021-SLLR-SLLR-1995-2-ABEYSINGHE-V.-ABEYSEKERA.pdf
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Sri Lanka Law Reports
[1995] 2 Sri L.R.
ABEYSINGHE
V.ABEYSEKERA
COURT OF APPEALSILVA, J. (P/CA)
RANARAJA, J.
A. APPLICATIONS 205/94
43/94
C. COLOMBO 15878/LMARCH 13,1995.
Rei Vindicatio – Ex parte – Execution of a Decree – Proceedings under S. 328S. 662 Civil Procedure Code – Premises demolished – Restoration – Is itpossible? – Defendant dead at the time of Institution of Action – Proceedings anullity – Void – Coram non judice – Contract of Tenancy – Ex debito justitiae -Inherent Jurisdiction of Court – S 839.
The Respondent as the owner of the premises in suit instituted Rei Vindicatioaction against the father of the Petitioner. After Ex parte trial, the Fiscal ejectedthe power of attorney holder of the petitioner, who is the son of the originalDefendant, The petitioner instituted proceedings under s. 328 of the CivilProcedure code. The Learned District Judge dismissed the application as hefound that the premises in suit had been demolished in the interim and furtherheld that as the Defendant was dead at the time of the institution of the action theentire proceedings were Null and Void,
Held:
When there is no 'live' Defendant before Court it has no jurisdiction to hearand determine, the action. If the Court has no jurisdiction, it is of no consequencethat the proceedings had been formally conducted for they are coram Non-Judice. The judgment entered is void and a nullity.
The proceedings being void, the person affected can apply to have same setaside ex debito – justitiae – in the exercise of the inherent jurisdiction of the court.
The Tenancy of an Urban Tenement relates to the existence of a building,when the leased tenement is extensively damaged it is impossible to say that thepremises are still in existence for the tenancy to continue.
■ (4) Where the building perished, the statutory tenancy also ceased to exist, therecannot be a statutory tenancy in respect of bare land.
(5) Restitution will be effected only when such a course is legally and physicallypossible.
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Upon a consideration of earlier authorities on the subject. It is notpossible to accede to the submissions made by Learned President’sCounsel for the petitioner that the possession of the bare land onwhich the building originally stood should be handed over to thepetitioner. The tenancy of an urban tenement relates to the existenceof a building. When the leased tenement is so extensively damagedthat it can no longer be used for the purpose for which it was leased, itis impossible to say that the premises are still in existence for thetenancy to continue. (Samuel v. Mohideen(7>). In a contract of tenancy,the tenant is entitled to the use and occupation of the building, and ifthere is no building to use and occupy, there is no contract. If thebuilding is completely destroyed the contract comes to an end eventhough the land remains. (Wille – Landlord & Tenant 4th Ed. 249).
The petitioner claims restoration to the premises as statutorytenant. The position is no different in the case of statutory tenancy.When the building perished the statutory tenancy also ceased toexist. There cannot be a statutory tenancy in respect of bare land.The rent Laws do not inhere in the land after demolition of thebuilding but remain so long as it is there. (Giffry v. Silva(8>). A statutorytenancy endures so long as the building exists. So it does not survivethe destruction of it. (Woodfall – Landlord & Tenant Pg. 1217). Inthe circumstances of the instant case, even if Court exercised itsinherent powers to effect restoration, it would have compounded itsearlier mistakes, by doing what the law does not recognise, namely todeclare a tenancy where none existed.
Learned President’s Counsel submitted his client had the right tobe restored to possession of the bare land and thereafter he couldcall upon the respondent to erect a new building for him to occupy, orin the alternative the petitioner could himself erect a building with theapproval of the Rent Board. This submission is made firstly, on thepremise that there is a continuing statutory tenancy in respect of thepremises. As seen, the law is all one way, that is, against thepetitioner. Secondly, it is assumed that the Rent Board has such widepowers to order a landlord to erect buildings for a tenant’soccupation, or order the landlord to suffer the erection of a buildingon his land by the tenant. Neither Section 13 nor any other provisionin the Rent Act vests the Rent Board with such powers. Thissubmission therefore cannot succeed.
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Sri Lanka Law Reports
[1995] 2 Sri L.R.
Learned President’s Counsel submitted that the respondent hadby fraud, obtained a decree against a dead man. "When there is nolive defendant before Court, the Court has no jurisdiction to hear anddetermine the action. If the Court has no jurisdiction, it is of noconsequence that the proceedings had been formally conducted, forthey are coram non judice. A judgment entered by such Court is voidand mere nullity. Black-on Judgments. – P. 261. “When Court ismade aware of the defect in its jurisdiction, the question of rescindingor otherwise altering the judgment does not arise, since the judgmentis a nullity. When there is no act, there can be no question of thepower to revoke or rescind. One cannot alter that which does notexist. The exercise of power to declare such proceedings orjudgment a nullity is in fact an original exercise of the power of theCourt and not an exercise of the power of revocation or alteration.The proceedings being void, the person affected by them can applyto have them set aside ex debito justitiae in the exercise of theinherent jurisdiction of the Court. Section 839 of the Civil ProcedureCode preserves the inherent powers of the Court “to make suchorders as may be necessary for the ends of justice or to preventabuse of the process of Court.” This Section embodies a legislativerecognition of the inherent powers of the Court to make such ordersas may be necessary for the ends of justice. The inherent power isexercised ex debito justitiae to do real and substantial justice for theadministration of which alone Court exists. Sharvananda, J. inIttapana v. Hemawathie(9).
The petitioner has moved Court under Sections 328 and 662 of theCode. No application has been made for the Court to exercise itsinherent jurisdiction under Section 839 of the Code. As seen, whenCourt acts without jurisdiction, the entire proceedings are a nullity.Making an application under Section 328 or for that matter under anySection except Section 839 is inappropriate and futile. Even whenCourt acts on its inherent power under Section 839 of the Code tomake any order to meet the ends of justice. Court will, so far aspossible, put the aggrieved party in the position he would haveoccupied if the wrong order had not been made. Sirinivasa Thero v.Sudassi Thero (supra) Section 839 cannot be invoked to obtaincomplete reparation for the wrong done. Restitution will be effectedonly when such a course is legally and physically possible. When
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complete reparation is not possible, it is open to the aggrieved partyto seek appropriate relief by instituting a regular action for damagesfor loss wrongfully caused to him. In the event, the petitioner cannotas of right claim to be restored to the bare land, on which the buildinghe occupied earlier stood.
For the reasons given the applications of the petitioner aredismissed with costs.
S. N. SILVA, J. – I agree.
Applications dismissed.