072-NLR-NLR-V-77-P.-BEATRICE-PERERA-Petitioner-and-THE-COMMISSIONER-OF-NATIONAL-HOUSING-and-3-o.pdf
Per era v. Oommissioner of National Bousing
361
1974 Present: Tennekoon, C.J., Tittawella, J., and Walpita, J.P. BEATRICE PERERA, Petitioner, and THE COMMISSIONEROF NATIONAL HOUSING and 3 others, Respondents
S.C. 521/73—In the matter of an Application for a Writ ofCertiorari and a Writ of Prohibition
Jurisdiction—Non-service of summons on defendant—Ex partejudgment against him—Liability to be set aside as void ab initio—Lack of competency in a Court—Difference in effect betweenpatent want of jurisdiction and latent want of jurisdiction—Ruleof estoppel—Scope—Civil Procedure Code, ss. 60, 207, 808, 823(3)—Evidence Ordinance, s. 44—Protection of Tenants (SpecialProvisions) Act, No. 28 of 1970—Section 5 (1)—Prohibition ofejectment of a tenant other than on an order of a competentCourt—“ Competent Court
Where summons has not been served at all, an ex parte judgmentagainst the defendant is void ab initio and the defendant canchallenge its validity at any time when the judgment so obtainedis sought to be used against him either in the same proceedingsor collaterally, provided always that he has not by subsequentconduct estopped himself by acquiescence, waiver or inaction.
Difference in effect between patent want of jurisdiction and latentwant of jurisdiction discussed.
The 3rd respondent was a tenant of the petitioner. She wassummarily ejected from the rented premises under a writ of• possession issued by the Court of Requests, Colombo, following anex parte decree entered against her in an action in ejectmentinstituted by the petitioner. Soon afterwards she filed petition andaffidavit praying that the judgment and decree entered ex parteagainst her be vacated on the ground that no summons had beenserved on her either personally or by means of substituted serviceand that she had been quite unaware of the action. After inquirythe Commissioner of Requests found that the Fiscal’s Officer whogave evidence of his efforts to serve summons and of the substitutedservice on the 3rd respondent was totally unworthy of credit. Thedefault judgment and decree were therefore vacated and the 3rdrespondent was granted an opportunity to file answer and defendthe action. The Court, however, omitted to make a consequentialorder that the 3rd respondent be restored to possession of thepremises immediately, pending the action, even though it was thefraud of the Court’s own officer—the Fiscal’s Officer—that hadled to her summary ejectment. The 3rd respondent then applied tothe Commissioner of National Housing for immediate restoration ofpossession of the premises to her under section 5 (21 (c) of theProtection of Tenants (Special Provisions) Act, No. 28 of. 1970 onthe ground that she had been lawfully ejected “ otherwise than onan order of a competent Court ”. The Assistant Commissioner ofNational Housing, after holding an inquiry, made order in favourof the 3rd respondent. The present application by the petitionerwas for a Writ of Certiorari quashing the order of the AssistantCommissioner of National Housing.
Held, that the Assistant Commissioner of National Housing madeno error in law in holding that the ex parte order of ejectment onthe basis of which the 3rd respondent was ejected was the orderof a Court not competent to make it. The order of ejectment whichhad been made by the Court of Requests was void ab initio. Theexpression “ competent Court ” is used in section 5 of the Protectionof Tenants (Special Provisions) Act in the sense in which it – isused in section 44 of the Evidence Ordinance.
• “ The method provided • by law for service of process had notbeen followed by the Court (albeit the failure was that of anagent of the Court) and the Court was without competence to
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TENNEKOON, C.J.—Perera v. Commissioner of National Housing
proceed further in the action. A judgment delivered under suchcircumstances is void and can be challenged both in the very Courtand in the proceedings in which it was had and also collaterally,and it also follows that where such an attack is made on a judg-ment, if the lack of jurisdiction or competence in the Court is notapparent on the record, extrinsic evidence would be admissibleto show that in fact the Court did not at the time it gave judgmenthave jurisdiction to do so—even to the extent of contradicting therecord. ”
-APPLICATION for a Writ of Certiorari and a Writ ofProhibition.
R. S. R. Coomaraswamy, with S. C. B. Walgampaya, for thepetitioner.
C. Chakradaran, for the 4th respondent.
C. Ranganathan, with K. Sivananthan, (Miss) H. M. T.Panditha-Gunawardena and S. Sri Raj an, for the 3rd respondent.
N,Sinnetamby, Senior State Counsel, as Amicus Curiae.
August 28, 1974. Tennekoon, C.J.—
The 3rd respondent, Saraswathi Narayanan, was occupyingpremises No. 108, Galle Road, Wellawatte, and running a businessthere as a tenant of the petitioner, Beatrice Perera. Whilst shewas so in occupation she was summarily ejected on the 10th ofJuly 1970 under a Writ of Possession issued by the Court ofRequests, Colombo in Case No. 759/E.D. of the said Court. The3rd respondent thereafter discovered that her landlady, thepetitioner, had on the 13th of August, 1969, instituted action inthe Court of Requests praying that she be ejected from thepremises on the ground that she had while occupying the premisescaused wilful damage and wanton destruction to her premises.In return to the summons, the Fiscal’s Officer made a reportsupported by an affidavit to the effect that the defendant, in thatcase, that is, the 3rd respondent was evading summons. TheCourt had then ordered substituted service of summons on thedefendant ; such service was reported by the Fiscal’s Officer ashaving been effected ; as the 3rd respondent did not appear onthe date fixed in the summons for her appearance the case wasfixed for ex parte hearing ; after ex parte trial, judgment anddecree were entered for the plaintiff, that is the petitioner inthese proceedings. It was this decree that had been executedon the 10th of July 1970. On the 14th of July, the 3rd respondent
Cur. adv. vult.
TENNEKOON, C.J.—Pereru V. Commissioner of National Housing
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filed petition and affidavit in the Court of Requests in case No.759/ED and prayed that the judgment and decree entered exparte against her be vacated as there was no service of summonson her, no attempt to serve it on her, nor any substituted serviceeffected.
After inquiry the Commissioner of Requests found the Fiscal’sOfficer who gave evidence of his efforts to serve summons andof the substituted service on the 3rd respondent to be totallyunworthy of credit ; he held that no summons had been servednor any substituted service effected and he made order onthe 25th of February, 1971, vacating the default judgment anddecree and granted the defendant an opportunity to file answerand defend the action. Learned Commissioner, however, madeno consequential order to see that the 3rd respondent wasrestored to possession of the premises even though it had nowbecome perfectly clear that it was the fraud of the Court’s ownofficer—the Fiscal’s Officer—that had led to the making of theorder of ejectment. It seems to me that the inherent powers ofthe Court are wide enough to have enabled the Court to orderthe plaintiff in that case to vacate the premises and to restorepossession to the 3rd respondent, so that the status quo antethe institution of the action in the Court of Requests might havebeen restored and the action which had now been reinstatedmight proceed meaningfully. See in this connexion the case ofSirinivasa Thero v. Sudassi Thero
On the 29th of May, 1971, the 3rd respondent applied to theCommissioner of National Housing for an order under section5 (2) (c) of the Protection of Tenants (Special Provisions) Act,No. 28 of 1970.
Section 5 of that Act reads as follows —
“ 5 (1) No landlord of any premises or other person shall, byhimself or through any other person, eject or causeto be ejected from such premises, otherwise than onan order of a competent Court, the tenant of, or theperson in occupation of, such premises notwithstandinganything to the contrary in any oral or writtenagreement by which such premises were let.
(a) Where the tenant of, or the person in occupationof, any premises notifies the Commissioner thathe has been ejected from such premises in contra-vention of the provisions of sub-section (1), theCommissioner may hold an inquiry for the purpose 1
1 (I960) 63 N. L. R. 31 at 34.
364TSN’N’EfCOOJT, G.J.—-Perera v. Commissioner of National Housing
of deciding the question whether or not suchtenant or person has been ejected from suchpremises.
Where the Commissioner decides that such tenantor person has been ejected, then,—
such tenant or person shall be entitled to have
the use and occupation of such premisesrestored to him ; and
the Commissioner shall in writing order that
every person in occupation of such premisesshall, on such date as shall be specified in theorder, vacate such premises and deliverpossession thereof to the person ejected, andif any person ordered to vacate and deliverpossession fails to comply with such order,he shall be ejected from such premises inaccordance with the provisions of section 6.
Every order made under this paragraph shall becommunicated by registered post to every personin occupation of such premises. ”
After holding an inquiry, at which the landlady, the presentpetitioner was present and was given an opportunity of beingheard, the 2nd respondent, the Assistant Commissioner ofNational Housing, made order dated 6th June, 1973, in terms ofsection 5 (2) (c) (ii) of the Protection of Tenants (SpecialProvisions) Act ordering the person in occupation of the premiseson that date, that is, A. Jamaldeen, the 4th respondent (whohad rented out the premises from the petitioner after the 3rdrespondent was ejected) and all others in occupation of thepremises to vacate the premises and to deliver possession thereofto the 3rd respondent Saraswathie Narayanan. The presentapplication is for a Mandate in the nature of a Writ of Certiorariquashing the order of the 2nd respondent.
From a perusal of the order of the 2nd respondent, it is evidentthat he proceeded on the basis that the 3rd respondent had beenejected by the petitioner “ otherwise than on an order of acompetent Court”.
It is submitted by Counsel for the petitioner that the 2ndrespondent was mistaken in law in taking the view that the orderof ejectment was made by a Court which was not competent
TjENTSTjEKOON", C-J-—Perera v. Commissioner of National Hoasing
3GB
to make such an order. He refers to the provisions of the CivilProcedure Code relating to actions in the Court of Requests andsubmits that the Commissioner of Requests in giving ex partejudgment for the petitioner, as plaintiff in the C. R. action, actedcompletely within the law and that he could not indeed haveacted otherwise^ for the Commissioner of Requests had beforehim a report supported by an affidavit from the Fiscal’s Officerthat substituted service had been effected on the defendant. Hesubmits that the order of ejectment under which the 3rdrespondent was ejected was not a nullity or an order void ab-initio but only voidable and that the order not having been yetset aside when the 3rd respondent was ejected by the Fiscal*the petitioner in taking out Writ of Possession and the Fiscal’s.Officer acting thereunder were acting under the order of acompetent Court.
The contention for the 1st, 2nd and 3rd respondents isthat that order is not merely voidable but one that was voidab initio.
The distinction between an order which is a nullity and onewhich is voidable at the instance of the party affected on theground of irregularity is difficult to define. But before proceedingto examine that question it is necessary to determine what thepowers of the Commissioner of National Housing are when in anenquiry under section & of the Act he is faced with an order ofa Court under which the landlord seeks to justify the ejectmentand it is contended for the other side that the order was onemade by a Court not ‘ competent ’ to make it. I cannot thinkof any sense in which the word 1 Competent ’ is used in section 5than that in which it is used in section 44 of the EvidenceOrdinance ; that provision reads : —
“ Any party to a suit or other proceeding may show thatany judgment, order or decree which is relevant undersection 40, 41 or 42 and which has been proved by the adverseparty, was delivered by a Court not competent to deliver itor was obtained by fraud or collusion.”
There is no doubt that what is postulated in section 44 of theEvidence Ordinance is a jurisdictional test. The purpose of givinga party against whom a judgment is produced the right toshow that it was delivered by a Court not competent to deliver itis to give that party the opportunity of showing that the judg-ment is one that can be ignored on the ground that it is a nullityor void ab initio. Where in an inquiry under section 5 of theProtection of Tenants (Special Provisions) Act, the questionarises as to whether the order of the Court under which a tenant
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TBNNBKOON", O.J.—Porera v. Commissioner of National Bousing
was ejected was the order of a “ competent ” Court, the questionfor the Commissioner of National Housing (or the AssistantCommissioner as the case may be) will be the same ; it is for himto decide whether the judgment or order under which the tenantwas ejected was or was not void ab initio by reason of want ofcompetence in the Court.'
Lack of competency in a Court is a circumstance that resultsin a judgment or order that is void. Lack of competency mayarise in one of two ways. A Court may lack jurisdiction overthe cause or matter or over the parties; it may also lackcompetence because of failure to comply with such proceduralrequirements as are necessary for the exercise of power by theCourt. Both are jurisdictional defects ; the first mentioned of theseis commonly known in the law as a * patent ’ or ‘ total ’ want ofjurisdiction or a defectus jurisdictionis and the second a ‘ latent ’or * contingent ’ want of jurisdiction or a defectus triationis. Bothclasses of jurisdictional defect result in judgments or orderswhich are void. But an important difference must also be noted.In that class of case where the want of jurisdiction is patent,no waiver of objection or acquiescence can cure the want ofjurisdiction ; the reason for this being that to permit parties bytheir conduct to confer jurisdiction on a tribunal which has nonewould be to admit a power in the parties to litigation to createnew jurisdictions or to extend a jurisdiction beyond its existinglimits, both of which are within the exclusive privilege of thelegislature ; the proceedings in cases within this category arenon coram judice and the want of jurisdiction is incurable.In the other class of case, where the want of jurisdiction iscontingent only, the judgment or order of the Court willbe void only against the party on whom it operates butacquiescence, waiver or inaction on the part of such person mayestop him from making or attempting to establish by evidence,any averment to the effect that the Court was lacking in contin-gent jurisdiction. This distinction is brought out in certainpassage which I quote from Shortt on Mandamus (1887) andSpencer Bower on Estoppel by Representation. Shortt says atpage 447 : —
“ But where the want of jurisdiction does not appear uponthe face of the proceedings if the defendant will lie backand suffer that Court to go on under an apparent jurisdictionit would be unreasonable that this party, who whendefendant below has thus lain by and concealed from theCourt below a collateral matter, should come hither on aftersentence against him there and suggest that collateral matter
TENNEKOON, O.J.—Perera v. Commissioner of National Bousing
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as a cause of prohibition and obtain prohibition upon it,after all this acquiescence in the jurisdiction of the Courtbelow. ”
Spencer Bower at page 308 of his work on Estoppel by Represen-tation 1966 (2nd Edition) says this :—
“ So, too, when a party litigant, being in a position toobject that the matter in difference is outside the local,pecuniary, or other limits of jurisdiction of the tribunal towhich his adversary has resorted, deliberately elects to waivethe objection, and to proceed to the end as if no suchobjection existed, in the expectation of obtaining a decision inhis favour, he cannot be allowed, when this expectation is notrealized, to set up that the tribunal had no jurisdiction overthe cause or parties, except in that class of case, alreadynoticed, where the allowance of the estoppel would result iiia totally new jurisdiction being created. The like estoppel israised by a party’s attendance at the hearing and taking partin the proceedings without raising any objection to thepersonal disqualification of a member of the tribunal, or tothe non-compliance of any notice, summons, or service ofprocess, with statutory requirements or rules of Court, or tothe informality of a Writ. ”
No doubt section 207 of the Civil Procedure Code enacts that: —
“ All decrees passed by a Court shall subject to appealwhen an appeal is allowed be final between the parties. ”
This provision does not stand in the way of an attack on thejudgment on the ground of lack of competence in the Courtwhich pronounced it. Indeed that is the very purpose for whichsection 44 of .the Evidence Ordinance exists.
Under section 60 of the Civil Procedure Code (which is alsoapplicable to actions in Court of Requests—see section 808)summons must be served personally or if the Court so orders bya mode of substituted service. The finding of the Commis-sioner of Requests was that there was neither personalservice nor service in the substituted mode and thefailure to do so was the failure of an officer of Court—the Fiscal’s Officer. Thus the method provided by lawfor service of process had not been followed by the Court(albeit the failure was that of an agent of the Court) and theCourt was without competence to proceed further in the action.A judgment delivered under such circumstances is void and can
368 TENNEKOON, C.J Per era v. Commissioner of National Housing
be challenged both in the very Court and in the proceedings inwhich it was had and also collaterally, and it also follows thatwhere such an attack is made on a judgment, if the lack ofjurisdiction or competence in the Court is not apparent on therecord, extrinsic evidence would be admissible to show that infact the Court did not at the time it gave judgment have juris-diction to do so—even to the extent of contradicting the record.It is only the rule of estoppel adverted to by me earlier that candeprive a party of the right of attacking a judgment or order asvoid ab initio ; but when a party is not in the position of beingdeprived of his right to attack the judgment or order by theestoppel, what he claims would be that the Court had nojurisdiction to make the decision or order and that it is thereforevoid ab initio.
In Manomani v. Velupillai1 the question arose whether a personwho had purchased property at a sale in execution of a decreeobtained against a defendant on whom summons had not beenserved had valid title to the property. Justice Canekeratne inthe course of his judgment said :
“ Thus in the present case there was no foundation forthe exercise of jurisdiction by the Court of Requests ofPoint Pedro against the plaintiff who was not in Ceylon atthe time of the institution of the action ; the decree as againsther was void. ”
Again in Jamis v. Dochinona2 case in which facts similar tothose under consideration in relation to C. R. Colombo CaseNo. 759/ED were present Jayatillake, J. said :
“ The appellant does not ask for indulgence under section823 (3) of the Civil Procedure Code. He says that summonswas not served on him and that the Court acted withoutjurisdiction in entering judgment against him under section823 (2). I think he is right. ”
Another illustration of void judgment is seen in the case ofMohamadu Cassim v. Perianan Chetty Chief Justice Lascellessaid, the power of a Judge to inquire into the validity of ajudgment debt where there is evidence that the judgment hasbeen obtained by fraud or collusion or that there has been somemiscarriage of justice is unquestionable. He went on to holdin that case that any action brought after the dissolution of aco-partnership against a former partner’s nomination, service ofsummons on one of the defendants is not good service on the
1 (1949) SO N. L. R. 289.» (1942) 43 N. L. R. 527.
» (1911) 14 N.L. R. 385.
TENNEKOON, C.J.—Percra v. Commissioner of National Housing
369
others. The Chief Justice went on to hold that a judgment isnull and void, and cannot be executed against a person who isnot served with summons.
The application of this principle by English Courts is seen inthe case of Craig v. Kanseen It was held in this case that failureto serve summons upon which the order in that case is madewas not a mere irregularity, but a defect which made the ordera nullity.
It was contended by counsel for the respondent that theprovisions of section 823 (3) necessarily imply that a judgmentobtained by default in a Court of Requests is merely voidableand not void. I do not think that a defendant who never hadnotice of the action and against whom a default judgment ororder has been entered need proceed under section 823 (3) ;as was held by Jayatilleke, J. in Jamis v. Dochinona, referred toearlier, a defendant in such a situation need not ask the indul-gence of Court under section 823 (3) ; where summons hasnot been served at all, an ex parte judgment against the defen-dant is void and the defendant can challenge its validity at anytime when the judgment so obtained is sought to be usedagainst him either in the same proceedings or collaterally,provided always that he has not by subsequent conduct estoppedhimself. In this context the words ‘ void ’ and ‘ voidable ’ must beused with caution. Where there is a want of jurisdiction whetherpatent or latent the result is a void judgment ; the only questionthat then emerges is whether such a ‘ judgment ’ is—to use a wordthat is unattractive but sufficient to convey my meaning—‘ vali-dateable ’. Where the judgment is void for want of ‘ patent ’ juris-diction it cannot, for reasons which have been noted earlier, bevalidated by an acquiescence or waiver or inaction; it is anullity which cannot be given legal status by the parties to theaction. Where the judgment is void for want of 1 latent ’ jurisdic-tion it can be validated by acquiescence, waiver or inaction andif not so validated, it continues void ; a party against whom sucha judgment operates may elect to treat it as valid and bindingon him ; where he elects to treat it as not binding he cannot bedescribed as seeking to invalidate a valid judgment; he wouldpqiy be seeking to expose its latent invalidity and to show thatgb initio it was void.
A useful comment on the use of the words ‘ void ’ and ‘ voidab initio’ and ‘nullity’ in relation to judicial and quasi judicialdecisions is to be found in the judgment of the Privy Council inDurayappa v. Fernando *. Jn this case the Minister of Local
111943) 1 A. E.R. 108.* 11966) 69 N.L. R. 268 iU 272 H sea.
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TENNJ5KOON, C.J.—Perera v. Commissioner of National Housing
Government had dissolved the Colombo Municipal Councilwithout giving the Council an opportunity of being heard in itsdefence. Lord Upjohn having discussed some of the viewsexpressed on this same question in Ridge v. Baldwin1 goes on tosay—
“ Lord Morris of Borth-y-Gest also considered the questionand reached the conclusion that the order of the WatchCommittee was voidable and not a nullity. He examined thequestion as to the nature of the relief that the partyaggrieved (Ridge) would apply for, which would be that thedecision was invalid and of no effect and null and void.Their Lordships entirely agree with that and with theconclusions which he drew from it, namely that if the deci-sion is challenged by the person aggrieved on the groundsthat the principle (audi alteram partem) has not been obeyed,he is entitled to claim that as against him it is void ab initioand has never been of any effect. But it cannot possibly beright in the type of case which their Lordships are consider-ing to suppose that if challenged successfully by the personentitled to avoid the Order yet nevertheless it has somelimited effect even against him until set aside by a Courtof competent jurisdiction. While in this case their Lordshipshave no doubt that in an action by the Council the Courtshould have held that the Order was void ab initio andnever had any effect, that is quite a different matter fromsaying that the Order was a nullity of which advantagecould be taken by any other person having a legitimateinterest in the matter. ’’
On the facts that have transpired in the instant case, it is clearthat no summons had been served either personally or by meansof substituted service on the 3rd respondent who was the defen-dant in the action for ejectment in the Court of Requests; theorder for ejectment made by the Commissioner of Requests isvoid ab initio ; no material was placed by the petitioner beforethe Commissioner of Requests or before the Asr'stant Commis-sioner of National Housing or even before us sufficient to raisea plea of estoppel against the 3rd respondent; indeed the factsshow that the 3rd respondent far from waiving the objection tothe validity of the order of the Commissioner of Requests oracquiescing in it, at the first available opportunity attacked theorder on the ground of non-service of summons ; the order of theCommissioner of Requests setting aside his order of ejectmentproceeded—though he did not spell it out in so many words—onthe basis that the order was void ab initio and not on the basis
* (7004) A. o. 40.
WUESTJNDERA, J.—TiOekeraine v. Inspector of Police, Petiah
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that events subsequent to the order or supervening circumstancesrendered it void.
For the reasons stated above I am of opinion that the AssistantCommissioner of National Housing made no error of law in hold-ing that the ex parte order of ejectment on the basis of which the3rd respondent was ejected was the order of a Court not compe-tent to make it. This application accordingly fails. I would dismissit with costs payable to the 2nd and 3rd respondents.
Tittawella, J.—I agree.
WalpitAj J.—I agree.
Application dismissed.