BADRUN NISA WAZEER
v.VELAYUTHAN AND ANOTHER
COURT OF APPEAL.
PALAKIDNAR, J.. AND SENANAYAKE, J..
C. A. APPLICATION NO. CA 35/90 ; D. C. C0L0M80 No. 4906/RE.
AUGUST 31. 1990.
Execution – Re entry by ejected judgement-debtor within a year and a day-CivilProcedure Code. Section 325 – requirement that complaint of judgement-creditorshould be within one month of ouster.
The time clause in S. 325(1) of the Civil Procedure Code is mandatory. The presentsection enables a judgement-creditor who is dispossessed within one year and oneday of being placed in possession by the fiscal, to complain to Court of the ouster, but hemust do so within one month of the ouster.
Cases referred to:
De Silva V. Bastian 38 NLR 277
Perera V. Aboothahir 37 NLR 163
APPLICATION in revision of. the Order of the District Judge of Colombo.
A. I. M. Hidyahtulla with M. Salman for plaintiff-petitionerM. H. D. Raheem for defendant-respondentS. R. Crosette Thambiah for claimant-respondent.
Cur. adv vult.
October 30, 1990SENANAYAKE, J.
The Plaintiff-Petitioner filed this application of revision in respect of anorder dated 04.01.90 made by the learned District Judge in case No.4906/RE in the District court of Colombo.
The plaintiff-petitioner instituted this action against the defendantrespondent for ejectment from the premises on the ground of arrears ofrent. On 2.7.84 consent judgment was entered in favour of the •plaintiff-petitioner. The defendant-respondent was given three yearstime to deliver vacant possession. If he failed to hand over vacantpossession on or before 30.6.87 writ was to issue without notice.
The Defendant-Respondant's failure to comply resulted in theplaintiff-petitioner applying for writ. The court issued writ and the fiscaldelivered vacant possession of the premises to the Plaintiff-Petitioner on
The Plaintiff-Petitioner in his petition dated 28.08.87 averredthat the defendant-respondent with other members of the family re-entered the premises and dispossessed him. He averred that theDefendant-Respondent has committed contempt of court and alsoprayed for the reissue of writ of possession.
Theplaintiff-petitioner's application was made under Section 325 (1)of the Civil Procedure Code. The relevant portion of the section reads asfollows
' Where the judgment-creditor has been so hindered or ousted *within a period of one year and one day the judgment-creditor may atany time within one month from the date of such resistance orobstruction or hindrance or ouster complain thereof to the court by apetition in which the judgment-debtor and the person if any resistingor obstructing or hindering or ousting shall be named respondents.The court shall thereupon serve a copy of such petition on the partiesnamed therein as respondents and require such respondents to fileobjections if any within such time as they may be directed by court. '
The learned counsel for the plaintiff-petitioner submitted that hispetition was not within the stipulated time and it was not filed within onemonth of the ouster. His submission was that time was not of the2-essence and it was not mandatory to file the petition within one month.He submitted that the words 'May at any time within one month' makethe time limit directory.
I am unable to accept his submission. The question whether aprovision is mandatory has to be determined upon a number ofconsiderations. The basic test by which to determine whether therequirement is essential or not is to consider the consequence of thefailure to follow the said provision. Time is of the essence. It is stipulatedthat the application could be made within one monthfrom the ouster. Itis of material importance that the petition be tendered in court within thestipulated period. The time clause here is mandatory. Its nonobservance will result in the object of the provision being frustrated. Theobject is to conclude the inquiry within the shortest possible time.Section 325 (1) has to be read with 325 (2) (3) and (4). Once thepetition is filed within the stipulated time the court has to put themachinery in motion and the Respondents within 15 days of thepublication of notice will have to file their claim if any setting out theirrights or interest entitling them to possess the property.
Bindra on Interpretation of statutes 7th edition, page 680 states,
• 'The ultimate rule in construing auxiliary verbs like 'may' and 'shall' is todiscover the legislative intent and the words 'may' and 'shall' is notdecisive of discretion or mandates. The use of the words 'May" and"shall' may help the courts in ascertaining the legislative intent withoutgiving to either a controlling or determinating effect. The court, havefurther to consider the subject matter the purpose of the provisions,theobject, intent to be secured by the statute which are of primeimportance as also the actual words employed.
The provisions of Section 325(1) envisage a resistance, hindrance orouster within a period of one year and one day. This spells out the timeperiod during which he could claim relief. If after possession is handedover, he is dispossessed the petitoner can complain to court. This iscoupled with the petitioner's right to have the assistance of the courtprovided his application by way of petition is tendered within thestipulated period. The stipulated period is within one month from thedate of ouster. There cannot be any extension of time ; any extention willcause frustration. I am of the view that time is of the essence and it ismandatory that the petitioner tenders his application within thestipulated time.
The learned counsel for the petitioner relied oh the authority of DeSilva v. Bastian (1). This authority has no application to the instant case,since the present Section 325(1) differs from the earlier section. Thepresent section gives a party who is dispossessed within one year andone day to complain to court within one month of ouster: The earlier lawwas limited in its application. Garvin J- observed in Perera v. Aboothahir
that what was intended in Section 325 was to give relief in suchcases when the fiscal had delivered possession to the judgment-creditorbut had not delivered complete and effectual possession of every part ofthe property.
It is my view that this observation has no application to the presentprovision of Section 325(1) as it stands.
The petitioner had failed to comply with the mandatory time periodstipulated in Section 325(1) of the Civil Procedure Code.
In the circumstances I dismiss the application of the petitioner withcosts.
In. view of the above order C. A. L. A. 4/90 stands dismissed.
PALAKIDNAR, J. – I agree.Application dismissed.
BADRUN NISA WAZEER v. VELAYTHAN AND ANOTHER