045-NLR-NLR-V-51-WEERASOORIA-Appellantand-CONTROLLER-OF-ESTABLISHMENTS-Respondent.pdf
GUXASEKARA J.—Weerasooria v. Controller of Establishments189
1949Present: Gunasekara J.
WEERASOORIA, Appellant, and CONTROLLER OFESTABLISHMENTS, Respondent.
S. C. 141—Workmen's Compensation Case No. C 3016,939142
Workmen’s Compensation—Order nisi dismissing application—Want of appearance—(/an it be set aside after fourteen days ?—Discretion of Commissioner—CivilProcedure Code—Section 84—Workmen’s Compensation Regulations—Regulation 30.
The Commissioner for Workmen’s Compensation has jurisdiction to set asidean order nisi dismissing an application on the ground of default of appearance.An order setting aside an order nisi is, therefore, binding on the parties, unlessit is reversed in appeal, and cannot be treated as a nullity even though it maybe an erroneous order.
ApPEAL from an order of the Commissioner for Workmen'sCompensation.
H. W. Jayewardene, for the appellant.
C. F. Jaynratn*, Croton Counsel, for the respondent.
Cur. adv. vuU.
May 10, 1949. Gunasekara J.—
This is an appeal from an order made by a Commissioner for Work-men's Compensation dismissing with costs an application for compensa-tion made by the appellant against the respondent.
190 OUNASEKARA J.—We*ro*oria v. Controller of Urtabluhinente
The order In question wms node on Rseembcr S3, 1918. The Coua-minrioner bed on a previous occasion, on November 10,1917, made anorder urn dismissing the application with coats on the ground of theappellant's failure to appear on the day fixed for the hearing. It appearsthat subsequently, at an inquiry held on December S3,1917, with noticeto the respondent, the appellant satisfied the Commissioner that therowere reasonable grounds for his default and the Commissioner madeordor setting aside the order nisi and fixing the application for Inquiry.The order of December 23, 1947, is not included in the record that hasbeen transmitted to this court, but the ordorthat is appealed from states,and Counsel for both parties are agreed, that such an order was made.At the subsequent inquiry the respondent's counsel contended that theorder nUi (which fixed a period of fourteen days for showing cause) hadalready become absolute before the order of December23,1947, was madeand even before the appellant made his application to havo the orderni»i set aside, which it appears was made on December 3, 1947. Thiscontention was accepted by the Commissioner and he made the orderthat is the subject of the present appeal, holding that the order nisihad become absolute and that therefore there was 44 no ground forproceeding with the inquiry
The main ground of the appeal is that the Commissioner has in effectpurported to set aside his own older of December 23,1947, and that this
he was not entitled to do.
Regulation 30 of the Workmen's Compensation Regulations, 1935,provides that, “ Save as otherwise expressly provided in the Ordinanceor these .Regulations" the provisions of Chapter XII of the ChrOProcedure Code (and certain other chapters of that Code) “ shall applyto proceedings before the Commissioner in so far as they may be applicablethereto." There follow two provisos, one of which is that44 the Com*missioner may, for sufficient reason, proceed otherwise than in accordancewith the said provisions if he is satisfied that the interests of the partieswill not thereby be prejudiced. ” One of the provisions of the CivilProcedure Code applied by this Regulation is section 84, which providesinter alia that—
“ If the plaintiff fails to appear on the day fixed … for thehearing of the action, and if the defendant on the oeoaskm of suchdefault of the plaintiff to appear is presoat in person or by Proctor,and does not admit the plaintiff's claim, and does not consent topostponement of the day for the hearing of the action, the eourt shall[lass a decree nisi…. dismissing the plaintiff's action, whioh saiddecree shall, at the expiration of fourteen days from the date thereof,become absolute, unless the plaintiff shall havo previously, on someday of which the defendant shall havo notice, shown to tho courtgood cause, by affidavit or otherwise, for his non*ap|>carance; "
and that
44 Tn case of such cause being shewn, the court shall set- aside thedecree, ami shall fix a day for proceeding with the actum
GUNASKKARA J.—Weeraaooriu v. Controller of Establishments 191
By the operation of Regulation 30, therefore, the Commissioner hasjurisdiction to set aside an order nisi made by him dismissing an appli-cation on the ground of the applicant’s failure to appear on the dayfixed for the hearing of the application.
It is well settled, however, that a decree nisi entered by a courtunder section 84 of tho Civil Procedure Code becomes absolute automati-cally at the expiration of fourteon days unless the plaintiff has previouslyshown good cause for his non-appearance, and that once the decree nisihas become absolute the plaintiff has no remedy under that section:Anamallay Chelty t’. Carton (1921) 3 Rec. 48; Mokideen v. Marikar(1940) 41 N. L. R., 249; de Samm v. de Silva (1940) 41 N. L. R. 419;de Mel t>. Kodagoda (1945) 46 N- L. R. 150.
It is contended for the respondent that therefore, when the Commi6*sioner has made an order nisi dismissing an application, he has no juris-diction to set it aside after the expiration of the period within which-causo must be shown ; and that consequently in the present case everystep taken by tho Commissioner after November 10, 1947, was a nullity
I am unable to accept this contention. Not only is the Commissionerempowered to set aside in appropriate circumstances an order «w» madeby him, but he is vested with a wide discretion as to whether he shouldproceed otherwise than in accordance with the relevant provisions of theCivil Procedure Code. It has been contended that in the present casehe did not decide to proceed otherwise than in accordance with thoseprovisions and that therefore his order of November 10, 1947, becameabsolute upon the expiration of fourteen days. That may be so, andin consequence the Commissioner’s order of December 23, 1947, mayhave been a WTOng order against which the respondent could havo success-fully appealed. It does not follow, however, that the order was a nullity.
The subject matter of tho order, whether that subject-matter is regardedas the application for compensation or the application to have the ordernisi set asido, was within the Commissioner’s jurisdiction, and, as waspointed out in the case of Hriday Nath Roy v. Ram Chandra Barna Sarnia,A. I. R. 1921 Cal. 34 a distinction must be drawn between the existenceof jurisdiction and the exercise of jurisdiction. To quote the words ofSir Asutosh Mookerjee, A. C. J. in that case—
“ The authority to decide a cause at all and not the decision renderedtherein is what makes up jurisdiction; and when there is jurisdictionof the person and subject-matter, the decision of all other questionsarising in the case is but an exercise of that jurisdiction ….
Since jurisdiction is the power to hear and determine, it docs notdepend either upon the regularity of the exercise of that power orupon the correctness of the decision pronounced, for the power todecide necessarily carries with it the power to decide wrongly as wellas rightlyThere is a clear distinction betweenthe juris-
diction of a court to try and determines matter andtliccrroneousactionof such court in the exorcise of that jurisdiction. The former involvesthe power to act at all, while tho latter involves the authority to actin the particular way in which the court does act. The boundary
192 GUNASEKARA J.—Weeraeoorta v. Controller oj Establishments
between an error of judgment and the usurpation of power is this:the former .is reversible by an Appellate Court within a certain fixedtime and is therefore only voidable, the latter is an absolute nullity.When parties are before the court and present to it a controversywhich the court has authority to decide, a decision not necessarilycorrect but appropriate to that question is an exercise of judicialpower or jurisdiction, ”
It appears to mo to be immaterial for the present purpose whetherthe order of December 23,1947, was an erroneous order or not, If it waserroneous it was merely voidable and not a nullity, and not having beenset aside in appeal it is binding on the parties. (The Crown Counselhas conceded that the respondent had a right of appeal against thatorder which he did not exorcise). It follows that the Commissionerwas not entitled to treat it as a nullity.
I set aside the order made by the Commissioner on December 23,1948, and direct him to proceed with the inquiry. The respondent willpay the appellant Rs. 157-50 by way of costs of appeal.
Order set aside.