011-NLR-NLR-V-77-S.-THAMBIPILLAI-and-2-others-Appellants-and-S.-THAMBUMUTTU-and-another-Respon.pdf
TENNEKOON, C. J.—Thambijhllai v. Thambumullu
97
Present: Tennekoon, C.J., Wijesundera, J.,
and Perera, J.
S. THAMBIPILLAI and 2 others. Appellants, and S. THAMBU-MUTTIJ and another, Respondents
S. C. 9-10/72—D. C. Batticaloa, 2073/Misc.
Injunctions—Perpetual injunction issued by a District Court—Disobedience to it—Not punishable by the District Court ascontempt of Court—Patent want of jurisdiction of a Court—Notcurable by consent of parties—Civil Procedure Code {Cap. 101),ss. 662, 663, 792 et seq.—Courts Ordinance {Cap 6), ss. 57, 62 to67, 71, 87.
In an action for trespass instituted by a District Court theplaintiffs-respondents obtained a “ permanent ” injunction restrainingthe deferrdants-appellants from entering a land belonging to theplaintiffs. About a year later the plaintiffs complained on 5th August1970 that the defendants had acted in disobedience of the permanentinjunction issued by the Court and moved under Chapter G5 ofthe Civil Procedure Code that contempt proceedings be taken bythe Court against the defendants. At the commencement of theinquiry, Counsel for the defendants stated that he agreed with thesubmission of Counsel for the plaintiffs that disobedience to apermanent injunction is punishable as a contempt of Court underChapter 65 of the Code. The Court thereupon, after inquiry,convicted the defendants of the offence of contempt of the DistrictCourt.
Held, that, assuming, without so holding, that disobedience to aperpetual injunction is an act or omission done or committed inthe course of an act or proceeding in a Court, there is no provisionof law which makes such disobedience punishable “ as a contempt ”within the meaning of section 57 of the Courts Ordinance. Therefore,the District Court had no “jurisdiction” to take contempt proceed-ings against the defendants. Section 662 of the Civil ProcedureCode is applicable only to interim and interlocutory injunctions andnot to perpetual injunctions.
Held further, (i) that the fact that the defendants agreed in theDistrict Court that contempt proceedings could in law be takenagainst them could not estop them from contending in appeal thatthe District Court had no jurisdiction. The lack of jurisdiction inthe District Court was, here, a patent lack of jurisdiction and assuch could not be cured by acquiescence.
(ii) that where the lack of jurisdiction of a District Court ispatent, the provisions of section 71 of the Courts Ordinance are notapplicable.
A PPEALS from a judgment of the District Court, BatticaloaA. Mahendrarajah, with S. Mahenthiran, for the defendants-appellants.
P. Nagendran, for the plaintiffs-respondents.
Cur. adv. vult.March 13, 1974. Tennekoon, C.J.—
The plaintiffs-respondents sued the defendants-appellants andanother in the District Court of Batticaloa for damages causedby the latter to a certain land owned by them apd inter aliaLXXVH—5
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TENSEKOOX, C.J.—Thambipillai v. Thambumuttu
for a “ permanent ” injunction restraining the defendants fromentering the said land and committing acts of mischief, trespass,damage and nuisance. (The plaintiffs-respondents and the twodefendants-appellants will hereinafter be referred to as“ respondents ” and “ appellants ” respectively.) The respondents,after trial, succeeded in their action and an injunction was issuedon the appellants in terms of the prayer to the plaint. Theinjunction was served on them on the 24th of August 1969. Therespondents, on the 5th of August 1970, filed petition and affidavitunder Chapter LXV of the Civil Procedure Code and moved thatcontempt proceedings be taken by the District Court against theappellants. The complaint of the respondents was that theappellants had acted in disobedience of the permanent injunctionissued by Court in that they had on or about the 30th of June1970, entered the land in the occupation of the respondents withintent to intimidate the respondents and to commit acts ofmischief, damage and nuisance.
The appellants appeared in Court on summons and at thecommencement of the inquiry, Counsel appearing for theappellants stated that he agreed with the submission made byCounsel for the respondents to the effect that disobedience to apermanent injunction is punishable as a contempt of Court inaccordance with the procedure set out in Chapter LXV of theCivil Procedure Code. The learned District Judge after inquiryconvicted the appellants of the offence of contempt of the DistrictCourt of Batticaloa and sentenced the appellants to undergo aterm of three months’ rigorous imprisonment.
The present appeal is from the conviction and sentencepronounced by the learned District Judge.
Counsel for the appellants submitted that the convictions andsentences should be quashed for the reason that the DistrictCourt had no jurisdiction to punish for contempt when thereis disobedience to a perpetual as opposed to an interlocutoryinjunction issued by a District Court.
His submission further is that it was only the Supreme Courtestablished under the Courts Ordinance that had jurisdiction insuch a case prior to 1st January, 1974. Section 57 of the CourtsOrdinance provided that every District Court, Court of Requestsand Magistrate’s Court shall have a special jurisdiction to takecognizance of, and to punish every offence of contempt ofCourt—
“ committed in the presence of the Court itself, and alloffences which are committed in the course of any act orproceeding in the said Court respectively, and which aredeclared by law for the time being in force, to be punishableas contempts of Court ”.
TENNEKOON, C. J.—Thambipillai v. Thambumuttu
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It is not contended that the alleged offence of contempt wasin this case committed in the presence of the Court, Thus, forthe District Court to have jurisdiction it must be establishedthat,
it was an offence committed in the course of an act orproceeding in the Court and,
that such offence is declared to be punishable as acontempt.
Counsel for the appellants submits that there is no law whichdeclares disobedience to a perpetual injunction to be punishable“ as a contempt As against this, Counsel for the respondentscontends that section 663 of the Civil Procedure Code declaresdisobedience to all injunctions, whether they be interlocutory orperpetual to be punishable as contempts. I am unable to seeany merit in this contention ; I find myself in agreement withthe analysis of Section 662 made by Drieberg, J. in the case ofRambukpotha v. Jayakody29 N. L. R. 383. Drieberg, J. saidin that case—
“ The provisions of Section 87 of the Courts Ordinanceand of Chapter XLVIII of the Civil Procedure Code applyonly to interim and interlocutory injunctions and not toperpetual injunctions, which can be ordered only in the finaldecree in an action. ”
Thus when Section 663 (appearing in Chapter XLVIII) of theCivil Procedure Code enacts—
“An injunction granted by the Court on any suchapplication may in case of disobedience be enforced by thepunishment of the offender as for a contempt ofCourt ”,
it is dealing only with disobedience to interim or interlocutoryinjunctions and not disobedience to perpetual injunctions.Assuming, then, but without so holding, that disobedience to aperpetual injunction is an act or omission done or committedin the course of an act or proceeding in a Court, there does notappear to be any provision of law which makes such disobediencepunishable “ as a contempt ” within the meaning of Section 57of the Courts Ordinance. I conclude therefore, that the DistrictCourt of Batticaloa had no “ jurisdiction ” to take contemptproceedings against the appellants.
There are two further matters that call for examination in thiscase. Having regard to the fact, that the appellants through theirCounsel, can be said to have acquiesced, in the District Court 1
1 (1928) 29 N. L. R. 383.
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TENNEKOON, C.J.—Tham'jipillai v. Thambumidtu
proceeding to hear and determine the application for contemptproceedings being taken against the appellants in the DistrictCourt, the question arises whether such acquiescence estops theappellants from now contending that the District Court had nojurisdiction. It is sufficient to say that acquiescence cannotenlarge the jurisdiction of a Court granted by a statute. Thelack of jurisdiction in the District Court was, here, a patent lackof jurisdiction and as such could not be cured by acquiescence.As was said by Sansoni, J. in Kandy Omnibus Company Ltd. v.Roberts1—56 N. L. R. page 293 at 304,
“ It is not open to a person to confer jurisdiction by consentand no amount of acquiescence confers jurisdiction upon aTribunal or Court where such jurisdiction did not exist. ”
Justice Sansoni in this case went on to hold that where thereis a total want of jurisdiction, and not merely a case of irregu-larity or want of contingent jurisdiction, the fact that a partywaived objection to the jurisdiction of the Tribunal and tookpart in the proceedings thereafter, could not disentitle himdespite his acquiescence to object later that the order made bythe Tribunal was void.
The second matter is the effect of the provision contained inSection 71 of the Courts Ordinance. It reads—
“ Whenever any defendant or accused party shall havepleaded in any cause, suit, or action, or in any prosecutionbrought in any District Court, without pleading to thejurisdiction of such District Court, neither party shall beafterwards entitled to object to the jurisdiction of suchCourt, but such Court shall be taken and held to havejurisdiction over such cause, suit, action or prosecution. ”
This section to my mind can be availed of only in those caseswhere it can be said that although the particular District Courtwas without jurisdiction, the cause, suit, action or prosecutionwas within the general jurisdiction of some District Court. Undersection 62 of the Courts Ordinance it is enacted that—
“ Every District Court shall be a Court of record and shallhave original jurisdiction in all civil, criminal, revenue,matrimonial, insolvency, and testamentary matters, save andexcept such of the aforesaid matters as are herein, or byvirtue of the provisions of the said Criminal Procedure Codeor any other enactment for the time being in force, exclu-sively assigned by way of original jurisdiction to theSupreme Court, and shall also have jurisdiction over thepersons and estates of persons of unsound mind, minors, and
(1954) 56 N. L. B. 293 at 304.
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wards, over the estates of cestuis que trust, and overguardians and trustees, and in any other matter in whichjurisdiction has heretofore been, is now, or may hereafterbe given to District Courts by law.”
Sections 63 to 67 while setting out certain matters within thesubstantive jurisdiction of each District Court also confine thejurisdiction in such matters territorially. The want of jurisdic-tion in a particular District Court arising out of a latent factualsituation may be cured under Section 71 by failure to objectto jurisdiction, but it is difficult to imagine that the legislatureintended that District Courts of this country should havejurisdiction even in respect of those matters exclusively assignedto the Supreme Court when a party defendant or accused failsto object to the District Court exercising jurisdiction. Suchmatters would be patently outside the jurisdiction of any DistrictCourt. The words in Section 71,
“but such (District) Court shall be taken and held
to have jurisdiction over such cause, suit, action orprosecution ”,
are indicative of an intention on the part of the legislature tobring within that Section only those matters in which there isa contingent lack of jurisdiction which a party may well decideto ignore but not those in which the want of jurisdiction issubstantive or patent.
This being a case in which the District Court of Batticaloasuffered from a patent lack of jurisdiction for the reason thatpunishment for disobedience to a perpetual injunction is amatter exclusively assigned to the Supreme Court, the provisionsof Section 71 of the Courts Ordinance cannot be availed of bythe respondents.
The District Court of Batticaloa being thus wholly without“ jurisdiction ” to punish for contempt of the perpetual injunction,which it had earlier issued, the convictions of the appellantsand the sentences passed on them are quashed.
Wijesundera, J.—I agree.
Perera. J.—I agree.
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Appeals allowed.