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Present: Wood Renton C.J. and De Sampayo J.
HEWAWITARANA u. MARIKAR.
253—G. R. Colombo, 51,265
Jurisdiction—Actionin Court of Requests for. rent and ejectment—
A alleging that £ was his tenant, at a monthly rental of Bs. 310,and that the tenancy had terminated by notice, brought this actionfor ejectmentand damages atBs. 300a month from theexpiration
of the tenancy until restoration to possession (waiving the Bs. 10with a view to conferring jurisdiction on the Coart of Bequests).
Held, that the Court of Bequests had no jurisdiction.
“The value of the right of possession involved is the rent orprofitwhichmight be dueif themonthly tenancycontinued.
Ifit were 'a merequestionof damages only,a plaintiff
might, of course, waive any portion, but where the damages are ameasure of the value of the right of possession which the Court isto enforce, a waiver cannot be allowed."
Held, further, that continuing damages in excess of the juris-dictionof aCourt of Bequests cannotbe claimed or recovered in
an action of this kind.
HE plaintiff alleging that the defendant was his tenant frommonth to month at a rental of Rs. 310 per mensem sued him
in ejectment and for damages at Rs. 300 per month- The defendantstated that his tenancy had terminated. The following issues wereframed: —
Was defendant’s tenancy determined on November 12 as stated in>the answer?
Has this Court jurisdiction?
Was defendant noticed to quit?
i (1916) 19 N. L. R. ISO.
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1916.After trial judgment was entered for plaintiff as .prayed for.
Hewawita-The defendant appealed.
MarikarHayley, for defendant, appellant.
A. St. V. Jayewardene (with him B. F. de Silva), for plaintiff,respondent.
Cur. adv. vult.
October 18, 1916. Wood Renton C.J.—
This case has been referred by my brother De Sampayo to a Benchof two Judges for the consideration of an important point of practice.The plaintiff, who sues as the executor of the late Edmund Hewa-witarana, alleges that the defendant was his testator's tenant ofcertain premises in Fourth Cross street, Pettah, at a monthlyrental of Rs. 810; that the tenancy had terminated; and that thedefendant, although duly served with notice to quit, had failed todo so. He claims accordingly the ejectment of the defendant fromthe possession of the premises, and damages at Rs. 300 a month fromthe date fixed in the notice to quit until such possession shall havebeen restored to him. The difference between the monthly rentaland the damages claimed was abandoned by the plaintiff with a- view to conferring jurisdiction on the Court of Requests. Thedefendant denied the tenancy, alleging that the tenants were thirdparties, with whom he has not in fact anything to do. The learnedCommissioner of Requests held that, as the plaintiff had waived theexcess of his claim, he had jurisdiction to dispose of the case, and,after hearing evidence, he gave judgment in the plaintiff’s favouras prayed for, with cost. The defendant appeals.
Under section 77 of the Courts Ordinance, as re-enacted bysection 4 of the Courts of Requests Ordinance, 1895,1 Courts ofRequests have jurisdiction to entertain actions in which the title to,or- interest in, or the right to possession of, any land shall be indispute, “ provided that the value of the land or the particularshare, right, or interest in dispute shall not exceed Rs. 300." It isclear from this enactment that the value of the land is not the soletest of jurisdiction. The Court of Requests will be competent toentertain the action, if the interest which it is brought to ascertaindoes not exceed the statutory limit of Rs. 300. It is no doubt opento a plaintiff, whose claim sounds in damages alone, to waive anyportion of it in excess of the jurisdiction of the Court of Requests,so as to make that Court competent to entertain it. But I do riotthink that where, as here, he sets up and asks the Court to declarehi« right to possession of a land, and where the value of his interestin that possession exceeds Rs. 300, he can by abandoning his claim'to the excess bring it within the jurisdiction of a Court of Requests.
i No. 12 of 1895.
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The fact that the defendant did not directly dispute the plaintiff's 1916;title is, in my opinion, immaterial, where the circumstances are such . y?OODas to necessitate the claim to possession being put forward and Rehton C.J.
enforced. This disposes of the ground on which the learned Com-missioner of Bequests dealt with this case. But now that I havehad the opportunity, after full argument, of reconsidering my ownjudgment in the case of Cassim v. Canhait,1 I have come to theconclusion that it was wrong. I there held that in actions of thiskind claims of damages are merely subsidiary and incidental headsof relief, which ought not to be taken into account in considering*he question of jurisdiction. My attention was not called to thej.act that in Thaynappa Chetty v. Packir Bawa2 a decision which wehav' iscertained by reference to the Supreme Court Minutes to havebeen that of a Full Court, even interest and a fortiori damages wereheld to be not merely incidental to the cause of action like costs,hut part of the cause of action itself. I would add that I do notthink that continuing damages in excess of the jurisdiction of aCourt of Bequests can be claimed or recovered in an action of thiskind.
On these grounds I would set aside the decree of the Court ofBequests, and direct decree to be entered up dismissing the plaintiff’saction, with the costs of the action and the appeal.
De Sampayo J.—
I am of the same opinion. The plaintiff would be entitled tobring this action in the Court of Bequests if his “ right to possessionof the land did not exceed Bs. 300 in value, as provided in section77 of the Courts Ordinance. How is a landlord’s right to possessionto be valued when the tenancy is from month to month, and hasterminated by notice, and the tenant stiil over-holds? In Vengada-salem Chetty v. Superamaniam Chetty 3 Bonser C.J. observed:“ It
seems to me that it (i.e. Mudiyanse v. Rahman 4) rightly decided thatin a case like this the matter in dispute between the parties is thevalue of the premises for the month during which the defendantsays that he is entitled to hold the premises.” The deciding factoraccordingly appears to be the period during which the tenant seeks,either by denial of the tenancy or of the notice, to keep the premisesfrom the landlord. The plaintiff in this action evidently put his caseon the same footing, for he claimed damages at the rate of Bs. 300a month from the date of the expiration of the tenancy. Thus, thevalue of the right of possession involved is the rent or profit whichmight be due if the monthly tenancy continued. Can the plaintiffwaive any portion of this rent or profit in order to bring the actionin the Court of Bequests? The Commissioner has held that hecan. If it were a mere question of damages only, a plaintiff might,
(1906) 3 Bal. 20.
(1866) Ram. 1963-1868, 216.
3 2 Browne 391.
* (1896) 2 N. L. R. 235.
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1916. of course, waive any portion, but where the damages are a measureDb Sampayovalue of the right of possession which the Court is to enforce,
J. a waiver cannot, I think, be allowed. On the further question as toHewaurita- continuing damages also I agree with the opinion of my Lord themnav. Chief Justice.
HEWAWITARANA v. MARIKAR