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Present: Akbar J.
SUNDRAM PILLAI o. AMBALAM et al.
' 229—C. R. Colombo, 41,673.
Small tenements—Rule nisi on tenant—Writ of possession against occupier■not served with rule—Ordinance No. 11 of 1882, ss. 3, 5, 6.
Where in proceedings under the Small Tenements Ordinance arule nisi, which had been served on an alleged tenant is madeabsolute, a writ of possession issued in pursuance of the rule is notoperative against an occupier, who was no party to it.
PPEAL from an order of the Commissioner of Requests,Colombo.
H. V. Perera (with N. E. Weerasooria) for landlord-appellant.
A. E. Keuneman, for second respondent.
February 13,1929. Akbar J.—
This appeal raised several questions of law on the constructionof the Small Tenements Ordinance, No. 11 of 1882. I have had thebenefit of a full and able argument by Counsel on both sides andnow proceed to give my opinion in the case.
The appellant, as landlord of No. 120, Sea street, proceeded,under section 3 of the Ordinance, against his alleged tenant, MuthuAlague Ambalam. Rule nisi was issued, and it was made absoluteon March 17,1928. Thereupon the Court issued writ of possessionto the Fiscal to deliver possession of the premises to the appellant,but as the second respondent refused to vacate the premises, thematter was reported to Court and was inquired into on July 17,1928. The second respondent filed an affidavit alleging that thepremises in question formed a temple and that he was the officiatingpriest and had been in possession for upwards of twelve years.He denied that he had paid any rent, and claimed title in his ownright. The Commissioner heard evidence and held that the roomwas a Hindu temple, and that the second respondent had been inpossession. He therefore refused to let the writ operate againstthe second respondent as there was no rule issued against him.
It is contended by Mr. Perera, and he quoted a case reportedin 2 Brown's Reports 76 as a case in point, that the only remedyopen to a person in the position of the second respondent is toproceed under section 6 of the Ordinance, that is to say, he is boundto give up possession under the writ although hewasno party to therule, and that the only way in which he can stop the operation of
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the writ was to give a bond with two securities, in such sum as theCourt may order, for the due payment of the rent already due andwhich may become due, and the probable cost of an action whichhe was bound to sue out, within two months of the date of the bond.
If the argument of the appellant is given effect to, it will meanthis, namely, that in the case of a house which may be rented outat Rs. 20 or less per month, two persons, acting in collusion todefraud the owner and occupier of the house, can start proceedingsunder the Ordinance. On a Re. 1 stamp proceedings can bestarted by the bogus landlord against the alleged tenant, therewill be a rule nisi and, of course, the rule will be made absoluteon the non-appearance of the tenant. According to the appellant’sCounsel’s contention, a writ of possession will empower the Fiscalto eject the owner or occupier even though he was not a party tothese proceedings, and the only manner in which he can stayejectment is to give a bond with two securities, upon the termsmentioned in section 6 of the Ordinance, and to bring an action asplaintiff in which the whole question of title will have to be provedby him. It is clear, therefore, that it will not be just to give effectto such a contention, unless the plain words of the Ordinancedirect me to do so. It is true from certain words in section 3 of theOrdinance and from certain remarks of Mr. Justice Lawrie in thecase I have referred to, that the writ of possession given to theFiscal will appear to empower him “ to enter upon the tenementwith such assistance as he may deem necessary, and to givepossession accordingly. ” But the opening words of section 3 aresignificant. They are as follows:—“ Whenever the term or interestin any tenement shall have ended or shall have been duly deter-mined by legal notice to quit, and such tenant, or (if such tenantdo not actually occupy the premises or occupy only part thereof)any person by whom the same or any part thereof shall be thenactually occupied, shall neglect or refuse to quit and deliver uppossession of the tenement, or of such part thereof, it shall belawful for the landlord to file, &c. ” From these words it is clearthat if there is a person in the position of the second respondentin this case who claims to be the owner of the premises and whodenies the tenancy, these proceedings are not operative againsthim unless he has been served with a rule nisi and has had theopportunity of contesting the plaintiff’s claim' to the tenancy asagainst himself. Even here only the word “ tenant ” occurs insection 5 and there is no reference to the occupier, but section 3makes it clear that the rule nisi is not to be made absolute unless ithas been served on the tenant or occupier and the tenant or occupierfails to appear, on the due date, or appearing does not show goodand valid cause to the contrary. Therefore, on a reading of thewhole Ordinance, it seems to me that when the Fiscal reported
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that the respondent refused to quit, all the proceedings by thelandlord against his alleged tenant became inoperative againstthe occupier so claiming. If the landlord’s case is that the secondrespondent is not acting bona fide but is a nominee of the tenant,he should have started proceedings against this occupier de novounder section 3 by issuing the rule nisi against such person.
If I were to hold that the writ empowered the Fiscal to clearout every person from the premises in the position of the secondrespondent in this case, it would lead to the very great abuse whichI have indicated above. In my opinion section 6 refers only to aperson who has been served with a rule nisi and who has failed toappear on the returnable date, or has appeared but failed to satisfythe Court that the rule nisi should not be made absolute. It issignificant that section 6 refers, not only to the occupier, but evento the tenant. It is also clear from the form of the bond No. 5in the schedule to the Ordinance which is to be followed (seesection 9) that section 6 appears to give a double remedy tothe tenant in' the case, or the occupier to contest the right of thelandlord to eject him.
The proceedings on the returnable date cannot but be summary,and more or less akin to a claim inquiry under the Civil ProcedureCode. Section 6 gives a further right to the defeated tenant oroccupier in the summary proceedings to assert his right in thefullest possible manner if he gives proper security.
As regards the remarks of Mr. Justice Lawrie in 2 Brown'sReports 76, they were obiter, because the main finding of the SupremeCourt in that case was that proceedings taken by a petitionerunder section 325 et seq. of the Civil Procedure Code were mis-conceived in a case under Ordinance No. 11 of 1882.
I would therefore, for the reasons given by me, dismiss theappeal, but I would make no order as to the costs of this appeal,owing to the Uncertainty of the law on the point and the absenceof definite authorities.
SUNDRAM PILLAI v. AMBALAM et al