Hanaffi v. Nallamma
G. P. S. DE SILVA, CJ,PERERA, J. ANDSHIRANI BANDARANAYAKE, J.S.C. APPEAL NO. 157//96
A. APPEAL NO. 717/91 (F)
C. RATNAPURA 4879/REJUNE 18, 1997OCTOBER 6. 16, 1997.
Landlord and Tenant – Addition of a party – Pleadings and issues – Civil ProcedureCode – S. 146 (2).
The Plaintiff sued the 1st defendant (tenant) for ejectment. As the 1st defendanthad left the Island, summons could not be served on him but was affixed to thepremises. On the summons returnable date the 2nd defendant appeared andclaimed to be the tenant, and applied to be added as a defendant. He wasadded on the order of the court. He filed answer. The plaintiff filed replicationdenying the 2nd defendant's claims and praying for his ejectment. At the trial,issues were raised on behalf of the plaintiff and the 2nd defendant. In the meantime the 1st defendant had died whereupon the court permitted the case to proceedagainst the 2nd defendant in terms of s. 393 of the Civil Procedure Code. Aftertrial the District Judge entered judgment for the plaintiff. It was urged on hehalfof the 2nd defendant that the plaint did not disclose a cause of action againstthe 2nd defendant and that the judgment against him was bad in the absenceof an amended plaint.
There was no reference to the 1st defendant in the issues; and there was noissue as to whether the plaint disclosed a cause of action. Once issues are framedthe case which the court has to hear and determine becomes crystallised inthe issues and the pleadings recede to the background. On the basis of the issuesraised by the parties the crucial issue was whether the 2nd defendant was tenantunder the plaintiff; and that in the light of the issues framed and the evidenceon record the District Court rightly entered judgment for the plaintiff against the2nd defendant.
Sri Lanka Law Reports
(1998) 1 Sri L R.
APPEAL from the judgment of the Court of Appeal.
Faisz Musthapha, PC with Sanjeewa Jayawardena for the plaintiff-appellant.
A. K. Premadasa, PC with C. E. Silva for substituted 2nd defendant-respondent.
Cur. adv. vult.
23rd October, 1997
G. P. S. DE SILVA, CJ
The plaintiff instituted these proceedings on 14. 7 81 for the ejectmentof the 1st defendant (tenant) on the grounds that he had ceased tooccupy the premises in suit without reasonable cause for a continuousperiod of not less than 6 months (section 28 of the Rent Act) andthat he was in arrears of rent for a period exceeding 3 months.
On 10.11.81 the Fiscal informed court that the 1st defendant hadleft the Island and therefore summons could not be served on himbut was affixed to the front wall of the premises. On the same dayone P. Kandasamy appeared in court and stated that he was the tenantof the premises in suit and moved that he be added as a defendant.The plaintiff objected to this application. The court, however, madeorder allowing the application and P. Kandasamy was added as the2nd defendant. The District Court fixed the case for ex parte trialagainst the 1st defendant and permitted the 2nd defendant to file hisanswer.
The 2nd defendant filed his answer on 6. 10. 82. In his answerthe 2nd defendant specifically answered the averments in the plaintand further pleaded that the 1st defendant left the premises in 1969,and that he (2nd defendant) paid rent to the plaintiff till 1973; thereafterhe deposited the rent with the local authority until 1977. In short, hisposition was that from 1969 he succeeded to the tenancy and paidrent to the plaintiff. He further pleaded that he spent Rs. 7,500/- forthe repairs of the premises on account of which he claimed a jusretentionis. What is more, he prayed for an order of court to enablehim to deposit in court the sum of Rs. 5,100/- being rent for the periodDecember 1977 to December 1982.
Hanaffi v. Nallamma (G. P. S. de Silva, CJ)
Thereafter the plaintiff filed a replication dated 7. 2. 83 pleading,inter alia, (a) that the 2nd defendant was never a tenant under theplaintiff, (b) that the 2nd defendant was in forcible and unlawfuloccupation of the premises. In his replication the plaintiff prayed forthe ejectment of the 2nd defendant and for restoration of the premisesto him. It is to be noted that no amended plaint was filed althoughthe court made order adding P. Kandasamy as the 2nd defendant.
At the trial on 21. 4. 88 (ex parte against the 1st defendant) issueswere raised on behalf of the plaintiff and the 2nd defendant. Theplaintiff gave evidence, evidence was led on his behalf, and theplaintiffs case was closed on 21. 4. 88. The trial was resumed on17. 1. 90 and on the day the 2nd defendant produced the deathcertificate of the 1st defendant which was marked as VI. Counsel forthe plaintiff indicated to court that he was not taking steps to substituteany person in the room of the deceased 1st defendant. His positionwas that the case could proceed against the 2nd defendant in termsof section 393 of the Civil Procedure Code. The court made orderthat the plaintiff was entitled to proceed against the 2nd defendantonly. When the trial was resumed on a subsequent date counsel forthe 2nd defendant informed court that he was closing his case withoutleading any other evidence. Written submissions were filed and theDistrict Court entered judgment ex parte against the 1st defendant(apparently by an oversight) and entered judgment in favour of theplaintiff against the 2nd defendant. The 2nd defendant appealedagainst the judgment to the Court of Appeal. The Court of Appealallowed the appeal and set aside the judgment of the District Court.The plaintiff had now preferred an appeal to this court against thejudgment of the Court of Appeal.
Mr. A. K. Premadasa, for the 2nd defendant-respondent strenuouslycontended that the Court of Appeal was correct in setting aside thejudgment of the District Court. Counsel sumbitted that in an actionfor ejectment where a party is added, it is essential that an amendedplaint should be filed and that in the amended plaint there has tobe a prayer for the ejectment of the added party. The plaint as it 'stood sought no relief against the 2nd defendant. Counsel furtherurged that a replication cannot take the place of an amended plaintand that it was not open to the plaintiff to seek ejectment of the 2nddefendant by way of a replication. Counsel stressed that in the plaintthere is no prayer for the ejectment of the 2nd defendant; nor was
Sri Lanka Law Reports
(1998) 1 Sri L.R.
there a cause of action disclosed in the plaint against the 2nddefendant. Mr. Premadasa submitted that the Court of Appeal wascorrect when it held that "judgment could not have been enteredagainst the 2nd defendant as the plaint stood without amendment.Court cannot grant relief except that prayed for in the plaint unlesson the agreement of parties."
Mr. Musthapha for the plaintiff-appellant emphasized that at nostage was an objection taken to the filing of the replication; that itwas the 2nd defendant who sought to be added as a party to theproceedings and the court allowed the addition despite the objectionstaken on behalf of the plaintiff. Mr. Musthapha urged that althoughthere may be an irregularity in the manner of pleading, yet thereplication became a part of the pleadings in the case since noobjection was taken by the 2nd defendant Mr. Musthapha furtherpointed out that the replication specifically referred to the avermentsin the answer and in the prayer the relief prayed for was, inter alia,the ejectment of the 2nd defendant. The 2nd defendant not havingobjected to the filing of the replication, cannot now take up the positionthat the District Court did not have jurisdiction to enter judgmentgranting the relief prayed for in the replication.
It seems to me that the submissions of Mr. Premadasa in regardto the pleadings amount to no more than an irregularity in the plead-ings. It is certainly not a matter which constitutes a bar to the plaintiffmaintaining the action. The case proceeded to trial on the issues andtherefore it is very relevant to consider the issues that were raisedat the trial – a matter which was not adequately considered by theCourt of Appeal.
The plaintiff raised the following issues:
Is the 2nd defendant the tenant of the plaintiff?
If issue No. (1) is answered in the negative is the plaintiffentitled to eject the 2nd defendant?
The issues raised on behalf of the 2nd defendant read thus:
Was the 2nd defendant accepted by the plaintiff as histenant?
Hanaffi v. Nallamma (G. P. S. da Silva, CJ)
Did the plaintiff refuse to issue receipts for the paymentof rent made to him by the 2nd defendant?
Does the conduct of the plaintiff preclude him fromrefusing to accept the 2nd defendant as his tenant?
In the event of the above issues being answered in favourof the 2nd defendant, can the plaintiff have and maintainthis action?
in any event has the 2nd defendant effected repairs tothe premises in suit at his own expense as averred inparagraph 6 of his answer?
(/) If so, is he entitled to recover the said expenses fromthe plaintiff and to continue to occupy the premisesuntil payment is made.
It is seen that there is no reference at all to the 1st defendantin the issues. What is more, there is no issue as to whether the plaintdisclosed a cause of action. What is relevant for present purposesand what needs to be stressed is that once issues are framed, thecase which the court has to hear and determine become crystallizedin the issues. It is the duty of the court "to record the issues on whichthe right decision of the case appears to the court to depend" (section146 (2) of the Civil Procedure Code). Since the case is not tried onthe pleadings, once issues are raised and accepted by the court thepleadings recede to the background. The Court of Appeal was in errorin harking back to the pleadings and focusing on the "validity" andthe "legality" of the pleadings.
On a reading of the issues it is clear that the crucial issue inthe case was whether the 2nd defendant was the tenant under theplaintiff. The District Court rightly held that there was no evidenceon record in support of the 2nd defendant's claim df tenancy underthe plaintiff. Viewed in the light of the issues framed and the evidenceon record the District Court rightly entered judgment for the plaintiffagainst the 2nd defendant. The question whether an amended plantshould have been filed and whether it was permissible for the plaintiffto file a replication are now not material and do not really arise forconsideration on this appeal.
Sri Lanka Law Reports
(1998) 1 Sri L ft.
For these reasons the appeal is allowed, the judgment of the Courtof Appeal is set aside and the judgment of the District Court (exceptthe ex-parte judgment against the 1st defendant which is a nullity)is restored. (The 2nd defendant died while the appeal was pendingand the widow has now been substituted).
On a careful consideration of all the facts and circumstances, Idirect writ of ejectment not to issue till 30th April 1999. The plaintiffis entitled to take out writ without notice after 30th April 1999 andto be placed in possession of the premises in suit. I make no orderas to costs.
PERERA, J. – I agree.
BANDARANAYAKE, J. – I agree.
HANAFFI v. NALLAMMA