1954 Present: Fernando A.J.

W. L. A. DEP et al., Petitioners, and P. NAGARATNAM,
Respondent

S. C. 249-Application in Revision in
C. R. Colombo, 32,445

Jurisdiction-Court acting beyond its powers-Consent of parties-Validity of compromise-Sent Restriction Act, No. 29 of 1948, s. 13.

Although parties cannot by agreement give the Courts jurisdiction which the Legislature has enacted that they are not to have, nevertheless a compromise after action which is advantageous to a party and secured to him by a decree subsequently entered of consent is not void as offending the prohibition against waiver. A sub-tenant, therefore, who, after a decree has been entered against the tenant, consents to be bound by it upon conditions advantageous to himself and embodied in the decree by adjustment, cannot subsequently resist enforcement of the decree on the ground that it is invalid for lack of juris, diction. The sub-tenant, in such a case, forfeits by waiver the protection of section 13 of the Rent Restriction Act.

APPLICATION to revise an order of the Court of Requests, Colombo.

L. C. Weeramantry, for the 2nd, 3rd and 4th defendants petitioners.

P. Somatilakam, for the plaintiff respondent.

Cur. adv. vult.

July 27, 1954. FERNANDO A.J.-

This is an application in revision in respect of an order of the learned Commissioner of Requests directing the issue of writ for the ejectment of the petitioners from certain residential premises in the city of Colombo. The plaintiff respondent had in 1951 instituted an action for the ejectment of his tenant one B. W. Nicholas on the ground that the latter had sub-let the premises (without plaintiff's consent) in contravention of s. 9 of the Rent Restriction Act to the present petitioners who however were not made parties to the action. The learned Commissioner dismissed that action on the ground that the sub-letting was not proved, but on appeal against his order a decree was entered by this Court for the ejectment of Nicholas. When the plaintiff sought to enforce that decree he was resisted by the present petitioners, and after some inquiry into their objections, a settlement was arrived at in June 1952 by which the petitioners agreed to be bound by the decree and were permitted to remain in occupation paying damages for each month, and by which writ of ejectment was not to issue until 31st December 1953. The decree was adjusted in terms of the settlement, which was honoured by the plaintiff during its period of operation. On 31st December 1953 (when the sands had all but run out), the petitioners moved for a stay of execution of the decree. The learned Commissioner on 9th April 1954, made order refusing the stay of execution and allowing the issue of writ, and the present application is for the revision of that order.

Counsel for the petitioners makes the following submissions in support of his application :-
1. The decree entered by this Court was a nullity for the reason that s. 13 of the Rent Restriction Act had the effect, on the facts of the case, of depriving this Court of jurisdiction to enter decree for the ejectment of Nicholas, and the Commissioner should not therefore have issued writ in execution of that decree. (It is unnecessary to set out the facts on which this contention is based.)

2. The decree being a nullity, the subsequent adjustment in terms of the settlement of June 1952 was itself a nullity and not binding on the petitioners.

3. In consenting that writ may be issued after December 1953, the petitioners had waived the protection of s. 13 of the Rent Restriction Act, but that protection could not have been effectively waived, even by consent.

In view of the opinion I have formed upon the last of these submissions, it is unnecessary to decide the interesting and perhaps difficult questions which arise upon Counsel's other propositions, even if there be substance in them.

Counsel relied in the main on the