KUSUMALATHA AND ANOTHER

Vs.

SWARNAKANTHI AND OTHERS

COURT OF APPEAL
WICKRAMASINGHE, J.
SAMAYAWARDHENA, J.
CA/PHC/78/2005 WITH CA/PHC/78A/2005
HC KURUNAGALA HCR/133/2003
MC KULIYAPITIYA 6971/66

Primary Courts' Procedure Act, No. 44 of 1979, sections 66(6), 66(7), 68(3)-Necessity to induce the parties to arrive at a settlement-Objection to jurisdiction-Judicature Act, No. 2 of 1978, section 39

The petitioners filed an application in the Magistrate's Court under section 66(1)(b) of the Primary Courts' Procedure Act, No. 44 of 1979, against the respondents seeking an order in terms of section 68(3) to restore them in possession on the basis that they had been forcibly dispossessed by the respondents within two months prior to the filing of the application. After inquiry, the Magistrate's Court allowed the application but, in revision, the High Court, following the judgment in Ali v. Abdeen [2001] 1 Sri LR 413, set it aside on the premise that the Magistrate had not endeavoured to induce the parties to arrive at a settlement before the matter was fixed for inquiry as required by section 66(6) of the Primary Courts' Procedure Act. Both parties appealed to the Court of Appeal.

Held:

1. There is no dispute that the Magistrate had jurisdiction over the subject to make a valid order but the question was whether he invoked it in the right way. If a party to a case asserts that the Magistrate invoked jurisdiction in a wrong way, such party should have objected to it at that time. A party cannot keep silent allowing the court to exercise jurisdiction in a wrong way and challenge the same later when the order is against him. In such a situation, the objection to jurisdiction is deemed to have been waived or the wrong invocation of jurisdiction to have been acquiesced.

2. The situation is different if the court had total or patent want of jurisdiction over the subject matter, in which event, the objection can be taken up at any time including for the first time in appeal,

and, if upheld, all previous proceedings become a nullity as there was coram non judice. Nullity cannot be converted into validity by acquiescence or waiver.

3. The respondents did not raise any objection before the Magistrate's Court in respect of fixing the case for inquiry without the parties having been induced to settle the matter. They cannot raise that issue in the High Court for the first time.

4. The judgment in Ali v. Abdeen [2001) 1 Sri LR 413 does not represent the correct position of the law.

Cases referred to:

1 . Ali v. Abdeen [2001] 1 Sri LR 413
2. Ramalingam v. Thangarajah [1982) 2 Sri LR 693 at 701-703
3. OIC, Police Station, Kotahena v. Dewasinghe [1983] 2 Sri LR 149
4. Navaratnasingham v. Arumugam [1980) 2 Sri LR 1
5. David Appuhamy v. Yasassi Thero [1987] 1 Sri LR 253
6. Jayantha Gunasekera v. Jayatissa Gunasekera [2011] 1 Sri LR 284 at 302
7. Ponniah v. Sheriff (1966) 69 NLR 67

APPEAL from the Judgment of the High Court of Kurunegala.

Manohara De Silva, P.C., with lmalka Abeysinghe for the original Respondents-Petitioners-Appellants in CA (PHC) 78/2005.

R. Wimalarathna for the original Petitioners-Respondents-Appellants in CA (PHC) 78A/2005.

cur. adv. vult.

May 21,2019

SAMAYAWARDHENA, J.

The two petitioners (G.M. Kusumalatha and P.G.D.J. Samarawickrama) filed this application in the Magistrate's Court of Kuliyapitiya under section 66(1)(b) of the Primary Courts' Procedure Act, No. 44 of 1979, making three parties respondents (H.M. Sriya Swarnakanthi, H.M. Piyadasa Gunathilake, W.A. Sudath Vijitha Weerakkody) seeking an order under section 68(3) of the Act to be restored in possession on the premise that they were forcibly dispossessed by the respondents and their agents within two months prior to the filing of the application in Court. After filing

objections and counter objections together with supporting documents, the Court disposed of the inqu