Sri Lanka Law Reports
 2 Sn L. R.
SIRISENA AND OTHERS
SHARVANANDA, A.C.J.. WIMALARATNE. J. AND COLIN THOME. J.
C.A. NO. 95/77 (F).
S.C. NO. 52/82,
M.C. (CIVIL) KANDY NO. 719/RE.
NOVEMBER 2, 1983.
Civil Procedure — Civil Procedure Code. Cap XXV Substitution of parties in aRent and Ejectment Action —Application of section 36(3) of Rent Act No. 7 of1972.
In an action for rent and ejectment the tenant died after institution of the actionand the Defendants-Appellants-Respondents who were his legal representativeswere substituted in his stead. At the trial the learned Magistrate held that thesubstitution was in order and the Defendants-Appellants-Respondents appealedand the Court of Appeal allowed the appeal setting aside the judgment of theMagistrate on the ground that S.36(3) of the Rent Act of 1972 had not beencomplied with. The Plaintiff-Respondent-Appellant appealed.
S. 36 of the Rent Act applies only where a tenant dies before action is institutedagainst him. The question of who takes the tenant's place in a pending suit forthe continuity of the action already instituted should be decided in accordancewith Chapter XXV of the Civil Procedure Code.
Case referred to:
Hensman v. Mary Stephen — 55N.L.R.89APPEAL against an order of the Court of Appeal.
H. L. de Silva, S.A. with Faiz Mustapha for Plaintiff-Respondent-Appellant.
P. Somatillekam for Defendants-Appellants-Respondents.
Cur. adv. vult
November 18. 1 983WIMALARATNE. J.
We made order on 2.11.83 allowing this Appeal and settingaside the Judgment of the Court of Appeal dated 15.10.81 withcosts in both Courts. We now give our reasons.
Francis v. Sirisena and Others (Wimalaratne. J.)
This was an action instituted by the Plaintiff for the ejectmentof the original Defendant P. Sirisena from rent controlledpremises, and for the recovery of arrears of rent and damages.The Plaintiff gave the Defendant notice on 29.4.75 to quit thepremises on or before 31.7..75. This action was thereafterinstituted on 13.8.75. On the summons returnable date, whichwas 3.12.75. a medical certificate was submitted on behalf ofthe Defendant who was given time till 11.2.76 to file answer. TheDefendant died on 19.1 2.75. Thereupon the Plaintiff took stepson 23.6.76 to substitute the legal representatives of thedeceased Defendant, namely the 1st substituted Defendant whois the widow and the 2nd to 5th substituted Defendants who arethe children of the deceased. This step was taken,under section572(5) of the Administration of Justice Law No. 25 of 1975. Thissubstitution was allowed by the learned Magistrate and thesubstituted defendants filed answer in which they took up theposition that as the Plaintiff had not taken steps in terms ofsection 36(3) of the Rent Act. No. 7 of 1972, the substitutionwas invalid, and asked for a dismissal of the action.
Section 36 of the Rent Act is in these terms
"(1) Notwithstanding anything in any other law. thesucceeding provisions of this section shall have effect in theevent of the death of the tenant of any premises. For thepurposes of this sub-section, a person shall be deemed tobe the tenant of any premises notwithstanding that histenancy of such premises has been terminated by the expiryof the notice of the termination of the tenancy given by thelandlord thereof, if at the time of his death he was inoccupation of such premises.
(2 ) Any person who—
in the case of residential premises the annual value ofwhich does not exceed the relevant amount and which hasbeen let prior to the date of commencement of this Act —
Sri Lanka Law Reports
 2 Sri L. R.
is the surviving spouse or child, parent, brother or sisterof the deceased tenant of the premises or was a dependantof the deceased tenant immediately prior to his death ; and
was a member of the household of the deceased tenant(whether in those premises or in any other premises) duringthe whole of the period of three months preceding hisdeath ;
((b) & (c) not relevant for the purposes of this case.] shall,subject to any order of the board as hereinafter provided, bedeemed for the purposes of this Act to be the tenant of thepremises :
The landlord of any premises referred to in subsection (1)shall make application to the board for an order declaringwhich, if any, of the persons who may be deemed to be thetenants under sub-section (2) shall be the person who shallfor the purpose of this Act be deemed to be the tenant of thepremises.
Where an application is made under subsection (3), theboard shall, after notice to all persons who may be deemedto be the tenants under sub-section (2) and after due inquiry,make order declaring which, if any, of such persons shall bethe person who shall for the purposes of this Act be deemedto be the tenant of the premises.
Any person declared under subsection (4) as the personwho shall for the purposes of this Act be deemed to be thetenant of the premises shall be so deemed with effect fromthe first day of the month succeeding that in which the deathof the deceased tenant occurred, and the provisions of thisAct shall apply accordingly".
The learned Magistrate held (a) that the Defendant has been inarrears of rent for three months or more after it had become due,
that there was no proof of the rent so being in arrears on
Francis v. Sirisena and Others (Wimalaratne. J.)
account of the tenant's illness or unemployment and (c) thatsection 36 of the Rent Act had no application in the case of thedeath of a tenant against whom action had already been filed. Heaccordingly entered judgment for the Plaintiff.
The Court of Appeal appears to have been attracted by theargument that on the death of the tenant a new tenancy hadbeen created ; that all the persons who satisfied the conditionsstipulated in section 36(2) are deemed to be the new tenants,and in such a situation it was incumbent on the landlord to haveobtained from the Rent Board an order under subsection (3)declaring which, if any. of those persons shall be the person whoshall for the purposes of the Act be deemed to be the tenant ofthe premises. As the Plaintiff had not taken this step the Court ofAppeal allowed the Appeal, set aside the judgment of theMagistrate and dismissed the Plaintiff's action with costs. TheCourt however granted the Plaintiff leave to appeal to this Court,formulating the following substantial question of law.
"(a) Whether the petitioner was correct in law in substitutingthe next of kin to the deceased tenant who was thedefendant in the action in the District Court; or
(b) Whether the plaintiff should have applied to the RentBoard under Section 36'3) of the Rent Act for adetermination of the person who is deemed to be thetenant.''
The Court of Appeal appears to have misunderstood thepurpose of section 36. The earlier Rent Restriction Act, No. 29 of1948, contained a provision in section 18 which was interpretedin the case of Hensman v. Mary Stephen to mean that when atenant died after notice to quit, it was not open to the survivingspouse of such tenant to continue in occupation as tenant unlessthe spouse had given written notice to the landlord within aspecified short period from which the death occurred, to theeffect that she proposed to continue in occupation as tenant.Many a person who was entitled to continue the tenancy on thedeath of the tenant lost this right by not having given such notice.
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invariably due to ignorance or oversight, especially after abereavement. Section 36 of the Rent Act of 1972 was enacted toremedy that situation. The landlord has no choice but to acceptas tenants all the persons who satisfy the conditions stipulated inS.36(2). because they are deemed to be the tenants from thedate of the death of the original tenant.
But landlords would have innumerable problems in beingsaddled with a large number of persons "deemed to be tenants".One has only to visualise the case of a tenant dying leavingbehind a spouse, five or six children, parents, and perhaps a fewbrothers and sisters who were members of the household of thedeceased during the period of three months before his death.From whom is he to claim the rent ? To whom is he to issue rentreceipts? Which of them is he to recognise as tenant for thepurposes of the Act? It is in order to resolve these difficulties thatsubsection (3) provides the landlord an opportunity of makingapplication to the Rent Board for the purpose of obtaining anorder declaring which of such persons is to be deemed thetenant for the purposes of the Act.
The Board will necessarily take time to make its order whichcan be only after due inquiry and after notice to all persons whomay be deemed to be the tenants under sub-section (3). Anyorder may be canvassed before the Board of Review. All thatprocedure is bound to take considerable time, and the legislaturehas provided in subsection 6 that the landlord shall not beentitled to institute any action or proceedings for ejectment onthe ground that the rent has been in arrears for any periodending on the date on which the Board made order undersubsection 4. This is also a circumstance which supports theview that section 36 contemplates a situation which may arisebefore an action is instituted.
It seems to me. therefore, that section 36 of the Rent Act hasapplication only where a tenant, be he a contractual tenant or astatutory tenant, dies before action is instituted against him, andnot after. Where the tenant dies after action is instituted againsthim, the problem that arises is not a question of substantive law
Francis v. Sirisena and Others fWimalaratne. J.j
but one of procedure, as to who if any takes his place for thepurpose of the continuity of the action already instituted; and fora solution one has to have recourse to Chapter XXV of the CivilProcedure Code which makes provision for the continuation ofactions after the alteration of a party's status. Section 398 (1) ofthe Civil Procedure Code (like section 572(5) of theAdministration of Justice Law) provides that …."in case of thedeath of a sole defendant…. where the right to sue survives, thePlaintiff may make an application to the Court, specifying thename, description and place of abode of any person whom healleges to be the legal representative of the deceased defendant,and whom he desires to be made the defendant in his stead. TheCourt shall thereupon, on being satisfied that there are groundstherefor, enter the name of such representative in the record inthe place of such defendant, and shall issue summons to suchrepresentative to appear on a day to be therein mentioned todefend the action, and the case shall thereupon proceed in thesame manner as if such representative had originally been madea defendant and had been a party to the former proceedings inthe action".
The moment the original tenant was in arrears of rent for thestipulated period a course of action arose to the landlord to suethe tenant for ejectment and recovery of such arrears. On thedeath of the tenant after institution of action, the cause of actionwhich survived could be enforced against the legalrepresentative of the deceased tenant in the same proceedings.The Plaintiff has. therefore, followed the correct procedure mmaking the application for the substitution of the legalrepresentatives of the deceased Defendant and the Court wasright in allowing that application and making the substitution.The Court of Appeal has erred in setting aside the judgment anddecree entered by the learned Magistrate. For these reasons weallow this appeal and set aside the judgment of the Court ofAppeal with costs in both counts.
SHARVANANDA, A.C.J. — I agree
COLIN THOME, J. — I agree
FRANCIS V. SIRISENA AND OTHERS