092-NLR-NLR-V-74-V.-G.-WAMBECK-Appellant-and-D.-H.-D.-JOHN-DE-SILVA-and-another-Respondents.pdf
304
TYambeck v. de Silva
Present : H. N. G. Fernando, C.J., and Thamotheram, J.
G. WAMBECK, Appellant, and D. H. D. JOHN DE SILVAand another, Respondents
S. C. llGjG7{F)~D. C. Galle, 3415}31.
Conciliation Boards Act No. 10 oj 1003, as amended by Act Xo. 12 of 1003—Sections 0and 14—Dispute in respect of a contract to convey land—Whether it is“ a dispute in respect of immovable properly
Parties wlio aro in dispute os to whether n. land must bo convej-cd byono to the other hove a dispute in respect of immovable property within thomeaning of section 0 (a) of the Conciliation Boards Act even though in lowtho determination of tho dispute may depend upon tho terms of a contract.
Appeal from a judgment of tho District Court, Galle.
N.R. 21. Daluicalle, for tho substituted plaintiff-appellant.
C. Ranganalhan, Q.C., with 31. S. Osman and 31. Sivarajasingham, forthe defendants-respondents.
Cur. adv. vult.
IT. >7. G. FERNANDO, C.JWambcck v. de Silva
3G5-
July 24, 1971. H. N. G. Fernando, C.J.—
Tlic plaintiff brought this action for an order requiring the defendantsto execute a deed of transfer of a certain land in favour of the plaintiff.
The plaintiff's ease was that the plaintiff’s daughter one MildredGunatilaka and her husband had, by a deed of 3rd December 16G3,"conveyed this land to the defendants for the purpose of raising a loan.The plaintiff by tno deeds of 3rd December 19G3 and 13th December1963 became entitled to purchase the land from' the defendants onpayment to them of the sum of Rs. 35,000 within a period of one and ahalf years. Relying upon these deeds, the plaintiff brought into Courtthe sum of Rs. 35,000 and sought to enforce his option to purchase theland. One of the defences to the action was based on the provisions ofConciliation Boards Act No. 10 of 195S, and issue No. 9 was framed asfollows :—
“ Can the plaintiff maintain this action without complying with theprovisions of Section 14 of the Conciliation Boards Act No. 10 of 1958as amended by Act No. 12 of 1963 ? ”
The learned trial Judge answered this issue in favour of the plaintiffholding that the provisions of section 14 of the Act are not effective tooust the jurisdiction of the Court, and that therefore the Court hadjurisdiction to entertain the action, although the matter had notpreviously been referred to the Conciliation Board. Upon the other issuesin the case however, the learned Judge held that the plaintiff was notentitled to the Convejrance which he claimed on the ground that he hadnot tendered to the defendants the purchase price for this land within thetime stipulated in the relevant deeds, lie accordingly dismissed theplaintiff's action.
Counsel for the plaintiff in appeal has had to concede, in view ofjudgments of this Court, that issue No. 9 should have been answeredagainst the plaintiff. But Counsel has made a new submission of lawthat the provisions of s. 14 are not applicable to this action, and that aCertificate referred to in that section is not a pre-requisite for the.institution of an action of this nature.
It appears that the land of which the plaintiff now claims a convej'anceis situated in Ward No. 13 of the Municipal Town of Galle, and that the’area of that Ward is within the area for which a Conciliation Board hasbeen established. But there was apparently no evidence in this case toshow that the deeds which conferred on the plaintiff the option topurchase this land were executed in a place within an area for which aConciliation Board has been established. Therefore Counsel submitted,'it has not been shown that the dispute in this case could have beenreferred to the Conciliation Board as being a dispute of the kind mentionedin paragraph (b) or paragraph (c) of s. 6 of the Act. Accordingly in his
—K 8133 (10/71)
366
H. N. G. FERNANDO, C.J.— Wambcch r. de Silva
submission the dispute could only be referable to a Conciliation Board ifit fell within paragraph (a) of s. G which provides for the reference to aBoard of—
“ (a) any dispute in respect of any movable property that is l<ept, orany immovable property that is wholly or partly situate, in thatvillage area ; ”
Counsel’s further argument had been that this dispute is one in respectof a contract to convej' land, and is not “ a dispute in respect of immovableproperty He sought support for this proposition from a judgment inPelisv. Silva 1, in which it Mas held that an action to enforce an agreementfor tho sale of land is not an action in respect of land within the meaningof s. 9 (b) of the Civil Procedure Code. I must of course agree that suchan action is one to enforce an agreement of sale, but the judgment in thocited case docs not contain any reason for the opinion that such an actionis not also an action in respect of land, and I myself think there way bogood ground for holding that such an action may properly be institutedin the Court having jurisdiction in the place where the land is situated.
But even if the case just cited was correctly decided, it does not in myopinion assist Counsel’s present argument. For the purposes of civilprocedure, there are several known categories of actions, and it may bothat if a particular action falls clearly within the category of actions upona contract, it should not be regarded as falling also within a differentcategory. But in tho instant case the question for determination iswhether or not the Legislature in requiring disputes in respect ofimmovable property to be referred for conciliation intended that adispute regarding tho transfer of immovable property is “ a disputein respect of immovable property
Tho object of the Legislature clearly was that an attempt must bomade to settle disputes by Conciliation, and for this purpose the Legis-lature established Conciliation Boards for specified territorial areas. Ifthen there is a disputo concerning a land in any such area it is mostreasonable to think that the Legislature wished the dispute to be broughtbefore tho particular Board established for that area because in itsexpectation such a dispute would be best capable of settlement bypersons operating the conciliation procedure in that area.
It seems to mo that in common sense, and according to the ordinarymeaning of words, parties Who are in dispute as to whether a land mustbe conveyed by one to the other do have a dispute in respect of that landeven though in Jaw tho determination of the disputo may depend upontho tcnu3 of a contract.
{1058) CO N. L. R. 2S0.
smiMAXK, J.—Podiappuhamy t'. Sencviralne
367
In the result, the plaintiff’s action had to fail for non-compliance withe. 14 of ■ the Conciliation Boards Act, and the order dismissing thoplaintiff’s action is fox- that reason affirmed. The appeal is dismissedwith costs.
Tiiamotheram, J.—I agree.
Appeal dismissed.