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GOONEWARDANA v. RAJAPAKSE et al.
D. 0., Colombo, letter C.
Right of letsee to the action rei vindicatio or to a poueuory action at againttleuor—Civil Procedure — Motion for tummone—Motion to forward catein appeal.
A notarial lease is a pro tanto alienation, and gives the leasee daringhis term the legal remedies of an owner and possessor.
When a plaint is accepted by the court, there is no necessity for aseparate motion for summons, nor is a motion to forward the case inappeal necessary after the filing of the petition of appeal.
rpHE facts of the ease are sufficiently stated in the judgment of-1- the Supr^pae Court.
Sampayo, for appellant.
8th October, 1895. Bonsbb, C.J.—
This is an action by a lessee of immovable property against histwo co-lessors, and another, who, he complains, have wrongfullyousted him. It appears from the plaint that the lease was madeVon. I.2 F
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1886. by a notarial inatnunent duly registered; that the plaintiff paidBoson, C.J. ^ advance the rent for the whole term of five years and enteredinto the occupation of the property, and that having been in snchoccupation for more than a year, he was unlawfully ejected bythe lessor and the other defendant, who has a lease of the sameproperty from the lessors subsequent in date to the plaintiff’slease. He claims restoration to possession and damages.
The Acting District Judge of Colombo, Mr. Templer, rejectedthe plaint, on the ground that “ the statement in the plaint is“ barred by a positive rule of law, that a tenant cannot sue his“ landlord in ejectment; and that his remedy iB for a breach of“ covenant for quiet enjoyment,” in other words, that his onlyremedy is an action for damages. It is not stated where thispositive rule of law is to be found, and I do not believe that anysuch exists.
It appears that, according to the Roman Law, where a land orhouse was let, the “conductor,” who in the case of land wastermed colonus, and in the case of a house inquilinus, wasnot regarded as possessing the demised premises, for he did notclaim to hold them ut dominus, which was of the essence ofpossession, so that the lessor was still the possessor, notwith-standing the letting.
If, therefore, the tenant were ejected by a third person, he wasnot entitled to the action rei vindicatio, nor to the ordinarypossessory interdicts. But by the Roman-Dutch Law, where alease was for a substantial period, the tenant had the right to suehis lessor to compel him to give up the use of the premises duringthe term, and was not restricted to an action for damages forbreach of contract. Neque dulitandum videtur, quin, locationein decennium, vicennium, longiusve tempus contractu, locator acheredes ejus personali actions conducti compellendi sint ad usumconductori relinquendum integro longo out longissimo tempore incontractu definite ( Voet, XIX,, 2, section J).
Further, such lessees were, by Roman-Dutch Law, allowed toassert their right to the use of the land during the term, evenagainst the purchaser, to whom their landlord had sold theproperty after granting the lease, although by the Roman Lawthe purchaser was not bound by the lease, provided, however,that the leases were by deed (Voet, XIX., sections 1 and 2).
The Legislature of this Island has still further recognized therights of lessees. Ordinance No. 7 of 1840 makes every lease ofimmovable property (other than a lease at will or for a periodnot exceeding one month) void, unless made by a notarial instru-ment. Ordinance No. 8 of 1863 makes it compulsory to register all
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each leases, and punishes non-registration with loss of priority. 1896.Both Ordinances placed leases in the same class as conveyances witubbs j.and other alienations, and it is now impossible to treat a lesseeunder a notarial instrument, however short be the term, as aRoman colonus or inquilinus.
In my opinion we ought to regard a notarial lease as a pro tantoalienation, and we ought to give the lessee, under such a lease,during his term, the legal remedies of an owner and possessor(see D. 0; Colombo, 55,552, Vanderstraaten, p. 283; and Per era v.
Sobana, 6, S. C. C. 61, where the distinction between a modernlease and a Roman colonus or inquilinus is recognized).
For these reasons I am of opinion that the plaint discloses agood cause of action.
I wish to add that the record shows that, even at this early stageof the action, at least two unnecessary motions have been made.
At page 11 there is a motion paper containing a motion by theplaintiff’s proctor, that summons should issue to the defendants.
This is unnecessary, for section 55 of the Civil Procedure Codemakes it the duty of the Court to issue summons if it accepts theplaint. Again, at page 12£ there is another motion paper con-taining a motion, that the petition of appeal be forwarded to theSupreme Court, but it was the duty of the District Court to forwardit without any special motion for that purpose. These motionsserve no object. They only mean expense to the parties, andencumber the record with unnecessary matter. The costs of thesemotions should not be allowed in taxation either between partyand party, or between proctor and client.
I readily subscribe to My Lord’s judgment. Lessees for termsof years under instruments duly executed and signed should havetheir tenure assured to them as if they.had the cimlis possessio ofthe civil law.
The possessory action should be open to them against whosoeverejects them by force, be he stranger or landlord, or one claimingunder the landlord. Such leases may be regarded as sales forthe term of the jus possidendi, which the nature of the contractrequires.
Motions for the issue of summonses on the presentment of aplaint are mere waste of time and paper, and even the Code doesnot say they are necessary.
The Code enacts that motions are to be.made only in mattersincidental to an action in the course of it, and not when step isbeing taken in the regular procedure (see section 91).
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The issue of a summons is a step in the regular procedure’r. which the Court has to take.
There was again no occasion to move that the petition of appealshould be forwarded without security. It was an ex parte ordernot requiring security.
The costs of these motions should not be allowed in taxation.
GOONEWARDANA v. RAJAPAKSE et al