Kurukkal v. KurukkaltSamarukoon. < J.l
NIRMALA DE MEL
SENEVIRATNE AND OTHERS
SUPREME COURT .
SHARVANANDA, J.. RATWATrE. J.. AND VICTOR PERERA. J.
S.C. 8/81, C.A.'-923/7?
JUNE 28 AND JULY 1, Id82.
Appeal – Supreme Court Rules 16 and 35 – Lacuna – Substitution on death ofpetitioner after grant of leave to appeal hut before lodging appeal -"InterpretationOrdinance, section 8(1)- Computation of time – Evidence Ordinance, section-iW.
One Mrs. Annie Jayasuriya was the landlady and Attorney for the otherco-owners of premises No. 382, 384 and 386 Main Stre&t. Panadura. Her'rfenant7/as one"Pau!us who carried on a pharmacy and grocery'business on the aforesaid
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premises. Paulus sold the business to the petitioner-respondent and petitioner-res-pondent went into occupation .oh 21.10.71. Annie Jayasunva refused to accepthim as tenant and complained to the Police. But petitioner-respondent stayedon and obtained an order from the Rent Board on 9.9.72 that he was the tenant.On appeal by Mrs. Annie Jayasuriya the Board of Review set aside the order,of the Rent Board. The petitioner-respondent thereupon applied for a Writ ofCertiorari claiming there was an error of law on face of the record.
Annie Jayasuriya died on 26.4.76 and Mrs. Cynthia de Mel. her executrix wasmade respondent. Cynthia de Mel died on '28.1.81. Miss Nirmala de Mel soleheir to Cynthia de Mel and sole heir to 1/6 share of premises owned by AnnieJayasuriya applied to be substituted on 16.2.81 and also filed petition of appealpraying that the order of the Court of Appeal dated 18.1-2.80 be set aside.
The petitioner-respondent made a preliminary objection stating that Nirmaja deMel had no status to file appeal before the Order of Court to substitute her'and also that the appeal was out of time.
That though the petition of Appeal was filed by the substituted respondentpetitioner prior to being ordered to be substituted such tiling should, becausethere was a lacuna in the Supreme Court Rules, be regarded as regular.
That the petition of Appeal filed on Monday the next working day waswithin time.
That the burden to prove that tenancy with Paulus had ceased and that histenancy was accepted was on the tenant who was asserting it.
APPEAL from judgment of the Court of Appeal.
H.L. de Silva, S.A.. with M.Y.M. Fail for the substituted-respondent-appel-lant.
K. Shinya with Kithsiri Gunaratne, Miss. S.M. Seneviratnc and Saliya Mathewfor the petitioner-respondent.
August 2. 1982.
The petitioner-respondent made an application to the Rent Board.Panadura, to have the authorised rent of premises bearing Nos. 382.384, 386 & 388, Main Street, Panadura, determined and for thegrant of a certificate of tenancy under section 35 of the Rent Act.He made one Mrs. Annie Jayasuriya, the landlady and Attorney forall co-owners of the aforesaid premises, respondent to the application.The Rent Board by its order dated 9th September, 1972 held thatthe petitioner-respondent was the tenant of Mrs. Jayasuriya anddirected a certificate in terms of section 35(2) of the Rent Act No.7 of 1972 to be issued to him. Mrs. Jayasuriya appealed against the
SC'Mir mala De Mel v. Senevtralne and Others (Sharvananiht, J)571
said order to the Board of Review established under section 40 otthe Rent Act. The latter, by its decision dated 13th September, 1973 -set aside the order of the Rent Board of Panadura. The petitioner-respondent, thereupQn. made an application for the issue of a Writof Certiorari quashing the decision of the Board of Review, on theground that there was an error of law on the “face of the record."Whilst the said proceedings No. 923/73 were pending in the thenSupreme Court, Mrs. Annie Jayasuriya, who was the 4th respondentto.the said proceedings died on the 26th of April 1976. Thereafteron <an application for substitution by the petitioner-respondent, M/s.Neville E.S. Fernando, Ronald de Mel and Terrance Fernando weresubstituted as added respondents in the room of the, deceased Mrs.Annie Jayasuriya. In addition Mrs. Amabel Cynthia de Mel wasmade a respondent as an executrix of the premises in suit after Mrs.Jayasuriya’s death.:i '
The Court of Appeal by its order dated 18.12.1980 allowed theWrit and made order quashing the decision of the Rent Board ofReview dated 13th September 1973’ on the ground that there Vvasan error on the “face of the record” in the decision of the Boardof Review. On 15.1.81 the Court of Appeal granted leave to appe'alto this Court, to the substituted-respondent to appeal against itsorder dated 18.12.80. On the 28th January 1981 Mrs. Amabel Cyiithiade Mel, 4th substituted respondent-petitioner died. Thereupon MissNirmala de Mel, claiming to be the sole heir to 1/6 share of thepremises in suit owned by the said Mrs. Jayasuriya and.as the soleheir to late Mrs. Cynthia de Mel the 4th substituted respondentpetitioner and as the Attorney representing the co-owners of thepremises in suit, applied to this Court, on 16.2.81 to be substitutedin the room of the substituted respondent-petitioner and also filedon that date, namely 16.2.81, petition of appeal praying that theorder of the Court of Appeal dated 18.12.80 be set aside.
By its order dated 20th November 1981 this Court made orderthat Miss Nirmala de Mel be substituted in place of the late Mrs.Jayasuriya and reserved to the petitioner-respondent the right to takein due course his objection that the appeal was out of tirpe.
At the hearing of the appeal preliminary objectjop^as. taken ,byCounsel for the petitioner-respondent that:-
a. The appeal was not properly constituted and. was irregularas the petition of appeal was filed by Miss Nirmala deMel, the substituted respondent-appellant, along with her
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application for substitution, prior to order being made bythis Court substituting her. It was contended that thesubstituted-respondent-appellant had no status to file thepetition of appeal dated 16.2.81, prior to any order beingmade by this Court substituting her as a legal representative,b. In any event that appeal was filed out of time, in breachof . rule 35 of the Supreme Court Rules of 1978 whichprovides that “where a Court of Appeal grants leave toappeal, an appeal to the Supreme Court shall be madewithin 30 days of the delivery of the judgment grantingsuch leave.”
In this case leave was granted on 15.1.81 and the petition of appealwas filed .on 16.2.81.
Rule 16 of the Supreme Court Rules provides for substitutionbeing made “where at any time after the lodging of an applicationfor special leave to appeal, the record becomes defective by reasonof the deatht.or change of status of a petitioner to an application.”And Rule 34:provides.for substitution where at any time after fodgingof an appeal the record becomes defective for similar reasons. Thereappears to be a lacuna, in the rules for the case where at any timeafter leave being granted by the Court of Appeal to the SupremeCourt the. applicant. dies before an appeal to the Supreme Courtcould be lodged, within the period stipulated by Rule 35.
Counsel contended that "according to Rule 35, the petition of appealshould have been filed latest on 14th February 1981, which fell ona Saturday, a day bn which the office was clo$ed. In this connexionsection 8(1) of the Interpretation Ordinance embodies a relevant ruleof interpretation. It states that –
■ ' “Where a limited time from any date or from the happeningof any event is appointed or allowed by any written law forthe doing of any act or taking proceedings in a Court or officeand the last day of the, lijnited time is a day on which theCourt or office is closed, then the act or proceedings shall beconstrued as done or taken in due time if it is done or takenon the next day thereafter on which theCourt or office is open. ”
On the application of. this rule of interpretation it would appearthat the petition of appeal filed on Monday the 16th February 1981,which was the next working day was within time.
SCNirmala De Mel v. Senevirainr and Others ISliarvananda, J )573
In my view the substituted-respondent-appellant has taken all stepswjthin her power to perfect her appeal and to conform to the law.Justice requires that she shall not suffer because of a lacuna in theSupreme Court Rules. Though the petition of appeal was filed bythe substituted-respondent-appellant prior to her being ordered to besubstituted, such .filing should, in the circumstances, be regarded,nunc pro tunc, as regular.
The preliminary objections raised by Counsel for the petitionerrespondent are therefore overruled.
At all material times, prior to the petitioner coming into thepicture, one Paulus was admittedly the tenant of the premises payinga monthly rent of Rs. 200/-, under the deceased Mrs. Annie Jayasuriya.The said Paulus was carrying on the business of pharmacy andgroceries under the name and style of ‘Victory Pharmacy' in the saidpremises Nos. 382, 384, 386, 388, Panadura. The petitioner-respondentpurchased the business from Paulus and went into occupation of thepremises on 21.10.71. It is admitted that he went into occupation ofthe. premises without any prior agreement with the landlady Mrs.Jayasuriya. When the landlady became aware that the petitioner-res-pondent had gone into occupation of the premises she objected tohis doing so and made a complaint to the Police on the 29th October1971. According to the petitioner-respondent he had subsequentlydiscussed with her the purchase of the property. When his negotiationsfailed, he had negotiations with her about the tenancy. Petitionerrespondent stated that the landlady only wanted the rent of Rs. 200/-,per month be paid in cash to her, and that he agreed and paid forthe month of October. He subsequently paid the rent for the monthsof November, December and January, He produced his counterfoilsfrom his cheque book to show that he had cashed cheques for Rs.200/- and paid the. rent io Mrs. Jayasuriya. He produced the cashbook and ledger of his business where entries had been made forthe payment of rent for the premises to Mrs. Jayasuriya. Accordingto the petitioner-respondent, as Mrs. Jayasuriya wrongly refused toaccept rent for February 1972 thereafter those rents were depositedin the Urban Council, Panadura. Mrs. Jayasuriya has denied thesepayments to her. According to her she never received any paymentof rent from the petitioner-respondent and she has not accepted himas her tenant. Paulus continued to be her tenant of the premiseseven after, the sale of his business to the petitioner-respondent. Thepetitioner did not produce any receipts from Mrs. Jayasuriya forpayment of any rent, nor any document acknowledging him as her
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tenant. On hi^ own showing no advance rent was demanded by Mrs.Jayastiriya, nor was paid to her. According to him when the negotiationsfor purchase failed the landlady did not ask for any enhanced rentbut was satisfied with the sum of Rs. 200/- as monthly rent as paidby Paulus earlier. Even though'she had originally objected to thepetitioner’s occupation. of the premises without her consent and hadeven made a complaint to the Police, if is strange that he had notchosen to get any writing from her to secure his tenancy.
Mrs. Jayasuriya’s case is th^t Paulus continued to be the tenantand was paying that rent to her. .She produced counterfoils of receiptsfor payments of rent for the relevant njontjts by Paulus. It wassuggested to her that after the sale of hjs business to the petitioner-respondent, Paulus could not have jt^jd .any interest in paying rentfor the premises where the business has,.been carried on. Everythingdepended on the arrangement between the petitioner and Paulus andwhat assurance Paulus gave to petitioner about the tenure oif thepremises. Mrs. Jayasuriya had told, the Board that she was not callingPaulus as a witness for her to corroborate what she said, namelythat he continued to be the tenant of the premises. In the state ofthe evidence before the Board the materiality of Paulus’s evidencecannot be over emphasised., It was contended by the petitioner-res-pondent that the Board should draw an adverse inference from thefact that Paulus was not summoned to give evidence by the landlady.It was not explained why he hjmself could' not have summonedPaulus to support him, that he had.ceased to be tenant.
, The. Rent Board speculated,,, in the absence of. any evidence fromPaulus, whether Paulus
“would have paid rent for the premises occupied by ’VictoryPharmacy’, now in thel:occupation.of the applicant when hehad already sold it to Mendis and was getting ready to leavethe Island for good.”
•-*• y* .
and held that it was more probable that Mrs. Jayasuriya acceptedthe petitioner-respondent as her tenant. On appeal, the Board- ofReview commented adversely on the Rent Board’s observation thatthe landlady had hot summoned Paulus to giVe evidence on herbehalf. It stated that there was no burden cast on the appellant'(thelandlady Mrs. Jayasuriya) to prove that there was no tenancy agreementbetween her and the applicant and that the applicant should havesummoned Paulus to substantiate his allegation. The Board of Review
SCNirmala De Mel v. Seneviratne and Others ISharvananda. J.)575
therefore allowed Mrs. Jayasuriya’s appeal. The Court of Appeal hasheld that the most important fact which arose for consideration waswhether the rent had in fact been paid to Mrs. Jayasuriya by Paulusor by the petitioner-respondent. It concluded that
“Having regard to the. respective positions taken by the 4threspondent (Mrs. Jayasuriya) and the petitioner the answer tothe question whether it was Paulus or petitioner who actuallypaid the rent was, if not decisive, at least a very importantconsideration in deciding whether petitioner is a tenant of the4th respondent or not. Thus any presumption to be drawnupon the failure to call Paulus to testify before the Rent Bdardhaving regard to the relevant circumstances, ought to be drawn,if at all against 4th respondent, rather than against the petitioner."
The judgment of the Court of Appeal proceeds that the evidenceshowed that 4th respondent (Mrs. Jayasuriya) was aware at the timeshe was carrying on negotiations with the petitioner-respondent forthe sale of the said premises to him, that it was he who was carryingon business of the said premises and it might therefore have beencontended that it was for her to negative any intention on her partto accept the petitioner as the tenant, “holding that there was anerror in the order of the Board of Review on the ‘face of therecord.’ ” It allowed the application of the petitioner-respondent.
In my view there is no justification for the quashing of the decisionof the Board of Review by the Court of Appeal. It was thepetitioner-respondent who was claiming the relief of a certificate oftenancy, hence it was for him to establish that he was the tenantof the premises on 21st October 1971 without any prior agreementwith the landlady. Apart from his self-serving documents there isnothing to support his oral evidence that having entered into occupationof the premises unlawfully,- he had regularised the occupation byentering into an agreement with the landlady. It was for him toestablish that though he came to occupy the premises without theconsent of Mrs. Jayasuriya, he had subsequently become the tenantof the premises and not for Mrs. Jayasuriya to satisfy the Rent Boardthat she persisted in her intention of not accepting the petitioner asher tenant. He has to prove that Paulus has ceased to be tenantand that he had succeeded him as tenant of the premises. It wasthe case of Mrs. Jayasuriya that Paulus continued to be her tenanteven though he had sold the business to the petitioner-respondent.Section 109 of the Evidence Ordinance provides that when thequestion is whether the persons are landlord and tenant and it has
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been shown that they have been acting as such the burden of proving.that they have ceased to stand to each other in the relationship ison the person who affirms it.
The burden of proof in the circumstances of the case thereforerested on the petitioner-respondent to show that Paulus and Mrs.Jayasuriya, has ceased to stand in the relationship of landlord andtenant arid that though he had originally got into occupation of thepremises without prior arrangement with the landlady of Paulus, hehad 'subsequently regularised his occupation and was. accepted astenant in the place of Paulus by the landlady. In the circumstancesof the case it was for the' petitioner-respondent to have called Pauluswho let him into the premises to support his evidence that Paulushad ceased to be the tenant of the premises.
In my view there was no error in the order of the • Board ofReview to justify its being quashed.
I allow the appeal, and set aside the order of the Court of Appealand restore the order of the Board of Review dated 13th September1973 reversing the decision of the Rent Board.
The petitioner-respondent shall pay the substituted respondent-ap-pellant a sum, of Rs.2,500/- as costs of this appeal and of-theapplication, before the Court of Appeal.
RATWATTE, J, — I agree.
VICTOR PERERA, J. — I agree.
NIRMALA DE MEL v. SENEVIRATNE AND OTHERS