application for Revision andor Restitutio inintegrum in C. R. Colombo, 96276
Jurisdiction—Action instituted in a Court of Bequests—Requirement of certificate ofConciliation Board—Whether it can be waived by acquiescence—ConciliationBoards Act No. 10 of 195S, as amended by Act No. 12 of 1003, s. 11(1) (a)—Burden of proof
When a party relics on a plea that the court has no jurisdiction to entertain »plaint without a certificate from the Conciliation Board, the burden is on him toshow the oxistence of facts which deprive the court of such jurisdiction. In theabsenco of such facts being brought to its notice the court has no duty in everycase to launch on an inquiry as to whether the. dispute in question aroso ina Conciliation Board area.
ApPLICATIOX for revision and/or restitutio in integrum in respectof an order of the Court of Requests, Colombo.
In a tenancy action one of the issues raised by the defendant waswhether plaintiff could maintain the action without filing a certificatefrom the Conciliation Board. On tho trial date the ease was settled,the defendant admitting that a certificate from the Conciliation Boardwas not necessary. Judgment was accordingly entered for the plaintiffin ejectment and the defendant was granted time till 31st December
SILVA, S.P.J.—Gunawardene v. Jayawardene
249
1970, a period of nearly two years from the date of trial, to leave thepremises.
On 29th December 1970, i.e. two days before the last day grantedto him to quit; the defendant filed the present application in revisionto have all the proceedings in the Court of Requests case declared nulland void on the ground that the Court had no jurisdiction to entertainthe plaint as a certificate of the Conciliation Board did not accompanyit.
N. R. M. DaluwaUe, for the- defendant-petitioner.
C. Rancjanulhan, Q.C., with L. V. R. Fernando, for the plaintiff-respondent.
Cur. adv. miU.
July 1, 1971. Silva, S.P.J.—
The plaintiff-respondent instituted this action in the Court of Requests,Colombo, on 10th August 19G7 against the defendant petitioner forejectment from certain premises belonging to the plaintiff and for arrearsof two months’ rent and damages till he was restored to possession of.the said premises. The plaintiff averred inter alia,.that the promiseswere assessed by the Municipal Council of Dehiwala-Mount Laviniaat an annual value which excepted the premises from the provisions ofthe Rent Restriction Act and that notice to quit was duly given by himto the defendant. The defendant in his answer put the plaintiff to theproof of the first averment and in regard to the second, while admittingthe receipit of the notice to quit, took up the position that it was bad inlaw.
On the first daj' of trial 26.6.68, the defendant and the proctor beingabsent, the trial proceeded ex parte and the learned Commissioner entereddecree in favour of the plaintiff as prayed for. Subsequently thedefendant moved to set aside the decree nisi and, at the inquiry, it wasagreed between the parties that that decree be set aside on. certainterms. Eventually, when the trial took place, the plaintiff raised twoissues :—
Are the premises in suit excepted premises for the reasons statedin certain paragraphs of the plaint and
If issue (1) is answered in the affirmative, is the plaintiff entitledto a decree in ejectment.
Die defendant too raised two issues both of which did not arise from thepleadings :—
Does decree in case No. S4463 of the Court of Requests, Colombo,
act as a bar to the institution of this action and
Can the plaintiff maintain this action without filing a certificatefrom the Chairman of the Panel of Conciliators as required by Section14(1) (a) of the Conciliation Boards Act No.-10 of 1958 as amended by
Act No. 12 of 1963.
1 –
250
SILVA, S.P.J.—Qunawardene t>. Jayawardene
The plaintiff, having first objected to the two issues raised bythe defendant, later agreed to take notice of them and further trial wasadjourned for 13.2.1960. On this day the case was settled, the defendantadmitting that the premises in suit were excepted premises and that acertificate from the Conciliation Board was not necessary in this caso.Judgment was accordingly entered for the plaintiff in ejectment andthe defendant was granted time till 31st December, 1970, a period ofnearly two years from the date of trial, to leave the premises.
In December, 1970, the defendant filed a petition and an affidavitdated 2nd December, 1970 before the Court of Requests, pleading thatthe Conciliation Boards Act was in operation in the village area in whichthe premises in question were situatedandthat in law the plaintiff couldnot institute this action and the court could not entertain the plaintwithout a certificate from the Conciliation Board. The defendanttherefore praj-ed that the proceedings and decree of the Court of Requestsbe declared null and void. The learned Commissioner ordered noticeon the plaintiff returnable on 21.12.1970 and called upon the defendantto support his application. On that day, the court held an inquiry andpostponed the order for 13th January, 1971. On 29th December, 1970,two days before the last day granted to him to quit the premises in termsof the settlement reached on 13.2.69 the defendant filed papers in revisionbefore this court to have all proceedings in the Court of Requests casedeclared null and void, to have the decree in ejectment entered by thatcourt set aside and writ of execution stayed, the application being basedalmost entirely on the ground that, the plaintiff’s action was wronglyconstituted as he failed to produce before the Court a certificatefrom the Conciliation Board in terms of Section 14 of the ConciliationBoards Act.
All the submissions of the counsel for the petitioner therefore centredround his main contention that the court had no jurisdiction to entertainthe plaint in this ease as a certificate of the Conciliation Board did notaccompany it. He strongly relied on the Divisional Bench decisionin the case of Nonahamy v. Hcilgrcit Silva l, in which the view wasexpressed that a court had no jurisdiction to entertain a plaintwithout the requisite certificate under Section 14 of the Conciliation .Boards Act. This finding, however, was preceded by the followingobservation of the Chief Justice :—“ In the present appeal the appellant{i.e. the plaintiff) does not contest either the position that the land towhich this action relates is situated in a Conciliation Board area or theposition that the dispute in this action is one in respect of immovableproperty in that area. The question which therefore arises is purelyone of law With respect, I am in entire agreement with this view.
In a case where the following facts are established by the party raising
1 (1370) 73 N. L. n. 217.
SILVA, S.P.J.—Gunaioardene v. Jayawardene
251
the issue that a court cannot entertain a plaint by reason of the absenceof a certificate from the Conciliation Board, namely :—
that the nature of the dispute is one to which the provisions ofthe Conciliation Boards Act apply
that the area in which the dispute arose is in a ConciliationBoard area and
that a panel of conciliators has been constituted for thatConciliation Board area
a court will have no jurisdiction to entertain a plaint unless the requiredcertificate from the Conciliation Board is attached to the plaint. Inherentin this principle however is the obligation on the party relying on suchplea to show the court in a particular case that those facts exist. Inthe absence of such facts being brought to the notice of the court, thereis no duty on the court—though counsel for the petitioner seemed tocontend there was—to embark on a voyage of discovery in every actioninstituted before it whether the dispute arose in a Conciliation Boardarea in which a panel of conciliators had been constituted.
Counsel for the petitioner submitted that, in the case of RobsonFernando v. Henrietta Fernando 1, when Samerawickrame J. held thatobjection relating to the want of jurisdiction to hear a case maybe waived by the defendant, if the want of jurisdiction is not apparenton the face of the record but depends on the proof of facts, he had not'considered the decision of the Divisional Bench in Nonahamy v. HalgralSilva (supra). Counsel for the respondent contended on the otherhand that Samerawickrame J. has assumed the correctness of thedecision in the Divisional Bench case but that his decision was basedon a different principle of waiver by acquiescence. I am inclined toaccept the contention of counsel for the respondent and I think thatthe view taken b}' Samerawickrame J. can be reconciled with the earlierdecision. It must be appreciated that unlike certain other statuteswhich come into operation throughout the Island the moment theybecome law, the Conciliation Boards Act was brought into effect indifferent parts of the Island at different times. Even in an area to whichit was made applicable, until such time as a panel v'as properly constitutedthe provisions of section 14 woiild not come into operation. Theapplicability also depended on the type of dispute which parties desiredto bring before court. Even where a panel of conciliators had beenconstituted, difficult questions can arise as to the demarcation of thevillage liniits and whether a particular portion of a village falls withinthe village area in which a panel had been constituted. Although theAct was passed as far back as 195S there would still be many villageareas in Ceylon to which it does not apply, no panel being constituted.When a plaintiff therefore institutes an action before a court withoutany reference to a certificate from a Conciliation Board, the court has
'(1971) 74 N. L. R. 57.
r 252-SILVA. S.P.J.—Qunawardene o. Ja'jawardene
do alternative but to accept the plaint on the face of i t. The questionof not entertaining a plaint would arise only if the defendant pleadsthat the dispute arose within a Conciliation Board area and that it issuch a dispute as would require reference to a Conciliation Board beforeaction is filed. The passage from the judgment of the Chief Justicequoted by me earlier shows that in that case it was common groundthat the dispute as well as the area in which it arose was such as to bringit within the operation of the Conciliation Boards Act and the questionwhich Samerawiekrame J. dealt with did not arise for considerationin that case. Had that question arisen, it nmy not have become/necessary for that court to consider the legality or otherwise of.the entertainment of the plaint.
The facts which I have set out earlier in regard to the instant caseshow clearty that neither the plaintiff nor the defendant in their pleadingsmade any reference to the dispute arising in a Conciliation Board area.There was therefore no obligation whatsoever on the court to launchon an inquiry into this matter before entertaining the plaint or evenafter receiving the answer. Thereafter, when the issue as to whetherthe plaintiff can maintain the action by reason of non-compliance with.the Conciliation Boards Act was framed by the defendant, the court.was prepazed to accept the issue even though there was neither any.averment in the answer nor any other fact placed before the court whichwould enable it- to arrive at a decision in tin's matter. On the next dateof trial however the defendant agreed that a certificate from theConciliation Board was not necessary and consented to judgment. The 'court was thus left with no material at all to decide the question of the.correctness of entertaining the plaint. In fact the cozzduct of thedefendant could only have led the court to believe that no such factsWere placed by the defendant as there were none. I think therefore, that the broad principle enunciated by Samerawiekrame J. in theease referred to earlier is applicable izi this case.
Quite apart from the merits of the question of law raised in this petition,the cjrcumstances relating to the conduct of tlie petitioner precludeme from giving any relief by way of revision which is essentiallya discretionary remedy. The defendant by his conduct on the final.day of the trial led the Court to believe that there was no basis for thefissile raised by him earlier regarding the entertainment of the plaint.
He thereby obtained .an advantage from the plaintiff and the court toremain almost two years in the premises, even though the plaintiffwas entitled to an immediate order for ejectment. The defendantenjoyed the full benefit of this period and only brought up this questionagain during the last month of his sta}- in the premises. These factsstrongly point to bad faith on the part of the defendant and savoursof an attempt to mislead the court in order to obtain an order favourableto him and, on the basis of an ostensible illegality, to resile from hisundertaking made solemnly before court, after securing for himself
Piyaaena t>. Silva
2 S3
the full advantage of the order at the expense Af the plaintiff.Furthermore, the course that this case took In court shows that theobject of compelling parties to conciliate before coining to court, namelyto settle their differences without bitterness being engendered wasamply served even at the trial because both parties agreed to settle thecase and nothing further could have been gained even by recourse tothe Conciliation Board. The delay of nearly two years after thesettlement before making this application, apart from showing • badfaith as I have stated earlier, is by itself a good ground which will persuadethis court against revising the order of the lower court. By making thisapplication, the petitioner has succeeded in depriving the respondentof the fruits of the decree in his favour for another six months. Theapplication is accordingly refused with costs. •
Application refused.