125-NLR-NLR-V-74-W.-S.-JAYAWICKREMA-Petitioner-and-E.-NAGASINGHE-Respondent.pdf
Jayau-icl:rema v. Nagasinghc
523
1971Present:de Kretser, J.
W. S. JAYAWICKREMA, Petitioner, andE. NAGASINGHE, RespondentS. C. 103(71—Application for Pevision and Restitutio in integrum in
R. Hambantota, S-170
Conciliation Boards Act—Section 11—Absence of certificate of Conciliation Board-—Whether it can be a ground for setting aside a consent decree—Courts Ordinance,s. 75.
Where a consent decreo has been entered in on action and the dofondanthas enjoyed the foil fruits of tho decree, the defendant Trill not bo permittedby the Supremo Court to havo tho consent decree set aside on tho ground thattho lower Court had no jurisdiction to entertain or determine tho action bocausea certificate from tho Conciliation Board had not been filed with tho plaintin terms of section 14 of tho Conciliation Boards Act.
Point of timo at which objection can bo taken in lower Court considered.
.APPLICATION for revision or restitutio in integrum in respect of adecree entered by the Court of Requests, Hambantota.
Ranganathan, Q.G., with H. M. Jayatissa Herath and T. B. Dillimuni,for the defendant-petitioner.
Nimal Senanayake, with Nihal Singaravelu and Miss S. M. Senaratne,for the plaintiff-respondent.
Cur. adv. vult.
624■
DE KHET5ER, J-—J ay a widere m a v. Kagatinghs
November 18, 1971. de Kretser, J.—
The following facts are relevant to this order :—
On 19.7.68 the Plaintiff filed this action against the Defendant forejectment and damages.
On 29.10.68 the Defendant filed answer claiming he was not in arrearsof rent and pleading the protection of the Pent Restriction Act.
Oh 19.12.68 by consent of parties, who were represented by Counsel,the Case was settled. The relevant portion of the settlementreads “ Of consent, judgment is entered for the Plaintiff interms of para (a) of the Plaint and continuing damages at
the rate of Rs. 50 per monthtill Plaintiff is restored to
possession. Of consent it is agreed that Writ will not issuetill the 31st December, 1970”.
On 18.12.70 the Defendant filed Petition and Affidavit stating thathe had made every effort to find other accommodation without
success He pleaded the provisions of the Rent
Restriction Act and asked that he be allowed to continuepaying ” monthly damages
On 10.1.71 he amended his petition to plead that the Decree enteredwas null and void in that the Court had no jurisdiction toentertain or determine this action without a certificate fromthe Conciliation Board of the area having been filed with thePlaint.
The Trial Judge (Mr. H. W. Senanayake) in reference to the non-filing of a certificate from the Conciliation Board held :
That there was no proof, in the absence of evidence, that the
Conciliation Board was functioning during this period.
That the Defendant having not taken the objection and having
consented to the settlement of 19.12.6S had waived objectionsavailable to him re jurisdiction.
That the Defendant by reason of his conduct was precluded from
taking the objection at that late stage.
That in any event he did not have the power to set aside a
Decree already entered by consent in the Case. He thereforerefused the application with Costs. The Defendant thereuponmade the present application for revision and/or restitutio inintegrum.
At the hearing of the Petition the submission urged by Counsel forthe Petitioner was that the Court had no jurisdiction to entertain thePlaint as a Certificate of the Conciliation Board did not accompany it.
Section 14 of the Conciliation Boards Act provides that where aPanel of Conciliators has been constituted for any Cociliation BoardArea (a) noproccedings in respect of any dispute referred to in paragraphs
DE KRETSER, J.—Joyawic/crcma v. Ncgasinrjhc
525
(a) (fc) (c) of Section 6 shall be instituted in, or be entertained by, a CivilCourt unless the person instituting such proceedings produces a Certificatefrom the Chairman of such Panel that such dispute has been inquiredinto by the Board”
The view that Section 14 does not apply in a ease where the partiesdo not desire to refer a dispute to a Conciliation Board for which thoauthority was the Case of Wickramaratchi v. The Inspector of Police 1was overruled in the Divisional Bench Case Nonahamy v. Silva2. The' Chief Justice said " Section G does not mention the desire of partiesto refer disputes for inquiry. "When s. 14 imposes a condition precedentof the production of a Certificate from tlie Board, what is necessary is thatthe Board’s functions have been anteccdentlj- exercised ; this exercise cantake place because of action taken by the Chairman of his own motion,or because the parties have desired to seek the mediation of the Board,or else because a party who wishes to come to Court is compelled as a firststep to submit to an attempt at conciliation”,
Counsel for the Appellant relies strongly on the fact that in Nonahamyv. Silva it was held that (be filing of a Certificate in terms of Section 14is an imperative requirement for the institution of proceedings and theentertainment of them by a Civil Court. But as Silva J. pointed out inGunawardene v. Jayaivardene 3 “ It must be appreciated that unlike certainother statutes which come into operation throughout the Island themoment they become law, tho Conciliation Boards Act was broughtinto effect in different parts of the Island at different times. Even in anarea to which it was made applicable, until such time as a panel wasproperly constituted the provisions of section 14 would not comointo operation. The applicability also depended on tho type of disputewhich parties desired to bring to court”.
Tho Court of Requests therefore in the exercise of tho inherentjurisdiction it had bjr reason of Section 75 of the Courts Ordinance hadjurisdiction to entertain the Plaint in this Case unless or until it wasmade aware that it should not have been instituted without a Certificatein terms of Section 14 of the Conciliation Act.
The objection to jui-isdiction was taken at the earliest possibleopportunity in Nonahamy v. Silva with the consequence that theDivisional Bench had no reason to consider the position when it is soughtto be taken later in the original Court. That has been considered intwo Cases Robinson Fernando v. Henrietta Fernando 4 and Gunawardenev. Jayaivardene5. In the first of theso Cases, a Divorce Case, afterPlaintiff’s Case had been closed and after the Defendant and twoWitnesses had given evidence, the ’Trial Judge allowed an Applicationmade by the Defendant to amend the answer in order to raise the plea
1 (196S) 71 N. R. It. 121.8 {1071) 74 N. L. R. at 251.
8 (7070) 73 -V. L. It. 217.* (1071) 74 N. L. It. 57.
(1971) 74 N. L. R. 243.
526
DE KRETSER, J.—Jayawickrcma t. Xagasinghe
that the Court had no jurisdiction to try the case as the dispute hadnot been referred to the Conciliation Board and no Certificate from theChairman had been annexed to the Plaint. The Trial Judge thereafteruphold the plea to jurisdiction raised by the Defendant and dismissedthe action.
In Appeal Samcrawickramo J. with whom Pandita Gunawardene J.agreed, pointed out the distinction there is between patent jurisdictionand latent jurisdiction and coining to the conclusion that in this type ofCase the jurisdiction was latent, considered the question whether at thetime the Defendant sought to take the objection, Defendant had notprecluded herself by waiver, delay or acquiescence from raising theobjection to jurisdiction and was of the view having regard to the facts“ and in particular the prejudice to the Plaintiff and the late stage atwhich the amendment was sought to be made ” that the Defendant wasprecluded from raising the objection and that she had in fact waived it.
In the other Case Gunewardenc. v. Jcujctwardcne—a Case of Dent andEjectment—on the Trial date the Defendant raised two issues whichhad not been pleaded, one of which was t: can the Plaintiff maintainthis action without filing a Certificate from the Chairman of the Panel ofConciliators as required by Section 14 (1) («) of the Conciliation BoardsAct 10 of 59 as amended by Act 12 of 1903. The Plaintiff took noticeand on the adjourned Trial date the Case, was settled, the Defendantadmitting inter alia that a certificate from the Conciliation Board wasnot necessary in the Case. Judgment accordingly was entered forPlaintiff and the Defendant was given time till 31.12.70 to leave thepremises. In December 1970 the Defendant filed Petition andAffidavit pleading that the Conciliation Boards Act was in operation inthe village area in which the premises were situate and that in Law thePlaintiff could not institute and the Court could not entertain the Plaintwithout the Section 14 Certificate. The Defendant sought an orderthat the proceedings and decree be declared null and void. The Courtheld an Inquiry and postponed its order for 13.1.71. In the meantimeon 29.12.70 the Defendant applied to the Supreme Court asking for asimilar order in revision.
Justice G. P. A. Silva was of the view that the broad principlesenunciated by Samerawickramc J. in Fernando v. Fernando applied andwent on to say “ Quite apart from the merits of the question of lawraised in this petition, the circumstances relating to the conduct of thepetitioner preclude me from giving any relief by way of revision which isessentially a discretionary remedy. The defendant by his conduct onthe final day of the trial led the Court to believe that there was no basisfor the issue raised by him earlier regarding the entertainment of theplaint. He thereby obtained an advantage from the plaintiff and theCourt to remain almost two years in the premises, even though theplaintiff was 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 stay in the premises. These facts
DE KRETSER, J.—Jayau-ickrona v. KagasiuyUc
527
strongly point to bad faith on the part of the defendant and savours of anattempt- to mislead the court in order to obtain an order favourable tohim and, on the basis of an ostensible illegality, to resile from hisundertaking made solemn])' before court-, after securing for himself thefull advantage of the order at the expense of the plaintiff. Furthermore,the course that this case took in court, shows that the object ofcompelling parties to conciliate before coming to Court, namely to settletheir differences without bitterness being engendered was amply servedeven at the trial because both parties agreed to settle the ease and nothingfurther eoukl have been gained even by recourse to the ConciliationBoard. The delay of nearly two years after the settlement before makingthis application, apart from showing bad faith as I have slated earlier,is by itself a good ground which will persuade this court againstrevising the order of the lower court”
It will be seem that in Guuauardcne v. Jayaicurdenc what the petitionerwas trying to do was to ask t he superior court to revise the proceedings inthe inferior court for the reason that the inferior court had no jurisdictionto entertain the action. Dealing with latent jurisdiction Lopez L.J.,in his judgment quoted the opinion of the Judges delivered by A Vi lies, J.,to the House of Lords in. The Mayor of London v. Cox :—“ Where thedefect is not apparent, and depends upon some fact in the knowledge ofthe njapheant which ho had an opportunity of bringing forward in theCourt below, and lie has thought proper, without excuse, to allow thatCourt to proceed to judgment without setting up the objection, andwithout moving for a prohibition in the first instance, although it shouldseem that the jurisdiction to grant a prohibition in respect of the rightof the Court is not taken away, for mere acquiescence does not givejurisdiction—yet, considering the conduct of the applicant, theimportance of-making an end of litigation, and that the writ (hough ofright is not of course, the Court would decline to interpose, excepit pierhapsupon an irresistible case, and an excuse for the delay, such as disability,malpractice, or matter newly come to the knowledge of the
applicant.”. While Davey L.J. in his judgment in the same
case said apropos this passage “ It will, however, be observed that thelearned Judge’s statement is confined to cases where the defect is notapparent, and depiends upon some fact in the knowledge of the applicantwhich he might have brought forward in the Court- below, but has kepitback without excuse—that is, when the applicant has been guilty ofsome misconduct in the proceedings, and has in a sense misled theCourt”
It will thus be seen that there is ample support for the refusal of Silva J.to exercise his discretion by way of revision in Gunauardcne v. Jayauardeneand similar considerations cause me to refuse the present application,as Spencer Bower says at page 236 : “ when a p^arty litigant, being ina position to object that the matter in difference is outside the local,pecuniary, or other limits of jurisdiction of the tribunal to which hisadversary has resorted, deliberately elects to waive the objection, and
628
.DE KEETSER, J.—-Jayawickrcma v.agasi'ruj/ic
to proceed to the end as if no such objection existed,in the expectation ofobtaining a decision in his favour, he cannot be allowed, when thisexpectation is not realized, to set up that the tribunal had no jurisdictionover the cause or parties
At the argument before me Counsel for the respondent strongly reliedon the case of Fernando v. Fernando. At that time Gunawardene v.Jayaicardene had not found its way into the Law Reports. While Iagree with what has been said in Fernando v. Fernando in regard tojurisdiction, I must say with the utmost respect to the judges who decidedit that had the factual position in the present case been the same as inFernando v. Fernando—in reference to the time at which the objectionwas taken to jurisdiction—I would have found difficulty in followingthat decision for it appears to me that an objection to the jurisdictionof a Trial Court to determine a matter should be permitted at any pointof lime before its determination. I do not think that a plaintiff, if it isfound that he should in fact have filed a Section 14 Certificate withhis plaint, could complain of prejudice even legally when his effort tomislead the Court into entertaining his Plaint is found out. The factthat a defendant who takes the objection late is perhaps resiling fromwhat is called a “ gentleman’s agreement ” between Plaintiff andDefendant or more likely their respective lawyers is no reason forpenalising the Defendant when the Plaintiff is as much to blame inwhat alone the Court should resent viz. the effort to mislead it intothinking that it has jurisdiction for the Court acts on the facts as pleadedbefore it and not as they actually exist. The Court can always makean appropriate order for costs.
Be that as it may in the instant case what the Defendant is trying todo is to get an advantage not only after a determination of the matter inthe lower Court but also after he has enjoyed tho full fruits ofthat determination. Such conduct must not bo permitted. Theapplication is dismissed with costs.
Application dismissed.