066-NLR-NLR-V-56-W.-L.-A.-DEP-et-al-Petitioners-and-P.-NAGARATNAM-Respondent.pdf
Dep v. Nagarainatn
2fl2
1954Present : Fernando A.J.W. Li. A. DKP et al., Petitioners, and P. NAGARATNAM, RespondentS. C. 249—Application in Revision in C. R. Colombo, 32,445
Jurisdiction—Court acting beyond its powers—Consent oj parties—Validity of com-promise—Rent Restriction Act, A’o. 29 of 194S, s. 13.
Although parties cannot by agreement give the Courts jurisdiction whichthe Legislature has enacted that they are not to have, nevertheless a com-promise after action which is advantageous to a party and secured to him by ailocree subsequently entered of consent is not void as offending tho prohibitionagainst waiver. A sub-tenant, therefore, who, after a decree has been enteredagainst the tenant, consents to be bound by it upon conditions advantageous toliimself and embodied in the decree by adjustment, cannot subsequentlyresist enforcement of the decree on the ground that it is invalid for lack of juris-diction. The sub-tenant, in such a case, forfeits by wniver the protection ofsection 13 of tho Rent Restriction Act.
FERNANDO A.J.—Dcp v. Nayarainam
203
^APPLICATION to revise an order of the Court of Bequests, Colombo.
G. Weeramantry, for the 2nd, 3rd and 4th defendants petitioners.
«
P. Somatilakam, for the plaintiff respondent.
Cur. adv. vuU.
July 27, 1954. Fernando A.J.—
This is an application in revision in respect of an order of the loarnedCommissioner of Requests directing the issue of writ for the ejectment ofthe petitioners from certain residential premises in the city of Colombo.The plaintiff respondent had in 1951 instituted an action for the ejectmentof his tenant one B. W. Nicholas on the ground that the latter had sub-letthe premises (without plaintiff’s consent) in contravention of s. 9 of thoRent Restriction Act to the present petitioners who however were not madeparties to the action. The learned Commissioner dismissed that actionon the ground that the sub-letting was not proved, but on appeal againsthis order n decree was entered by this Court for the ejectment of Nicholas.When the plaintiff sought to enforce that decree lie was resisted by thepresent petitioners, and after some inquiry into their objections, a settle-ment was arrived at in June 1952 by which the petitioners agreed to bobound by the decree and were permitted to remain in occupation ‘payingdamages for each month, and by which writ of ejectment was not to issueuntil 31st December 1953. The decree was adjusted in terms of the settle-ment, which was honoured by the plaintiff during its period of operation.On 31et December 1953 (when the sands had all but run out), the peti-tioners moved for a stay of execution of the decree. . Tbe learned Commis-sioner on 9th April 1954, made order refusing the stay of execution andallowing the issue of writ, and the present application is for the revision ofthat order.
B Counsel for the petitioners makes the following submissions in supportof his application :—
The decree entered by this Court was a nullity for the reasonthat s. 13 of the Rent Restriction Act had the effect, on ti e facts of thecase, of depriving this Court of jurisdiction to enter decree for thoejectment of Nicholas, and the Commissioner should not thereforehave issued writ in execution of that decree. (It is unnecessary to setout the facts on which this contention is based.)
The decreo being a nullity, tho subsequent adjustment in termsof the settlement of June 1952 was itself a nullity and not binding on thepetitioners.
Jn consenting that writ may be issued after December 1953, thepetitioners had waived the protection of s. 13 of the Rent RestrictionAct, but that protection could not have been effectively waived, evenby consent.
In view of the opinion I have formed upon the last of these submissions,it is unnecessary to decide the interesting and perhaps difficult questionswhich arise upon Counsel’s other propositions, even if there bo substancoin them.
204
FERNANDO A.J.—Dep v. Nagaratnam
Counsel relied in the main on the following observations in the judgmentof a bench of five Judges in the ease of Ibrahim Saibo v. Mansoor 1: —“ S. 13says ‘ no action or proceedings for ejectment of the tenant of any promisesto which this Act applies shall be instituted in or entertained by any Courtunless the Board, on the application of the landlord, has in writingauthorised the institution of such action or proceedings’ except in cortainspecified cases. Any decree entered in an action in which such authority,being necessary, has not been obtained would be a nullity because a Courtacting without such authority would be acting without jurisdiction. Ithas to be noted that it is not competent for a defendant to contract outof such a requirement or by waiver tacit or express to obviate the neces-sity for compliance with it. There may be other cases where there is afailure of jurisdiction. Such pleas would be open to a sub-tenant in aninquiry under s. 327 or in a separate action brought against him.
Something more has to be said about the statutory protection given bytho Act to a tenant and of which a sub-tenant may avail himself.A tenant can never contract out of the protection afforded. It followsfrom this that he can at any moment recall a promise to surrenderpossession ”.
I am, with much respect, in entire agreement with those observationsconcerning the nature and scope of the protection afforded to tenants andsub-tenants by the Rent Restriction Act, but I find nothing in them whichcasts any doubt upon the correctness of the decision in the earlier case ofNugera v. Richardson 2. There, after the plaint was filed, the defendant(whether in waiver or ignorance of his right to protection) agreed to acompromise by which he was enabled to continue in possession for a con-sidorablo period ; and Gratiaen J. forcefully resisted his attempt on thoapproach of “ D-Day ” to have the agreed decree set aside on the ground oflack of jurisdiction. The principle to be derived from these judgments(road together) is that “ while parties cannot by agreement give the Courtsjurisdiction which the Legislature has enacted that they are not to have ”,nevertheless a compromise after action which is advantageous to a partyand secured to him by a decree subsequently entered of consent is not voidas offending the prohibition against waiver. A fortiori, a person who,after a decree has been entered, consents to be bound by it upon conditionsadvantageous to himself and embodied in the decree by adjustment,cannot subsequently resist enforcement of the decree on the score that it isinvalid. The petitioners in thi3 case had ample opportunity in Juno 1952to dispute the validity of the decree entered by this Court, if indeed itcould have been successfully challenged as a nullity. They chose insteadto have a favourable arrangement embodied in the decree and havo en-joyed the fruits of that arrangement for longer than the stipulated i>eriod,and they have thereby forfeited the protection of the statute. Moreover,thoir agreement in tho settlement'to pay damages during the poriod ofpermitted occupation was an admission of the fact that they were tres-passers, an admission which now estops them from claiming the protectionwhich the statute afFords to those in lawful occupation.
The application is refused with costs.
Application refused.
1 (1953) 54 N. L. R. 217 at p. 224.
(1949) 51 N. L. R. 116.