A. M. M . IBRAHIM SAIBO Appellant ,and S. D. M. MANSOOR et al Respondents

053-NLR-NLR-V-54-A.-M.-M-.-IBRAHIM-SAIBO-Appellant-and-S.-D.-M.-MANSOOR-et-al-Respondents.pdf

Ibrahim Saibo v. Mansonr
217
1953 Present: Rose C.J., Gratlaen J., Pulle J., Swan J. andM. D. de Silva J.A. M. M. IBRAHIM SAIBO, Appellant, and S. D. M. MANSOORet al., Respondents
S. C. 36—G. R. Colombo, 15,508
Landlord and tenant—Action for ejectment—Decree entered against tenant—Bindingeffect on sub -tenant—Joinder of sub-tenant as party—Givil -Procedure Code,ss. 18, 324 (1, 325, 327—Rent Restriction Act, No. 29 of 1948, s. 13—Rightof sub-tenant to claim statutory protection.
A sub-tenant of premises let under a non-notarial contract of monthlytenancy is not liable to be removed by a Fiscal’s Officer under a writ of ejectmentdirected against the tenant alone in execution of a decree entered in proceedingsin which the sub-tenant was not made a party although he had commencedhis occupation of the premises before the action commenced.
Kudoos Bhai v. Visvalingam (1948) 50 N. L. R. 59, overruled.
In an action for rent and ejectment instituted by a landlord against histenant, a sub-tenant may be added by Court as a party under the provisionsof section 18 of the Civil Procedure Code. But where he was not so added asa party and the landlord, who has obtained a decree for ejectment againstthe tenant alone, applies to be placed in possession of the premises, the properprocedure for the Court to adopt is in the first instance to direct that “ cons-tructive delivery ” of the premises be given by the Fiscal to the landlord underthe proviso to section 324 (1) of the Civil Procedure Code, and thereafter toinvestigate the landlord’s claim to complete and effectual possession in accor-dance with the procedure laid down in section 327 of the Civil Procedure Code.
The statutory protection given by the Bent Bestrietion Act to a tenant canalways be relied on by a sub-tenant.
.^^.PPEAIi from a judgment of the Court of Requests, Colombo. Itwas reserved under the provisions of section 51 of the CourtsOrdinance for the decision of a Bench of Rive Judges.
H. V. Perera, Q.C., with M. Somasv/nderam and S. Sharvananda,for the petitioner appellant.—The question is whether a sub-tenant isliable to be ejected under a writ of ejectment obtained by a landlordagainst a tenant in execution of a decree entered in proceedings towhich the sub-tenant was not made a party. In this connection sections323 and 324 of the Civil Procedure Code are relevant. The question is,who is bound by a decree for possession of immovable property. Cloarlythe parties to the action are bound, and so are persons occupying theproperty by virtue of some relationship subordinate to the judgment-debtor, e.g., his wife, children and servants. With regard to the positionof privies by subordination see Bigelow on Estoppel, 6th ed., pp. 158, 159.Persons in occupation—e.g., lessees, mortgagees—who have rights ofproperty acquired from the judgment-debtor will be bound by thedecree only if they acquired their interests either pending the action orafter decree. See section 11 of the Registration of Documents Ordinance10uv.
SJ. N. B 23249-1,591 (12/53)
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Ibrahim Saibo v. Mansoor
(Chap. 101). A distinction must be drawn between a person occupyingthe property under a notarial lease and a person who is in occupation asa monthly tenant. The former has a right of property, the latter hasonly a personal right. With regard to the juridical nature of a tenant’srights, see Wille : Landlord and Tenant, 4th ed.,p. 133. See also section 2of the Prevention of Frauds Ordinance (Chap. 57), and Carron v. Fernando1It has been held that a sub-lessee of a monthly tenant and atenant at will cannot claim to occupy the property when the tenancyis extinguished. See Sailendra Nath Bhattacharj ee v. Bijan LaiGhdkravarty 2 and Berton v. Alliance Economic Investments 1 2 3 *.
H. W. Tarnbiah, with V. Batnasabapathy and M. M. Nalliah, forthe 2nd defendant respondent.—The Rent Restriction Act would beset at nought if a sub-tenant who is not a party to an action for ejectmentby a landlord can be ejected from the premises. Sub-letting was per-mitted before 1st January 1949. The inclusion of section 9 in ActNo. 29 of 1948 is significant in this connection. Sub-tenants havevested interests in the property. See section 26 of Act No. 29 of 1948.The Roman-Dutch Daw permitted sub-letting. See Wille : Landlordand Tenant, 4th ed., p. 112. On the question whether a sub-tenantshould be made a party to an action for ejectment brought by a landlordagainst his tenant, see Mohamed Hanijfa v. Dissanayake 4 and Siripina v.EJcanayake5 *. A different view was taken by a single Judge in KudoosBhai v. Viswalingam 6 but that view was not followed by two Judges inJustin Fernando v. Abdul Bahiman7. In this connection see alsoMussan Haji v. Thavara Koran8 9 ; Nallamuthu Padayachi v. SriniwasaAiyar9 ; and Geen v. Herring10. The view of Bigelow {supra) whichstates the American law cannot be accepted in Ceylon. In India itselfthere is a conflict of views. Minet v. Johnson11 is based on Englishprocedural law different from our law of procedure. Our law of resjudicata is contained in section 207 of the Civil Procedure Code. Thecorresponding sections of the Indian Code are not the same and Indiandecisions are not always applicable. See Palaniappa Chetty v. Gomes12and Samichi v. Pieris13. For the law in South Africa, see Wille : SouthAfrican Law, 2nd ed., p. 252; Doorgapershad v. Oliver14; Katz v.Beading15. With regard to the joinder of tenant and sub-tenant seeJuhar v. Bamanathan16. The cause of action is the same against tenantas well as sub-tenant. The test laid down in Dingiri Menika v. PunchiMahatmaya 17 should be applied. With regard to the legal position of amonthly tenant see Wille : Landlord and tenant, 4th ed., p. 41 ; Thassimv. Gabeen18 ; The Imperial Tea Co. Ltd. v. Aramody19 ; Fonseka v.Jayawickrema 20. With regard to section 2 of Ordinance No. 7 of 1840,an informal lease of over one month is regarded as a monthly tenancy—
1[1933) 35 H. L. R. 352.
2[1945) A. I. R. Calcutta 283.
3[1922) 1 K. B. 742.
* [1922) 4 Times 94.
(1944) 45 N. L. R. 403 at p. 404.
(1948) 50 N. L. R. 59.
7(1951) 52 N. L. R. 462.
3 (1921) A. 1. R. Madras 708.
9(1924) A. I. R. Marlras 576.
10(1905) 1 K. B. 152 at p. 158.
(1890) 63 L. T. 507.
13 (1908) 4 Bat. Reps. 21 at p. 23.
13 (1913) 16 N. L. R. 257 at p. 260.11 (1948) 2 S. A. L. R. 787.
(1944) O. P. D. 197.
(1952) 53 N. L. R. 454.
(1910) 13 N. L. R. 59 at p. 63.
(1946) 47 N. L. R. 440.
1B(1923) 25 N. L. R. 327.
30 (1892) 2 G. L. Rep. 134 at p. 135.
Ibrahim Saibo v. Mansoor
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BuvRgens v. Carolis Appu1; Bandara v. Appuhamy 3 ; H. Kira Fernandov. V. D. Ukkuwa3. No authority has been cited by appellant for thedistinction drawn between real and personal rights in the interpretationof section 324 of the Civil Procedure Code. It is submitted that thecorrect view is stated in Justin Fernando v. Abdul Rahman {supra).
H. W. Jayewardene, with D. R. P. Goonetilleke, for the^ 1st defendantrespondent.—With regard to appellant’s argument based on the meaningof the words “ bound by decree ” it is submitted that a sub-tenant isnot a privy by subordination of the judgment-debtor. The principlestated in Bigelow {supra) is based on English land tenure and is thereforenot applicable in Ceylon. The position in Ceylon is governed by theRoman-Dutch Law. See Berwick's Yoet, p. 219, and Wills:Landlord and Tenant, 3rd ed., pp. 103, 108.
A. W. W. Goonewardene, with T. Velupillai, for the 3rd, 4th and 6thdefendants respondents.
H. V. Pereira, Q.G., in reply.—On the question of misjoinder, seesection 18 of the Civil Procedure Code. Any person whose presence maybe necessary for a complete adjudication can be made a party. If asub-tenant has no real right then he is bound according to the rules of“ res judicata ”. Bigelow (supra) was cited only to show that there existsa class of persons, privies by subordination, who are bound by decrees.See also Spencer Bower : Res Judicata, 1924 ed., p. 130. Under section324 of the Civil Procedure Code the Fiscal has the power to removepersons “ bound by the decree”, that is, bound by the law of “resjudicata ”. In any event a sub-tenant would come within the provisoto section 324, and in relation to him the Fiscal would give constructivepossession of the premises to the landlord. See Abubaker Lebbe v. IsmailLebbe4 and Adyanath Ghatak v. Krishna Prasad Singh6. The legalpossession of the sub-tenant having once come to an end, if he resistsfurther the landlord may make an application under section 325 beforeobtaining a subsequent order of ejectment under section 327, which givesa sub-tenant a right to be heard. For the scope of sections 325 and 327see Chinnathamby v. Somasundera Aiyer6 and Vanderpoorten v.Ameresekera 7.
Cur. adv. vnU.
[The following judgment was written by the Bench of Five Judgescollectively :—j
' January 5, 1953.
This appeal was reserved under the provisions of section 51 of theCourts Ordinance for the decision of a Bench of Five Judges. Thequestion to be determined is whether a sub-tenant is liable to be removed
1 (1919) 21 N. L. R. 156.* (1908) 11 N. L. R. 309.
3 (1923) 25 N. L. R. 176..6 (1949) A. I. R. ( P. C. ) 124.
3 (1936) 1 C. L. J. Reps. 96.3 (1947) 48 N. L. R. 515.
7 (1927) 28 IT. L. R. 452 at p. 455.
220
Ibrahim Saibo v. Manxoor
by a Fiscal’s Officer under a writ of ejectment directed against the tenantalone in execution of a decree entered in proceedings to which the sub-tenant was not made a party although he had commenced hia occupationof the premises before the action commenced'. For the purpose of judg-ment which we are about to pronounce, the term “ sub-tenant ” is con-fined to monthly sub-tenants under non-notarial contracts. The positionof a sub-lessee under a notarial contract for a term exceeding one monthdoes not arise for consideration.
The question under consideration had been answered in the negativeby a single Judge of this Court in Mohamed Haniffa v. Dissanayake l,and later by a Bench of two Judges in Siripina v. Ekanayaka 2. InKudoos Bhai v. Visvalingam 3, however, a single Judge of this Court, underthe impression that the ruling in Siripina’s case was an obiter dictum andtherefore not binding on him, considered himself free to take a contraryview, but in Justin Fernando v. Abdul Rahiman 4, a Bench of two Judgesheld that Siripina’s case had been correctly decided. In consequenceof this conflict of authority, much uncertainty has prevailed as to whatis the correct legal position in regard to a problem of considerable practicalimportance at the present time, and it is desirable that the conflict shouldbe resolved by an authoritative pronouncement of this Court.
The effect of a concluded contract of sub-tenancy is that the tenant,while remaining liable to the original landlord for the fulfilment of his owncontractual obligations, has for the time being transferred to the sub-tenant the right to occupy the rented premises. If, during the subsis-tence of the main tenancy, the intermediate tenant defaults in the paymentof rent, the actio locati is available to his landlord to sue him (but not thesub-tenant) for recovery of rent. “ An original lessor has no right tothe actio ex locato against a sub-tenant, for there was no contract betweenthem, and one cannot sue or be sued on the contract of another ”.—Voet 19.2.21. Similarly, an action lies against the tenant at the endof the hiring for “ the restoration of the thing in the same state in whichit was given ”.— Voet 19.2.32. This latter remedy is not destroyed bythe mere fact that the premises happen to be in the occupancy of a sub-tenant at the relevant date. In that eventuality the Roman-Dutchlaw recognises that a landlord has one distinct cause of action againstthe tenant (based on contract) for the recovery of the property, andanother (based on delict) for the ejectment of the sub-tenant who remainsin occupation after the main tenancy has expired. In the South Africancase Katz v. Reading et al. 6 Sutton J. said ,“ A sub-tenant cannot remainin occupation after the expiration of the main lease ” (meaning therebythe main tenancy) “ and the landlord is therefore entitled to an order ofejectment against the sub-tenant ”. There is nothing in the develop-ment of the Roman-Dutch law in Ceylon which leads to a differentconclusion.
The practical question arises at once how, in order to avoid a multi-plicity of suits, a sub-tenant can be joined in an action for rent and eject-ment against a tenant. Although it is extremely desirable and convenient
1 (1922) 4 T. C. L. B. 94.3 (1948) 50 N. L. B. 59.
3 (1944) 45 N. L. B. 403.4 (1951) 52 N. L. B. 462.
» (1944) Xl. R, D. 197,
Ibrahim Saibo v. Manaoor
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that a landlord should do so it could be said that there was a mis-joinder. This difficulty is completely overcome if a plaintiff after filing anaction for rent and ejectment against his tenant, moves the court undersection 18 of the Civil Procedure Code to join the sub-tenant. Suchan application should normally be allowed. Section 18 provides for thejoinder of persons “ whose presence may be necessary in order to enablethe court effectively and completely to adjudicate and settle all thequestions involved in the action ”. In our view the Code after makingprovision restricting the joinder of parties and causes of action by a plain-tiff as of right enables the court under section 18 on the considerationof the merits of an individual application to relax the rigours imposed byother sections. It is proper that a court should have this power because,as in the circumstances under consideration, delay and inconveniencewould be caused if power was not vested in some authority to relax therules laid down to prevent in the generality of cases the indiscriminatejoinder of parties and causes of action.
In the present action the plaintiff-appellant obtained a decree forejectment against his tenant alone in proceedings from which a numberof sub-tenants, though originally joined as defendants, had beendischarged at an early stage of the trial in deference to the current rulingof a single Judge of this Court in Kucloos Bhai v. Visvalingam (supra).The question is whether the decree exposes all these sub-tenants toliability to peremptory removal under the provisions of section 324 (1)of the Civil Procedure Code which reads as follows :—
“ Upon receiving the writ the Fiscal or his officer shall as soon asreasonably may be repair to the ground, and there deliver overpossession of the property described in the writ to the judgment creditoror to some person appointed by him to receive delivery on his behalf,and if need be by removing any person bound by the decree who refusesto vacate the property ;
Provided that as to so much of the property, if any, as is in theoccupancy of a tenant or other person entitled to occupy the same asagainst the judgment debtor, and not bound by the decree to relinquishsuch occupancy, the Fiscal or his officer shall give delivery by affixinga copy of the writ in some conspicuous place on the property andproclaiming to the occupant by beat of tom-tom, or in such othermode as is customary, at some convenient place, the substance of the *decree in regard to the property ; and
Provided also that if the occupant can be found, a notice in writingcontaining the substance of such decree shall be served on him, and insuch case no proclamation need be made ”.
In an action for ejectment instituted against a tenant by his landlordthe foundation of the decree is the judicial decision that events hadoccurred which gave rise to the termination of the main tenancy underthe common law and also, should the question arise, that circumstanceshave arisen which deprive the tenant of the protection of such RentRestriction legislation as was applicable to the premises at the relevantdate. On the basis of this adjudication, the tenant is required undera mandatory decree to fulfil bis contractual obligation to restore the
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Ibrahim Saibo v. jblansoor
property to his landlord. On his failure to obey that direction, the decreeauthorises the issue of a writ for his removal by the Fiscal from thepremises under section 324 (1) with a view to their restoration to the decreeholder. This writ would also catch up persons who, though not speci-fically included in its terms, are present on the property by virtue ofsome relationship subordinate to the judgment debtor, e.g. his servantsand the members of his household. Persons in that category cannotclaim the protection of the proviso to section 324 (1) and are withoutquestion liable to forcible removal on a writ of ejectment directed againstthe judgment debtor.
To what extent does a decree for ejectment, if passed against thetenant alone, affect a sub-tenant who is in occupation of the premises ?A number of arguments have been addressed to us and a number ofreasons appear in the decided cases as to how this question should beanswered. Some point in one direction and some in another. Wethink that a decisive argument is to be found in the section itself. Inthe words “ tenant or other person entitled to occupy the same as againstthe judgment debtor and not bound by the decree to relinquish suchoccupancy ” the two phrases (1) “ entitled to occupy the same as againstthe judgment debtor ” (2) “ not bound by the decree to relinpuish suchoccupancy ” were not'intended to and do not qualify the word tenant.The section recognises a tenant as belonging to the category of persons“ entitled to occupy the same as against the judgment debtor and notbound by the decree to relinquish such occupancy ” and proceeds toextend the application of the proviso to “ other ” persons who are in thesame category. It follows that the proviso enjoining constructivedelivery applies to all tenants. Where the decree for ejectment is againsta tenant a sub-tenant would be covered by the word “ tenant ” in thesection. Upon the view we have formed no sub-tenant who is not aparty to the decree is bound by the decree to relinquish occupancy butis a person to whom the proviso applies. He is a person who cannotbe ejected upon a writ of ejectment against the tenant but in relation towhom constructive delivery under the proviso should be given to thedecree-holder.
The constructive delivery or possession under the proviso to section324 when made on the orders of a court of competent jurisdictioneffectively terminates the right to possession not only of the tenant butalso of the sub-tenant. Adyanath Ghatak v. Krishna Prasad Singh andanotherx. After constructive possession has been given the decree-holder can avail himself of the remedies provided by sections 325 and327 for the purpose of obtaining a subsequent order for the ejectmentof the sub-tenant. At an inquiry under section 327 the sub-tenant willhave an opportunity of being heard before an order for ejectment is madeagainst him. As the constructive delivery under section 324 has effec-tively determined his rights to possession he would not be able to resistthe application to eject him except on the grounds hereinafter mentioned.
What, it may be asked, is the purpose in this scheme, which we thinkhas been laid down in the Code, for an inquiry under section 327 ? Iensures that a person such as a tenant who is not a party to the decree1 A. A if. {1949) 124 P. C.
Ibrahim Saibo v. Manaoor
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is heard, before he is ejected. He is given an opportunity to justify hisresistance. The investigation serves to ascertain the precise positionof the person resisting and this is important where he is not a party tothe decree. If it is verified at the inquiry that the person resisting isa tenant to whom notice of constructive delivery has been given then,subject to such defences as he may raise (these are dealt with later), anorder for ejectment will be made. This procedure recognises the whole-some rule that no person not named in the decree (except those in thesubordinate relationship previously referred to) can be ejected unlessand until it is established after he is heard that he is liable to beejected.
We have now dealt with two courses which a landlord can adopt forthe purpose of obtaining possession. Tirst to join the sub-tenant in anaction against the tenant and thereby obtain a decree for the ejectmentof both. Secondly if he has sued the tenant without joining the sub-tenant he can obtain a subsequent order for ejectment against himunder section 327. A third course is open to him. Where the landlordhas sued the tenant without joining the sub-tenant he may sue the latterfor ejectment in a separate action.
A few further observations on the position of a sub-tenant under thecommon law are material to the questions we have discussed. Theposition of a monthly sub-tenant whose immediate landlord is a monthlytenant is precarious. The tenant can determine the sub-tenancy bygiving notice to quit. But the tenant can also by agreement with thelandlord terminate the tenancy between himself and the landlord inwhich event the sole foundation for the sub-tenant’s right to occupationcrumbles at once and he is liable to eviction by the landlord. In anaction against him, if the circumstances in which he is sought to beevicted are harsh, a court would no doubt give him relief by staying writunder the decree for a reasonable period. A sub-tenant cannot complainthat the law gives him no further rights of protection because he mustbe taken to know full well that in entering into a contract of tenancywith a person who is himself a tenant, his right to occupation isfragile.
In an inquiry under section 327 the termination of the tenancy whichis the foundation of the decree against the tenant can be assumed. Itis not necessary to resort to any principle of res judicata to arrive at thisconclusion. As already stated a landlord and tenant by the simpleprocess of agreeing to the determination of the tenancy can deprivea sub-tenant of his right to occupation. Such a determination maywork to the detriment of a sub-tenant but there is no room for anycomplaint of fraud or collusion because however harsh the determinationmay be it is nevertheless lawful, and results simply from agreementwhich cannot be characterised as fraudulent or collusive. The declara-tion implicit in a decree for eviction that the original tenancy has ceasedto exist works no more hardship on the sub-tenant, the security of whosetenure is so essentially dependent on the lawful continuation of the maintenancy. The decree of a court of competent jurisdiction must thereforebe regarded as marking formally the cessation of the original tenancy.
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Ibrahimi Saibo v. Mansoor
The nature of the protection afforded by the Rent Restriction Actto a sub-tenant must now be considered. This Act contains provisionsregulating the rights and liabilities of a landlord and his tenant inter seand has no direct application to a sub-tenant vis-a-vis the head-landlord.
It was held by Lord Greene M. R. in delivering the judgment of theCourt of Appeal in the case of Brown v. Draper 1 which dealt with thecase of a licensee of a tenant that the licensee “ cannot in her own rightclaim the protection of the Acts ”. That proposition is equally true ofour Rent Restriction Act and what is stated about a licensee is applicableequally to a sub-tenant. But a sub-tenant can shelter behind the pro-tection afforded to the tenant (his immediate landlord) if that protectionhas not ceased to exist. Now where a decree for eviction has btfenentered against the tenant that protection would normally have ceasedto exist. A sub-tenant can plead its continued existence only on thebasis that the decree was entered by a Court which had no jurisdictionto enter it, for instance, in a case where the authority of the Board wasnecessary under section 13 of the Rent Restriction Act of 1948 but hadnot been obtained.
Section 13 says “ no action or proceedings for ejectment of the tenantof any premises which this Act applies shall be instituted in or entertainedby -any court unless the Board, on the application of the landlord, hasin writing authorised the institution of such action or proceedings ”except in certain specified cases. Any decree entered in an action inwhich such authority, being necessary, has not been obtained would bea nullity because a court acting without such authority would be actingwithout jurisdiction. It has to be noted that it is not competent fora defendant to contract out of such a requirement or by waiver tacitor express to obviate the necessity for compliance with it. There maybe other cases where there is a failure of jurisdiction. Such pleas wouldbe open to a sub-tenant in an inquiry under section 327 or in a separateaction brought against him.
Something more has to be said about the statutory protection givenby the Act to a tenant and of which a sub-tenant may avail himself. Atenant can never contract out of the protection afforded. It followsfrom this that he can at any moment recall a promise to surrenderpossession. The only two ways in which the statutory protection comesto an end are :—
By the handing back of the premises to the landlord.
By the order of a competent court that is to say a court acting
with jurisdiction.
This was held to be the position in England in the case mentioned aboveand the position is the same in Ceylon. The statutory protectionafforded to a tenant can always be relied on by a sub-tenant exceptof course where it has ceased to exist.
There remains the application of those general principles to the factsof the present case. On 18th October, 1950, the plaintiff-appellant,who had previously obtained a decree for the ejectment of his tenant
1 (1944) 1 K. B. 309.
Don Almis v. Village. Committee of Hiripiliya
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(the 1st defendant), complained to the Court that the 2nd to the 6thdefendants respectively had wrongfully resisted and obstructed theexecution of the writ by asserting claims which were allegedly “ frivolousand vexatious ”. After a careful investigation of the facts the learnedCommissioner of Requests decided that the 2nd to the 6th defendantswere in truth monthly sub-tenants of the 1st defendant, each occupyinga portion of the leased premises under a contract which had commencedmany years before the action against the 1st defendant was instituted.This finding has not been canvassed before us, and we accordingly holdthat the sub-tenants concerned were not bound by the deereee “ torelinquish their occupancy of the premises ”. On the facts of the presentcase the application that they be committed to jail under the provisionsof section 327a of the Civil Procedure Code was rightly refused by thelearned Commissioner.n.-
With regard to the appellant’s further application to be placed inpossession of the premises, the proper procedure for the Court to haveadopted in the circumstances of the case was in the first instance todirect that “ constructive delivery ” of the premises be given by theFiscal to the appellant under the proviso to section 324 (1) of the Code,and thereafter to investigate the appellant’s claim to complete andeffectual possession in accordance with the procedure laid down in section327 of the Code. Neither of these steps was in fact taken. The truelegal position has now been authoritatively clarified, and we make orderthat, if the appellant so desires, the correct procedure indicated by usshould now be followed. Subject to this, the learned Commissioner’sorder dated 25th July, 1951, is affirmed and the appeal is dismissed withcosts as between the appellant and the 2nd to 6th respondents. The1st respondent will bear his own costs of appeal.
Decree' varied.