055-NLR-NLR-V-67-THOMAS-SILVA-Appellant-and-CHARLOTTE-SILVA-Respondent.pdf
Present:Tambiah, J., and Sirimane, J.
1965
THOMAS
SILVA, Appellant, and CHARLOTTE SILVA,Respondent
S. G. 20/63—D. G. Panadura, 7695
Debt Conciliation Ordinance—Application for relief thereunder—Preliminaryhearing—Failure to give notice of it to applicant by registered post—Effect—Sections 23 (2) and 54 (1).
When an application for relief is made under section 14 of the DebtConciliation Ordinance the Board has no jurisdiction to dismiss it before noticefixing a date for preliminary hearing is sent by registered post to the applicantas required by section 23 (2) of the Ordinance. An application which isdismissed without jurisdiction must be regarded as still pending before theBoard, and the provisions of section 54 (l) are not applicable to it.
.A.PPEAL from an order of the District Court, Panadura.
E. B. Wilcramanayajce, Q.O., with S. W. Jayasuriya, for the defendant-appellant.
G. Ranganathan, for the plaintiff-respondent.
April 6, 1965. Tambiah, J.—
In this case the defendant made an application for relief under theDebt Conciliation Ordinance, and his application was received by theBoard on 28.3.60. This application was fixed for preliminary hearingas required by Section 23 of the Debt Conciliation Ordinance. Thequestion to be decided in this case is whether the order of the Boardfixing the inquiry was sent by registered post to the applicant, who isthe defendant in this case.
Section 23 (2) of the Debt Conciliation Ordinance is an imperativeprovision. At the trial Mr. Advocate Fernando, who appeared for theplaintiff, stated that he had no objection to certified oopies of the Boardproceedings being accepted. Mr. Advocate Jayasuriya marked.
documents D1 to D4. D4 is the order made by the Board dated 31.5.61.In D4 there is a statement to the effect that the notice requiring theapplicant to be present on the date of inquiry has not been sent to himfrom the office. Counsel for the appellant contended that this is notlegal evidence on which the oourt can act.
If no notice as required by Section 23 (2) of the Debt ConciliationOrdinance was sent by registered post to the applicant, it is our viewthat the Board had no jurisdiction to dismiss the defendant’s application,as it purported to do on 16.9.64. His application would, therefore,be pending, and it was unnecessary for the Board to have restored itback to the Roll, as it purported to do by the order contained in D4.
It is a fundamental rule of law that a party should be noticed beforean order could be made against him—vide De Mel v. M. W. H. de SVva.1
Mr. Ranganathan submitted that, where an application has beendismissed, that application can only be restored under the provisionsof Section 54 (1) of the Debt Conciliation Ordinance.
In our view, Section 54 (1) only applies where the Board havingjurisdiction to make such an order, dismisses the application.
If notice had not been served as required by Section 23 (2) of the DebtConciliation Ordinance, the defendant’s application was pending beforethe Board at the time of this action, and, therefore, this action should bedismissed.
We set aside the order of the learned District Judge and send the casebaok for re-hearing on the question as to whether notice of the order of theBoard fixing the date of the preliminary inquiry was sent by registeredpost to the applicant, in conformity with Section 23 (2) of the DebtConciliation Ordinance.
Order set aside.
The costs of this appeal as well as the trial will abide the event.Sirimatte, J.—I agree.