056-NLR-NLR-V-73-A.-M.-YAHIYA-Appellant-and-G.-K.-LIONEL-PERERA-Respondent.pdf
Yahiya v. Perera
305
1970PresentSamerawickrame, J.A. M. YAHIYA, Ai>pcllant, and G. K. LIONEL PERERA, RespondentS. C. 132j67—C. R. Colombo, 92G62/JR. E.Action—Claim of plaintiff rendered, void by subsequent legislation before date oftrial—Claim in reconvention—Power of Court to adjudicate upon the claim inreconvention—Civil Procedure Code, ss. 7.5 (e), SI7—Rent Jies'riction (Amend-ment]| Act, -Yo. 12 of 10CG, s. 4 (1) (a)—Whether it has the effect of nullifyingclaims in reconvention also.
Where an action in a Court of Requests involves a valid claim by theplaintiff and also a claim in reconvention by the defendant but, betu-oen thedate of institution of the action and the date of trial, the claim of tlio plaintiffis rendered null and void retrospectively by- Parliamentary legislation, theCourt nmy nevertheless proceed to adjudicate upon the claim in rcconvcntion.In such a case it cannot bo contended that “ where there is no conventiontlicro can bo no rcconvcntion
Accordingly, tho provision in the Rent Restriction (Amendment) Act Xo. 12of l!>GG declaring actions for ejectment .null and void retrospectively does nothavo tho effect of nullifying a claim in rcconvention for 11 to recovery of a sumof money paid by the defendant in excess of tho rent due.
Appeal from a judgment of tho Court of Requests, Colombo.
A. R. Candappa, for the defendant-appellant.
IK. S. Weerasooria, for the plaintiff-respondent.
Cur. adv. vuU.
306SAMERAWICKRAME, J'.-—Yahbj<tV. PercraJuly 22, 1970. Samerawickraxie, J.—
On 15th January, 19GG, tlio pla ini iff-respondent filed this action for
tho ejectment of tho defendant-appellant from premises which are sub-ject to rent control and for consequential damages. On 10th March, 19G6,tho defendant filed answer in which he made a claim in reconvert lion fora sum of Rs. 624/77 being rent in excess of the authorised rent recoveredby the plaintiff. –
At the trial Counsel for the plaintiff stated that in view of the provisionsof tho Rent Restriction (Amendment) Act, 2fo. 12 of I960, ho was unableto proceed with the action. Counsel for tho defendant invited tho courtto proceed with the claim in rcconvention. It was contended on behalf ofthe plaintiff that as the action was void the claim in reconycntion couldnot ‘ bo adjudicated upon. The learned Commissioner of Requestsrejected this contention, lib further held with the defendant on the factsbut stated, " I am satisfied on the evidenco that the.rent agreed on bet-ween the parties from December, 1.963 was Rs. 35 a month, and that thereis no evidence placed before Court that there has been a determination ofthe authorised rent of the premises at Rs. 16-35, although it was agreed atthe trial that the authorised rent of the premises was Rs. 16-35. In theabsence of the date of determination of the authorised rent I hold that thoplaintiff was entitled to recover a sum of Rs. 35 per month which was therent agreed upon between the parties. ”
The defendant has appealed against the dismissal of his claim in recon-,yention and learned counsel for the defendant-appellant submitted thattho learned Commissioner had erred in thinking that there had been adetermination of the authorised rental of these premises. There was someevidenco that the authorised rental of the adjoining premises. which arecomparablo had been determined and that as a result of that the defend-ant realised that he had been charged rent in ex-ccss of the authorisedrent. It is only in special cases that tho authorised rental depends upona determination by the Rent Control Board and in the case, of otherpremises the authorised rental exists qnite.apart from any determination.There is no evidenco to suggest that these premises were of such a kindthat a determination by the Rent Control Board was necessary to fix the _authorised rent. Moreover, counsel had agreed at the time of raisingissues that the authorised rent was Rs. 16 35.
learned counsel for tho plaintiff-respondent was not in a position tosupport the reasons given by tho learned Commissioner for dismissing/the claim in reconvention. He sought to support his order on the groundthat had been decided against the respondent by the learned Commis-sioner. He submitted that as the action had been declared void by thelegislature, no further proceedings could have been had in it and thataccordingly, the claim in rcconvention did not arise for determination.
SAMERAWICKR AME, J.—YaMy* v. Perera
307
He submitted that where there was no valid claim by the plaintiff, thcro-could, by tho very naturo of things, he no claim in rceonvcntion. Horelied on a dictum in Veeravaku v. Supramaniam 1:—
** It would appear from a passage in Voct’s Commentaries on thePandects (5, 1.S6) that there are some applications to which a claim inrceonvcntion cannot be put forward by the defendant. He is ofopinion that these arc probably cases in which something is requiredwhich is not properly the subject of an action, where, as he puts it,imploratio non est aclionis loco, where the petition is not in the nature ofan action ; and he adds precision to this opinion by saying cum recon-ventio precedentem requital conventioncm, cotueulio autem judicialisnon ail, ubi nihil ab enhersario pclitum est, nullave actio inslituta, i.c.,where there is no -convention there can bo r,o rceonvcntion.”
He submitted further that if the Court had no jurisdiction to hear theaction, it had no jurisdiction to hear a part of it.
In terms of tho law os it stood at the time the plaint and the answercontaining tho claim in rceonvcntion were filed there was .a valid actionand a valid claim in rcconvention. Section 73 (e) of the Civil ProcedureCode states, inter alia :—
A claim in reconvention duly set up in the answer shall have thesame effect os a plaint in a cross action so as to enable tho court topronounce a final judgment- in tho same action both on the originaland on tho cross claim. ”
There is a special provision in respect of tho consequence of neglect toplead a claim in rceonvcntion in the Court of Requests. Section S17provides :—
“ Where the defendant in an action for breach of contract neglectsto interposo a claim in rceonvcntion consisting of a cause of action inhis favour for a like cause, which might have been allowed to him atthe trial of the action, he and every person deriving title thereto throughor from him arc for ever thereafter precluded from maintaining anaction to recover the same. ”
Parties-dcfcndants who have put forward claims in rceonvcntion aretherefore entitled to look for redress in the determination of such claimsand would obviously not have filed other actions in respect of the sameclaim. If the provision in Act 12 of J9GG, nullifying actions for ejectmenthave tho effect of nullifying claims in rcconvention also, such partiesdefendants will find that their claims could no longer be prosecutedbecause in very many cases they would be barred by prescription. Itwould be an nnfortunatcresult and one not intended by the legislature iftenants who have filed claims in rcconvention are deprived of all relief inrespect of their lawful claims by reason of the provision declaring•actions for ejectment null and void.
1 {1002) 6 .V. L. P.. 52 at 5J.
308
SAMERAAViaCRAME.'J.— Y.nhiya v. Per era
Section 4 (1) (a) of Act 12 of 1066 reads :—
" The provisions of sections 2 and 3 of this Act shall be deemed tohave come into operation on the twentieth, day of July, 10G2, andaccordingly—
(a) any action which was instituted oh or after that date and beforethe date of commencement of this Act for the ejectment of atenant from any premises to which the principal Act as amendedby this Act applies shall, if such action is pending on the date ofcommencement of this Act, be deemed at all times to have beenand to be null and void, ”
Where an action is deemed to have been null and void, it means thathough the action was not in fact void, it is to be taken as null and void-. It is therefore necessary to decide to what extent and for what purposethe action is to-be deemed to have been null and void. It is significantthat the provision docs not. say that it is to be deemed “for all purpose s”to have been null and-void.
In construing a provision which is retrospective in operation it isnecessary to bear in mind that it must not be given greater retrospectiveoperation than is necessary. Maxwell on the Interpretation of Statutes, '10th. Edition, at page 214 states :—
“ A statute is not to be construed to have a greater retrospectiveoperation than its languago rendcv3 necessary. Even in construing asection which is to a certain extent retrospective, the maxim oughtto bo borne in mind as applicable whenever the line is reached at whichthe words of the section cease to be plain. ”
The provision in s. 4 (1) (a) of Act 12 of 1966 plainly provides that an.action for ejectment is to be taken to have been null and void. Had theplaintiff claimed in addition to ejectment and consequential relief, afurther claim, e.g., for rent due, his action for the rent would not berendered null and void by this provision. A Jortioran, it appears to methat a claim in reconvention duly and validly made by a defendant at thetime his answer was filed is not retrospectively made null and void byreason of this provision for this provision does not make it plain and .clear that such a claim in reeonvention is to be deemed to bo void. I amtherefore of the view that the learned Commissioner correctly rejected the. contention that there could be no proceedings in respect of the claim inreconvention.
The reasons given by the learned Commissioner for dismissing the claimin reconvention cannot be supported. In his petition of appeal thedefendftnt-appellant has restricted his claim to Rs. 400-97. I set asidethe order of the learned Commissioner of Requests dismissing the claimin reconvention and direct that judgment bo entered for the defendantsappellant in a sum of Rs.'400-97. He will also be entitled to costs inboth Courts as in action for recovery of that sum.
Appeal allowed.