001-SLLR-SLLR-1986-V-2-SENEVIRATNE-v.-FRANCIS-FONSEKA-ABEYKOON.pdf
SENEVIRATNE
v.
FRANCIS FONSEKA ABEYKOON
SUPREME COURT.
RANASINGHE. J.. TAMBIAH. J. AND L. H. DE. ALWIS. J.
S.C. APPEAL No. ,40/84.
A. APPLICATION No. 1098/82.
C. PANADURANo. 18067/CR.
JANUARY 17 AND FEBRUARY 02. 1986.
Landlord and Tenant-Plaintiff landlord taking possession of premises allegingabandonment after his appeal from judgment against him in a suit for ejectment wasabated-Application by defendant to be restored to possession-Can Court restore thepremises to the defendant tenant in the absence of a decree under s. 217(c) C.P.C. onbeing satisfied of forcible eviction by landlord?-Revision-Inherent powers ofCourt-Civil Procedure Code, section 839.
The plaintiff landlord after his appeal from a judgment dismissing his action for evictionof his tenant the defendant was abated, forcibly took possession of the premises letalleging abandonment ahd consequential deterioration of the premises. Thedefendant-tenant denied abandonment and applied to the Trial Court to restore him topossession. The Court granted the application.
The plaintiff then filed an application for revision of this order. The question was whetherin the absence of a decree restoring possession of the premises to thedefendant-tenant, the Court still had the power to make an order that possession berestored to the defendant which the Fiscal could execute.
Held-
The conduct of the plaintiff (failure to make full disclosure of the material facts in hisapplication for revision, delaying tactics when the defendant sought restoration ofpossession in the District Court, forcibly evicting the tenant and leaving the island afterinstalling another tenant in the premises) disentitled him to revisionary relief.
Since the plaintiff had taken the law into his hands and forcibly evicted the defendantalleging abandonment and deterioration of the premises, the Court could in theinterests of justice resort to its inherent powers saved under s. 839 of the CivilProcedure Code and make order of restoration of possession for the Fiscal to executeeven though the Civil Procedure Code provided for such restoration to possession onlyon a decree to that end entered under s. 21 7 (c) of the Civil Procedure Code.
Cases referred to:
Palaniappa Chetty v.. Goonehamy-(1909) 12 NLR 301.
Vangadasalem v. Chettiyar-(1928) 29 NLR 446.
De Silva v. Wijeyesekera-(1934) 36 NLR 287.
APPEAL from judgment of Court of Appeal.
P. A. D. Samarasekera. P.C. with W. P. Gunatilleke. and Jayantha de AlmeidaGunaratne for the plaintiff-petitioner-petitioner.
D. Wickramanayake with Sri Lai Perera for the defendant-respondent-respondent.
tCur. adv. vult.
March 6, 1986.
TAMBIAH, J.
The defendant-respondent came into occupation of premises No. 9.Kulatunga Road. Panadura in 1957. His landlord, then, was oneJayawardena. On the latter's death in 1968, his son-in-law, theplaintiff-petitioner, became the defendant-respondent's landlord. On20.9.1970,' the plaintiff-petitioner filed action for ejectment againstthe defendant-respondent and-obtained judgment in his favour on9.3.1973. The defendant-respondent appealed and the SupremeCourt set aside the judgment and a re-trial was ordered. At the re-trialjudgment was entered on 1 1.3.1 977 in favour of thedefendant-respondent and the action was dismissed. Theplaintiff-petitioner, then, appealed against the said judgment and thisappeal was abated by the Court of Appeal on 3.3.1981.
In October 1980. while the appeal was pending, the Rent Board ofPanadura was inquiring into an application made by thedefendant-respondent to have repairs effected to the premises. Atthese proceedings, the plaintiff-petitioner's position was that thedefendant-respondent had abandoned the premises several yearsago, and in consequence the condition of the premises haddeteriorated. The defendant-respondent maintained that all along hewas resident on the premises and its bad condition was due to hislandlord's 'failure to effect repairs. The members of the Rent Boardinspected the premises and concluded its inquiry on 21.10.1980. Itsdecision was sent to the parties on 10.12.1980. The Rent Boardrejected the plaintiff-petitioner's position and authorised thedefendant-respondent to effect the repairs to the value of Rs. 4.820which represented ten years' rent.
The same month, i.e., December 1980, while his appeal was stillpending before the Court of Appeal, the plaintiff-petitioner, who wasaway in Australia, returned to this. Island. On 30.12.1980, twentydays after the decision of the Rent Board was conveyed to the parties,the plaintiff-petitioner took possession of the premises. According tohim, he did so as the defendant-respondent had abandoned thepremises and it was irr a state of collapse. The defendant-petitionervehemently denied this; he maintained that the plaintiff-petitioneremployed thugs and forcibly ejected him from the premises. Havingregard to the Rent Board proceedings, its inspection of the premisesand its order delivered only 20 days earlier, the Court of Appeal'in itsjudgment, which is now appealed from, correctly concluded that thecontention of the plaintiff-petitioner that he took possession on30.12.1980 because the premises was abandoned and wascollapsing seems altogether unacceptable.
Having taken possession, the plaintiff-petitioner installed a newtenant and left for Australia. On 9.1.1 981, the defendant-respondentapplied to the District Court of Panadura, and sought restoration ofpossession. According to the defendant-respondent, having learntthat the plaintiff-petitioner had appointed Prof. Kannangara as hisattorney, notice of the application for restoration of possession wasserved on the latter and he appeared in Court and denied that he wasever given a power of attorney. After inquiry, on-8.3:1981, thelearned District Judge, by his order dated 30.1.1.1981 held that Prof.Kannangara was the lawful attorney of the plaintiff-petitioner. Prof.Kannangara, then, applied for leave to appeal from the said order tothe Court of Appeal. On 6.5.1982, the Court of Appeal refused leave,but, left it open to him to re-agitate the matter, if it became necessary,in any final appeal in the case.
While the application for leave to appeal was. pending, the case wascalled several times in the District Court of Panadura for objections ofProf. Kannangara to the application for restoration of possession, anddates were obtained for the filing of objections on the ground that theapplication to the Court of Appeal was pending. After the Court ofAppeal's order of dismissal on 6.5.1981, the case was called on21.5.1982 for objections. On that day, Miss Liyanage.attorney-at-law, appeared for the plaintiff-petitioner and tendered toCourt a letter dated 18.3.1981. signed by the plaintiff-petitionerrevoking the power of attorney granted to Prof. Kannangara. She alsomoved for a date to file proxy and objections of the plaintiff-petitionerto the application for restoration of possession. She held no proxyfrom the plaintiff-petitioner and, therefore was not entitled toparticipate in that day's proceedings. The defendant-respondent’s
counsel objected to the application for a further date. The learnedDistrict Judge refused to grant a further date. He observed that as thepower of attorney was revoked on 18.3.1981. the plaintiff-petitionerhad ample time to file his objections; that the plaintiff-petitioner wastrying to delay the final disposal of the application for relief. He alsomade an order that the defendant-respondent be restored topossession of the premises. Writ was issued on the same day and wasexecuted by the Fiscal on 24.5.1982. ejecting the persons inoccupation of the premises. It would appear that the purported tenantwho was ejected has filed action against the defendant-respondent inthe District Court of Panadura. and has asked that he be restored topossession, as he was a lawful tenant of the premises.
The plaintiff-petitioner did not- appeal from the learned DistrictJudge's order dated 21.5.1982; instead he moved the Court ofAppeal by way of Revision to have the order set aside. The Court ofAppeal dismissed the. application. It was argued for theplaintiff-petitioner that the existence of an executable decree in favourof a party is an essential pre-requisite for the issue of a Writ ofpossession under the Civil Procedure Code. and. therefore, the writissued by the District Court was bad in law. Much the same argumentwas addressed to this Court and learned President's Counsel for thepetitioner cited the cases of Palaniappa Chettv v. Goonehamy (1),,Vangadasalem v. Chettiyar (2) and De Silva v. Wijeyesekera (3) andsubmitted that a writ of execution which is not founded on a decreefor possession under s. 217 (c) of the Civil Procedure Code is a nullity,and the proceedings thereunder are void ab initio.
The Court of Appeal took the view that the instant case is eminentlyone in which the circumstances called for the exercise of the inherentpowers under s. 839 of the Civil Procedure Code, and the order by thelearned District Judge was one that was absolutely necessary to meetthe ends of justice. It held the order was a valid and lawful order. TheCourt of Ajapeal considered the conduct of the petitioner and hisattorney Prof. Kannangara. their efforts to frustrate and defeat the finaldisposal of the application of the defendant-respondent to havehimself restored to possession. It also considered the failure of thepetitioner to make a full and frank disclosure of all material facts in hisrevision application – the failure to mention that his action wasdismissed and his appeal was pending when he took possession, theRent Board proceedings and its decision and the petitioner sinstallation of a new tenant who had filed an action to eject the
defendant-respondent. Having regard to the plaintiff-petitioner'sconduct and his non-disclosures of material tacts, the Court ofAppeal decided that this was not an appropriate case for the exerciseof its powers in revision.
The plaintiff-petitioner's action for ejectment of thedefendant-respondent was dissmissed; therefore no executabledecree could have been entered by the trial Court. The only decreethat could have been entered was a decree of dismissal of the action.If learned President's Counsel's submissions are accepted, theresulting position would be: the plaintiff-petitioner could have filed anaction for ejectment of the defendant-respondent on the ground ofnon-occupation, but he chose not to do so; the plaintiff-petitioner,though he had filed an appeal against the judgment in favour of thedefendant-respondent which assured .to him the continuance of histenancy rights, need not await its results; the plaintiff-petitioner coulddisregard such judgment, take forcible possession of the premises andachieve by extra-legal means what he failed to achieve through theCourts; the defendant-respondent, on the other hand, who has beendeprived of the enjoyment of the fruits of the judgment must obey thelaw and have recourse, to due process of law; thedefendant-respondent must file a suit for recovery of possession,obtain a decree for possession and then apply for a writ of possession.Does it lie in the mouth of the plaintiff-petitioner to say this and preachthe law to others? If he desires to obtain possession on the ground ofnon-occupation he himself must resort to due process of law.
An extraordinary situation had arisen and to deal with'it, there wasno express provision in the Civil Procedure Code. It is to meet such acase that s. 839 was enacted. It empowered a Court to make suchorders as may be necessary for the ends of justice or to prevent abuseof the process of Court. Dealing with the corresponding section in theIndian Civil Procedure Code (s. 151) which is identical with s. 839,
Chitaley and Rao state {Code of Civil Procedure, 3rd Ed., Vol. !)-*»' ‘
"Every Court, whether a Civil Court or otherwise, must therefore,in the absence of express provision in the Code fbr that purpose, bedeemed to possess, as inherent in its very Constitution, all suchpowers as are necessary to do the right and to undo a wrong in the. course of the administration of justice (p. 1 1 99).
It is in the ends of justice that an injury should be remedied andneedless expense and inconvenience to parties avoided (p. 1212).
The' jurisdiction to make restitution is inherent in every Court andwill be exercised whenever the justice of the case demands it.(p. 1155)". '
and Sarker in his "Code of Civil Procedure" (Vol. 1. at p. 842) says:
"where a contingency happens which has not been anticipated bythe framer of the Civil Procedure Code, and therefore no expressprovision has been made in that behalf, the Court has inherentpower to adopt such procedure, if necessary to invent a procedure,as may do substantial justice, and shorten needless litigation."
A contingency arose for which there was no remedy in the CivilProcedure Code. Undoubtedly what the plaintiff-petitioner did was anenormous wrong. Both the Rent Act (s. 17(1) read with s. 42) andthe Protection of Tenants (Special Provisions) Act. No. 26 of 1970 (s.4 read with s. 9) make interference with the occupation of a tenant apunishable offence. The latter Act also makes ejectment of a tenant,otherwise than on an order of Court, a punishable offence (s. 5 readwith s, 9). The judgment of. the District Court gave thedefendant-respondent the right to stay on in the premises. He hadbe.en deprived- of this right by illegal means resort-ed to by theplaintiff-petitioner-. Justice of the case demanded that the wrong berighted. The remedy pointed out by learned President's counsel is a-regular-action instituted by the tenant for recovery of possession. Thatwould have put the tenant into needless expense and involved him inprotracted litigation particularly having regard to the fact that soonafter dispossessing the tenant, the plaintiff-petitioner left the shores ofthis country. -In the circumstances of this case, the learned DistrictJudge was justified in making an order for restitution and restoring thestatus quo ante between the parties. The only way the order forrestoration of possession could be effected is by the issue of a writ ofexecution to the Fiscal.
Learned President's counsel submitted that s. 839 was intended torepair errors committed by the court itself and not by. the parties.There is no merit in this submission. Not only have our Courts usedtheir inherent powers to repair injuries done to a party by their ownacts (see Sirinivasa -Thero v. Sudassi Thero (63 NLR-31). Salim v.Santhiya (69 NLR ’490)), they have also used their inherent powerswhere a party was in error, e.g. to stay further proceedings, where thehusband failed to comply with an order for payment of alimonypendente lite (see Asilin Nona v. Perera (46 NLR 109)).
Revision is a discretionary remedy. The conduct of a petitioner is arelevant consideration when he asks for relief by invoking adiscretionary remedy such as Revision. He must come to Court withclean hands. In this case, the plaintiff-petitioner's action for ejectmentof his tenant failed; what he failed to achievetthrough due legalprocess, he achieved by taking the law into his own hands. He tookforcible possession, and having obtained possession he installed anew tenant and then fled to Australia and thus put himself beyond thereach of the District Court of Panadura, which had local jurisdiction inthe matter.•.
By contrast, soon after forcible dispossession, on 09.01.1981, thedefendant-respondent applied to court to be, restored ,to possession,.Every attempt to frustrate .and delay the final disposal of thisapplication was made by the petitioner and his attorney, Prof.Kannangara. The attorney first denied he was ever granted a power of .attorney. When the court held' that he was the duly appointed/attorney, he took the matter to the Court of Appeal, which refused himleave to appeal on 06.05.1982. On 21.05.1982, the date on .whichthe attorney's objections were due, an attorney-at-law, who had :noauthority to represent the petitioner', announced to Court that the ,power of attorney had been revoked on 18.03.1981, a position,which cannot be reconciled with the earlier,iposition that he was not .appointed attorney. Postponement was refused and an order forpossession was made on 21.05.1 962. It had taken over one year andfive months'for the application to be finally disposed of.
Revision will also be refused where a petitioner is guilty ofsuppression of material facts. The Court of Appeal's judgment'setsbut the material facts tha.t.were deliberately suppressed by .theplaintiff-petitioner, and the Court has correctly refused to exercise itspowers in Revision, on this ground also.
I see no reason to interfere with the judgment of the Court ofAppeal; on the contrary, I see every reason to uphold it. The appeal isdismissed with costs.
RANASINGHE, J. – I agree.
L. H. DE ALWIS, J. – I agree.
Appeal dismissed.