015-SLLR-SLLR-1986-V-2-JALALDEEN-v.-RAJARATNAM.pdf
JALALDEEN
v.
RAJARATNAM
COURT OF APPEAL.
SIVA SELLIAH. J. AND P. R. P. PERERA. J.
C. A. 07/86 – D. C. MT. LAVINIA No. 1071/RE.
MARCH 6 AND 7. 1986.
Landlord and tenant – Execution of decree – Section 22 (1C) of Rent Act – Applicationfor stay pending disposal of application for revision ~ Title by inheritance fromgrandparent – Ss. 33(7). 22(1D) of Rent Act – Objection to jurisdiction.
Judgment was entered on 16.5.84 for plaintiff in a rent and ejectment suit on theground of reasonable^ rejuirejrtent – writ of execution not to issue until theCommissioner of National Housing notifies the District Judge that he is able to providealternative accommodation to the defendant as provided in s. 22( 1C) of the Rent Act.An appeal-(notice of appeal and petition) was filed. The Commissioner of NationalHousing notified the District Judge of alternate accqmmqdajtion for the defendant andplaintiff filed application for execution of decree. The defendant then filed application for.revision. The District Court stayed proceedings. At the hearing for the first time thejurisdiction of the District Court to entertain the action was attacked as the plaintiff wasalleged to be not entitled to institute action as his was a landlordship by inheritance orgift and must stem from a parent or spouse and not as in his case from a grandparent -s. 22(7) of the Rent Act.
Held-
An objection to jurisdiction must be taken at the earliest opportunity. Further,issues relating to the fundamental jurisdiction of the court cannot be raised in an oblique,.or veiled manner but must be expressly set out. The action was within the general andlocal jurisdiction of the District Court. Hence its decision will stand until the wrongedparty has matters set right by taking the course prescribed by law.
The plaintiff having got judgment and the. Commissioner of National Housing,having notified the District Judge of his ability to provide alternate accommodation thecondition for the issue of writ was satisfied and even if there is an appeal pending theplaintiff cannot be restrained from having the benefit of s22-( 1D) of the Rent Act. Writ ofexecution must therefore issue and cannot be stayed.
Cases referred to:
Ibrahim Saibo v. Mansoor – (.1953) 54 N.L.R. 217.
Walsh v. Nagy – [1949] 2 All E.R. 86.
Wimalasuriya v. Jayaweerasingham – (1976)-79 N.L.R. (1)90.
Jayaweera Bandara v. C. G. Weerasinghe – S. C. 11/82. and 35/82 S. C. Minutesof 24.3.83.
APPLICATION for revision and continuance of stay order entered by the District Court.Mount Lavinia.
H. L. de Silva, P.C., with M. S. M. Nazeem, P.C. and D. Mohamedfor petitioner.
A. K. Premadasa, P.C. with D. P. Mendis and J. Kanagasabai lor plaintiff-respondent.
Cur. adv. vult.
April 4. 1986.
SIVA SELLIAH, J.
This is an application for revision made by the defendant-petitionerseeking principally the stay of execution of Decree in DC Mt. LaviniaCase No. 1071 /RE until the hearing and determination of appeal andstaying further proceedings in the said case until the hearing anddetermination of this application.
The facts material for the determination of this application are asfollows:
The plaintiff filed action against the defendant in case No. 1071/REin DC Mt. Lavinia for the ejectment of the defendant from No. 23A,Muhandiram Lane, Dehiwela, on the ground of reasonable requirementand arrears_of ren_L This was resisted by the defendant. The caseproceeded to trial on the issues framed and after hearing evidencejudgment was entered in favour of the plaintiff on the ground ofreasonable requirementjan 16.05.84. It was however stipulated thatho writ of execution would issue until the Commissioner of NationalHousing notified the District Judge that he is able to provide alternateaccommodation to the defendant as provided in section 22 (1C) ofthe Rent Act. The defendant has given notice of appeal on 29.05.84and thereafter filed appeal on 16.07.84. The Commissioner ofNational Housing has notified the District Judge of alternateaccommodation for the defendant. The plaintiff has thereafter filedapplication for execution of decree in the District Court consequent towhich this present application for stay has been filed.
The contention of learned President's Counsel who appeared for thepetitioner was that there was a statutory bar to the institution of theaction by section 22 (7) of the Rent Restriction Act and therefore thecourt could not have proceeded to hear and determine the action. Forit was his contention that title to the premises from which ejectment
was sought was not acquired on a date subsequent to the specified /date. i.e. the date when the tenant came into occupation of -thepremises. He also contended that title by inheritance or gift in section22 (7) must stem from a parent or spouse and not from a grandparentas in this case and therefore the condition precedent to institution ofaction was not satisfied. His contention further was that the decreewas a complete nullity in the circumstances and that consequently hoWrit could issue. In other words he assailed the competency of thecourt and claimed that it had no jurisdiction. He further stated wherethe decree was a nullity and Writ.coujd not be executed, the amendingprovision of the Rent Act stipulating that court shall not stay executionpending appeal, cannot apply. He also contended that even if.thecourt had jurisdiction, nonetheless the correctness of its decision onthe merits is in question' in appeal and on that .ground too executionshould not issue.
•7
Section 22 (7) of .Rent Act 7 of 72 which was the main basis of thecontention of learned counsel for petitioner .and, on which hecontended the action could not have been instituted and thattherefore the decree entered was a nullity states as follows:, (vide,section 22 (7))._..
(7) Notwithstanding .. anything in the .preceding provisions of thissection, no action or. proceedings f,or the ejectment of the tenant ofany premises referred to, in sub-section (1) or sub-section.(2){i),shall beinstituted on'the ground that such premises are reasonably requiredfor occupation, as a residence for the landlord or any member of thefamily of the landlord or for. the purposes of the trade, business-,profession, vocation or employment of the landlord, where theownership of such premises-was-acquired by the landlord,-on .a datesusbsequent to the specified date, by purchase or by inheritance orgift other than inheritance or gift from, a parent-or spouse who hadacquired ownership of such premises on a date prior to-the specifieddate:>
Provided, however, that the preceding provisions of this sub-sectionshall not apply to the institution of any action or proceedings for theejectment^of the tenant of any premises the annual value of whichexceeds one hundred and fifty.,per centum of the relevant amount .where such tenant, had come into occupation thereof prior to the dateof commencement of this Act.
In this sub-section, 'specified date" means the date on which thetenant for the time being of the premises, or the tenant upon whosedeath the tenant for the time being succeeded to the tenancy undersection 36 of this Act or section 18 of the Rent Restriction Act(Chapter 274), came into occupation of the premises.
Section 22 of the Rent Act 7 of. 1972 was amended by Rent Law10 of 77 which by section 2 (2) 1 D (s.22 (1D)) enacted that-
'Notwithstanding anything in any other law, where a Writ inexecution of a decree for the ejectment of the tenant of anypremises referred to in paragraph(bb)of sub-section (1) is issued byany court, the execution of such writ shall not be stayed in anymanner by reason of any steps taken or proposed to be commencedin any court with a view to questioning, varying or setting aside suchWrit."
The learned counsel for plaintiff-respondent relied very strongly onthis provision and maintained that no stay order can accordingly issueor be permitted to remain in contravention of this provision which wasexpressly formulated to prevent a landlord being deprived of thebenefit of the decree lawfully obtained by him.
In this case the defendant's landlord became the tenant of theplaintiff's wife's grandfather in 1959 of the premises in suit. Thewife's grandfather donated the premises to the plaintiff's wife in March1970 and the defendant's husband died in October 70. Thereafterthe defendant succeeded to the tenancy under the plaintiff, attornedto him and paid him rent. These facts are not disputed (vide para 7 (e)of the Petition). A perusal of the issues framed by the defendant as setout in para 6 of the petition in this application reveal that no objectionwas taken to the jurisdiction of the court and indeed there was noissue raised regarding the valid jurisdiction of the court to hear anddetermine the action. Indeed it is only at this hearing that such anobjection is taken. Indeed if the objection to the decree is sofundamental as involving the competence of the court and the validityof the decree which the learned counsel for petitioner contends was anullity, it is not easy to understand why it was not taken at the earliestopportunity and why even in the prayer to this petition for Revisionthere is no prayer to set aside the decree on the ground that it wasentered by a court without competent jurisdiction and therefore anullity. Manifestly this application for Revision has been filed, after theappeal in the case was filed, to obtain a stay order against theexecution of the decree entered-the very thing tnat was prohibited bythe amending legislation set out above ip'section 2 (2) of Act 10 of77-a step which cannot be encouraged by this court.
The learned counsel for petitioner'has quoted the case of IbrahimSaibo v. Mansoor{ 1) where the collective court held that-
"Section 13 of the Rent Restriction Act says that no action orproceedings for ejectment of the tenant of any premises to whichthis Act applies shall be instituted in or entertained by a court unlessthe Board, on the application of the landlord, has in writingauthorized the institution of. such order or proceedings except incertain specified cases. Any decree entered in an action in whichsuch authority, being necessary, has not been obtained would be anullity because a court acting without such authority would beacting without jurisdiction, It,has to be noted that it is notcompetent for a defendant.to contract out of such a requirement orby waiver, tacit or express, to obviate the. necessity for compliancewith it." ''. .*.
In my view that.case can be distinguished because authority has to beobtained-in writing from the Board before institution of action; kindredprovisions existed in the Conciliation Board Act where too a certificatefrom the Conciliation Board stating that conciliation was not possiblehas to be filed; in the instant case this is not so and section 22(7) hasto be properly interpreted on the facts in the case. It is thisinterpretation and the answers to issues 6-11 (defendant's issues)that are being canvassed in appeal by the defendant and this court inthese proceedings cannot pronounce on matters which are pending inappeal nor act in disregard of the provision of section 2(2) 1 D of RentLaw No. 10 of 1977. ,Counsel for petitioner stated that section 22 (7)of the Rent Act imposed a statutory bar to the institution of action by alandlord; if so why was this not raised as a preliminary issue of law?Counsel contended that in effect this is what issues 6 and 7 sought tosay. Issues relating to the fundamental jurisdiction of the court cannotbe raised in an oblique or veiled manner, but must be expressly set.out.The learned District Judge has held that section 22(7) has, noapplication and this is in appeal.
Furthermore the proceedings in case No. 1071 /RE DC Mt. Laviniafrom which an appeal has been filed are not before this court in thisapplication and this court accordingly cannot properly make any orderto stay further proceedings in the said case without being in a positionto properly advise itself with reference to the proceedings, the natureof the evidence led at the trial, etc. There can be little doubt that uponthe hearing certain questions of fact had to be decided as well ascertain mixed questions of fact and law upon which the judge hasdetermined the case and which were being canvassed in appeal.
It would be singularly- inappropriate in an application for Revisionwhich has as its main object the obtaining of a stay order, for thiscourt to express any view on the matters determined by the trial judgeand from which there is an appeal pending. The trial judge has in factheld that—
"In the instant case the donation took place on 22.3.70 on whichdate the Act had not come into operation. Furthermore when thedonation took place Mohideen Jalaldeen was the tenant. This isreflected in P16; somewhere in June before the death of MohideenJalaldeen his wife attorned to the plaintiff as reflected in P15."
Thus all these are findings of fact which are being canvassed in appeal.
It will thus be seen that parties had submitted to the jurisdiction ofcourt, raised issues (which did not contest the jurisdiction of the court)and sought findings on the issues which were posed before thelearned trial judge. If there is to be a challenge to that jurisdiction itshould properly be in appeal. In Wimalasuriya v. Jayaweerasingham
Sharvananda. J. (as he then was) held:
"There is a fundamental difference between the existence ofjurisdiction and the exercise of jurisdiction. A challenge to themethod of the exercise of jurisdiction of a court can never in law,justify a denial of the existence of such jurisdiction. If a court whichhas general jurisdiction and has in addition local and personaljurisdiction, exercises such jurisdiction in an unauthorized manner,the wronged parties can only take the course prescribed by law forsetting such matters right, and if the course is not taken, thedecision, however wrong, cannot be disturbed."
It cannot be denied in this case that the District Court of Mt. Laviniahad the jurisdiction generally and locally to hear a case for rent andejectment. If its decision at the outcome of the trial is wrong it must be
reversed according to law in appeal, and the plaintiff having gotjudgment and having the benefit of section 2 (2) 1 D of Rent Law 10of 77 cannot be restrained from the benefit of the decree in his favour.
The learned counsel for defendant-petitioner also urged thatconsiderable hardship will be causfed to-the defendant if he is ejectedpending appeal. In this connection it is necessary to hear in mind thefact that as provided by law the Commissioner of Housing hasinformed the District Judge that he has provided alternateaccommodation to the defendant. In Jayaweera Bandara v. C. G;Weerasinghe (4) Wanasundara, J. held with Sharvananda, J. (as hethen was) and Wimalaratne, J. agreeing that:
"In regard to the issue of Writ, the only fetter on this power, as faras the action is concerned,, is to be found in section 22 1 (c) of RentAct 7 of 1972 no Writ,in execution of such decree shall be issuedby such court until after the Commissioner of National Housing hasnotified to such' court that’he is'" able-to provide _ajtennaieaccommodation_for such tenant and that if this isdone, (as in thiscase) that condition has been satisfied.",■
He further held that:
"Where a tenant by his own act has disabled himself fromaccepting the offer made by the Commissioner, Writ can lawfullyissue, because it is a case where'the Commissioner has notified thecourt that he is able to provide alternate accommodation for suchtenant within the meaning of section 22 l (c)."
Thus in this case, aliernate_accpmrrLodation having been provided tothe defendant as enjoined by law, the defendant is not entitled to thecontinuance of the stay order. The order staying further proceedings isaccordingly vacated and the orders sought in paras (b) and (c) of theprayer to the petition are refused. ■
The prayer regarding admission of Documents X1-X5 to be readalong with the pending appeal was not seriously canvassed in thisapplication as it will be urged at, the main hearing of the appeal.
The defendant-petitioner will [Day the plaintiff-respondent costs ofthis application fixed at Rs. 5.25
P..R. P. PERERA, J.-l agree.
Application dismissed.