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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,Mr. Justice Middleton, and Mr. Justice Wood Renton.
AEA<UAV.XXA GURl'NXAXSE v. DOX HENDRICK of al.
1). Colombo, 38,36o.
Art iuii by lessee against trespassers anti lessor—Misjoiuiler of parlies—Vo cause of action against lessor till judicial eviction.
A losuce who has been given vacant possession of the propertyicascil cannot, in the absence of any express covenant in the leaseempowering him to do so, make the lessor a party defendant to anaction brought by him against trespassers for declaration of titleas lessee and claim in the alternative damages against the lessor;the lessee has no cause of action against the lessor unless and untiliw suffers eviction by due process of law.
HE facts of this case are fully set out in the judgment of theChief Justice as follows:—
This is the plaintiff’s appeal against the dismissal of his action.The action as it was constituted at the date of the trial was by alessee against his lessor and against third parties (the added defend-ants), who had disputed his title; he alleged that .the lessor hadgranted him a lease of certain land for four years, and had agreedthat, should there be any dispute in respect of the demised premisesby reason of any flaw in his title, he would pay all damages to thelessee; that he paid the rent- in advance, and was in possession ofthe premises for seven months, when the first of the added defend-ants prevented him from possessing them, and the first and secondadded defendants granted a lease of an undivided half of the premisesto the third added defendant, who is in possession of the land; thathis lessor had title only to one-half of the premises, and he claimed» declaration of his right to possession for the term of his lease; andthat the added defendant be ejected, but, in the event of the Courtholding that his lessor had no right to lease more than half of the"laud, then his lessor should pay him damages.
The lessor in his answer said that the plaintiff is still in possession,alleged that his title was good, and that the action against him is notmaintainable until the plaintiff has. suffered eviction, and he alsoclaimed from the plaintiff in reconvention damages for waste. Theadded defendants denied that the plaintiff had been prevented frompossessing the land, and, while admitting the execution of the lease,the third added defendant denied that the defendant is or thatthey are iu possession of the land.
SJ. N. A 89103 (5/49)
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June30,1910 The Judge by oonsent decided first, two of the issues proposed, i.e.—Alagiawanna (1) The plaintiff having been put in possession of the land, is thisao**on maintainable without his suffering eviction? And (6) Is theBendrick plaint bad for misjoinder of causes of action as well as of defendants?
He decided the first issue in the negative and the sixth in the affirm-ative, and he dismissed the action.
The plaintiff appealed.
H. A. Jayewardene (with him B. F. de Silva), for the plaintiff,appellant.—In an action against a trespasser for restoration ofpossessionthe lesseemay joinanalternativeclaim against the
lessor forthe returnof the leasemoney (Dingiriya v. Payne,1
Fernando v. Waas 2). It was held in Silva v. Punchiralq,3 JuanFernando v. Fernando,* that in Courts of Bequests the two causesof action could not be joined in one suit, in view of the specialprovisions of section 805 of the Civil Procedure Code. In DistrictCourts the two causes of action might be joined in one suit withthe leave of the Court. See Silva v. Punohirala 3 and Appuhamy v.Dionis.* Counsel also referredtoAppuhamyv. Guneris * and
Menon v. Krishnan.7
In anyevent thedismissalofthe actionagainst the added
defendants (trespassers) is wrong.
Samarawickrama, for the respondent.—The plaintiff has no causeof action against the lessor until he has been legally evicted by athird party. See Appuhamy v. Guneris; * Voet 21, 1, 10; 21, 2, 1.At the date of the institution of this action the plaintiff had notsuffered judicial eviction; he therefore had no cause of actionagainst the lessor. The warranty which a lessor gives his lessee(vendor gives his vendee) is, really speaking, not so much one oftitle, but of possession. Fernando v. Waas 3 does not apply; thecause of action against the vendor in this case was the vendor'sfailure to put the vendee in possession.
Jayewardene, in reply.—Under the lease a cause of actionarises against the lessor as soon as there is a dispute in respect ofthe leased premises owing to a flaw in the lessor’s title. Partiesto the lease have substituted an express warranty for the impliedwarranty. Counsel cited 3 Maasdorp’s Institutes of Cape Law,p. 159.
Cur. adv. vult.
‘ 11908) 11 N. L. R. 105; 3 Bal. 299.*(1904) 3 Bed. 211.
* (1891) 9. S. C. C. 189.* (1909) 12 N. L. B. 382.
3 (1908) 1 S. C. D. 32.• (1904) 1 Bal. 8.
’ (1901) 1 L. R. 25 Mad. 399.
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June 30, 1910. Hutchinson C.J.—.
After setting out the facts, His Lordship continued:—
The ruling on the first issue cannot mean that the-action is notmaintainable against the added defendants, and it was no groundfor dismissing the action against them. And if it was right, and theaction was therefore rightly dismissed as against the first defendant,the sixth issue did not arise; the claim against the other defendantsremained, and ought to have been tried. If, however, the rulingon the first issue was; wrong and the ruling on the sixth was right,still the whole action ought not to have been dismissed, for if therewas, as the Judge held, a misjoinder of causes of action (because noleave had been obtained as required by section 35 of the Code), andalso a misjoinder of defendants, the mistake could, and ought tohave been, set right by striking out the first defendant and the claimagainst him.
The District Judge says that the law requires that a lessee placedin possession should first suffer eviction by due process of law beforehe is entitled to sue his lessor on the ground that he has been dis-possessed. Where there is no express covenant, doubtless that isgood law everywhere (unless the person dispossessing claims underthe lessor), but that is not the ground on which this lessee sues hislessor. The rule is put in another way: that a purchaser (whichterm includes lessee) who has been put in possession has no causeof action against his vendor (or lessor) until he has been legallyevicted by a third party by an action, of which he is bound to givenotice to the vendor (Appuhamy v. Ouneris l). But the words“ no cause of action ” are too wide; the rule cannot refer to allactions whatsoever, but only to actions on the express or impliedcovenant by the vendor on the sale of the land to the plaintiff; andin the case of an express covenant, you cannot say that there is nocause of action on it until you know what the covenant was. In anaction such as the present one the cause of action is the allegedobligation under the contract, or the alleged breach of contract; thedisturbance by a third party, or the ejectment by decree of the Court,is not the cause of action; and such a disturbance is no proof of abreach of a covenant by the vendor thav he has a good title, althoughejectment by decree would be evidence of it. And where the cove-nant is merely to defend the title, it is obviously implied that thepurchaser must give notice to the vendor when the title is attacked,because without such notice he could not defend his title. It issaid that the Boman-Dutch Law is not merely that a legal evictionis evidence of a breach of the vendor's covenant, but that it is theonly evidence, and that the purchaser cannot sue on the covenantor for a breach of it until he has been lawfully evicted; that is to say,
1(1904) 1 Bat. S.
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June 30,1910 that there has been no breach of covenant until he has been soHutchinson evicted. But it is impossible to say whether there has been a breachO. J. of covenant until we know what the covenant was. If it- was anAlagiauianna implied “ warranty of title,” i.e., a warranty by the vendor that hisQurunnanat) title is good, it is broken at once if his title is bad. But that i6 ineon-HendHck sistent with the rule that the purchaser cannot sue on the impliedcovenant till he has been legally evicted; if that rule is the law thenthe implied covenant must be, not that the vendor has title, butthat the purchaser shall not be legally evicted. If, however, thecovenant is an express undertaking to defend the title, thep it is notbroken until the vendor having been duly notified to do so. hasfailed to defend it; and in such a case, or where there is no expresscovenant, it is, I think, settled by many decisions of this Courtthat the purchaser cannot sue the vendor until that has happened.In Appuhamy v. Dionis,1 where the purchaser sued the allegedtrespasser to recover -possession and joined the vendor as defendant,it was held by my brother Middleton and myself that the Courtcould give leave under section 35 to join the two causes of action;but I think that the objection that the vendor was improperly suedought to have prevailed. It does not appear from the report that ourattention was specially directed to that objection (if it was taken),but we rather assumed that there was a cause of action against thevendor and dealt only with the question of giving leave to join thetwo causes of action. I have already stated what is the covenant inthe present case, and what is the plaintiff’s claim under it againsthis lessor. It is in Sinhalese, and the translation made of it by ourMudaliynr is ‘‘ that in the event of the dispute arising in respect ofthis lease owing to any flaw in my title, or any act committed by me,I have hereby promised and undertaken to be held responsible forany such dispute, and to make good to the lessee any losses incurredby him owing to such disputes.” The plaintiff alleges that a disputehas arisen in respect of the lease owing to a flaw in the lessor’s title,and that he has suffered loss owing to the dispute. It seems to methat there is here a good cause of action alleged against the lessor.In my opinion, therefore, there was a good cause of action allegedagainst both the lessor aud the added defendants. – And if so, theCourt had power under section 35 to-give leave to join the two causesof action, for this seems to be just the case contemplated by theexample to section 35. My brothers, however, think that the expresscovenant in this case amounts to no more than the ordinary expressor implied covenant to defend the title. If that view is correct Ithink that the action should be dismissed as against the first defend-ant with costs, but that it should go back for trial as against theadded defendants, and that the costs of the appeal as regards themehould be costs in the cause.
1(1909) 12 X. L. /?. 382.
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This was an action by a lessee against his lessor for damages, and Atagiawann*for a declaration that the lease is null and void on the ground that v j>OT|third parties, the added defendants, interfered with his possession Hendriekon the plea of title after he had possession for about seven months.
The action was originally brought against the lessor alone,. but byleave of the Court the plaint was amended and the added defendantsjoined. The claim was for ejectment and damages against the added,defendants, or, in the alternative, damages against the defendant.
The District Judge dismissed the plaintiff’s action, holding on thetwo issues, which it was agreed should be decided inthe first instance:
(1) that the action was not maintainable on the ground that theplaintiff having been put into possession of the entire land had notbeen evicted by due process of law before action brought; (2) thatthe action must fail in the absence of the permission of the Courtunder section 35 of the Civil Procedure Code to join the differentcauses of action.
As regards the second issue decided by the learned District Judge,
I think now, and I expressed the same opinion .in Appuhamyv. Dion is.1 that the learned Judge might well have allowedthe plaint to be amended at the time when he made his order,especially as he must have passed the plaint under section 46'of theCivil Procedure Code, both in its original form and as amended,provided that there is a cause of action existing against the vendor.
The main argument used by the learned counsel for the respondentin support of the judgment was that-, even if the joinder of the claimswere permitted, there was no cause of action by the plaintiff againstbis lessor until the lessee had been duly evicted from the premisesleased by judicial decree, and he founded this argument mainly onVoet 21, 1, 10; 21, 2, 1; and 21, 2, 20; 1 S. C. C. 54; 7 S. C. C.
141. The implied covenant in a sale or lease it was argued wasnot that the vendor or lessor had a good title, but that he wouldwarrant and defend the title which he purported to have in grantingthe conveyance or lease, and in granting vacant possession. Henceit was argued that no breach occurred to give a cause of actionagainst the vendor or lessor until they had failed to defend the title,and that the mere act of a trespasser would not give such a causeof action.
Voet 19, 1, 10 (Berwick’s translation 172) lays down that “ thethings sold are to be transferred along with their accessories tothe purchaser; that be shall acquire vacant possession of them,whether it has been expressly so agreed or not. " He goes on to say(p. 173): *’ But a vendor is understood to deliver vacant possessionwhen he makes such delivery of the things sold that it cannot bereclaimed by another person, and when therefore the purchaser wouldbe successful in a suit for possession."
1 (1909) 12 N. L. R. 382.
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June30,1910 As the learned Judges said in Mammadoe Lebbe v. Dingiralle Arach-MiDDMTotf chi,1 though the deed contains no warranty, the vendor in everyJ. transaction, where the property of one is transferred to anotherY.frT|p-mrr,-t(, for valuable consideration, incurs the implied obligation to warrant■Ourtmnanae the purchaser against eviction (2 Burge 554; T'oet 21, 2, 1; CenturaHendrick Forenais, book 4, ch. 19, 8. 11).
Eviction is defined by Voet 21, 2, 1 as “ the recovery byjudicial process of our property which the opponent has acquiredby a juatu8 titulua,” i.e., purchase or gift. After much consider-ation of another view of the question which I was inclined to take, Ithink we are bound by the Full Court judgment in Perera v. AtnarisAppu,*. which has been the law followed since 1878, and which 1think expresses the correct view of the question according to theBoman-Dutch Law.
Under that view of the law the action is not maintainable fordamages against the defendant at the stage at which it was brought, 'unless the special covenant in the lease allows it. After carefulconsideration of the wording of it, as translated by the Mudaliyarof the Court in my brother Wood Benton’s statement of the case,my opinion is that this covenant amounts to no more than theordinary, implied covenant to warrant and defend title. The lessoragrees to be responsible for any dispute, and to make good lossesincurred by the lessee owing to such dispute, i.e., he agrees to defendthe title and pay damages on failure. The plaintiff here obtainedvacant possession, which he held for seven months,"and then allegedouster as to part. He has no cause of action for damages againsthis vendor until he has been evicted by judicial process. His firstremedy is by possessory action against the added defendants, givingtimeous notice to his vendor or lessor to assist him, or he can summonthem as witnesses to support his title to possession. If he succeedsin doing this, he has got the vacant possession the vendor was boundto give him. If he fails in this, and he still believes in his vendor’sor lessor’s title, he can induce his vendor or lessor to bring an action.rei vindicatio against his opponents, or he may do so himself withtheir assistance as parties or witnesses, giving them timeous noticeof his intention to do so. If he does not bring an action rei vindicatio,or they do not assist him and he fails, it may again be a question ifthere has been a recovery against him by judicial process which willentitle him to bring his action for damages against his vendor orlessor. He may, on the other hand, on failure of his possessory-action, hold possession tn et armi8, and stand the brunt of an actionby his opponents giving his vendor timeous notice to warrant anddefend, which he refuses to comply with. In the meantime theremay have been much bloodshed, and even murder, as I fear oftenhappens, but our duty is to administer the Boman-Dutch Law as wefind it, regardless of the consequences it may have on a hot-blooded
1 (mi) 2 Lor. 102.
* (1878) 1 8. C. C.
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Eastern people. In the case of Appuhamy v. Dionis the question June30$191&was not raised, so far as I remember, whether the action lay against Mjdmbiowthe third defendant, but the point to which our attention wasdirected was whether the Court could give leave to join the causes Qwvimaneeof action under section 35 after the filing of the plaint, and I do notthink our decision went beyond a ruling to that effect on the assump-tion that there was a cause of action. I think, therefore, here thatno cause of action lay in the first instance against the originaldefendant here, and that it was not competent for the plaintiff tobring the original action against the first defendant, and thereforeno power lay in the Court to amend the plaint by adding the added .defendants. The added defendants, however, have not appealedagainst the order, and it would make the claim against them resjudicata if the action be entirely dismissed by us. The questionwhether the Court can act under section 35, I think, depends on therebeing a cause of action against the vendor or lessor for damages.
If there is no cause of action until eviction by judicial process, theexample given under section 35 could never arise; as if the lesseehad been duly evicted by judicial process, he could hardly bring anaction against the persons who had succeeded against him, althoughhe might sue his lessor alone for damages. The section, I think,clearly contemplates that the cause of action may be an ouster onlyon a claim of title, which the Roman-Dutch Law has been held todeny. The appeal must, therefore, in my opinion, be dismissed withcosts so far as it affects the lessor, but the action should be allowedto proceed against the added defendants.
Wood Renton J.—
In my interlocutory judgment, concurred in by Grenier J., ofJune 9, 1910, in which we sent this case for argument before a Benchof three Judges, the facts have been fully stated. I do not proposeto recapitulate them now, except in regard to any incidental pointswhere it may be necessary to do so for the purpose of dealing withmatters urged before us for the first time on the further argument.The problem that we have to solve may, I think, be compendiouslystated thus. A lessor gives his lessee vacant possesion of theproperty leased. The lessee alleges that he has subsequently been,ousted from possession by third parties not claiming or setting uptitle in any way under the lessor. The ouster has taken placewithout due process of law. The lessee, thereupon—I am takingthe action as it is presented to us in the amended plaint—sues thealleged trespassers and his lessor in one and the same action, claim*ing a declaration of his title as lessee to the possession of the landin question for the full term o.f the lease, ejectment, and damagesas against the trespassers, and, in the event of the Court holdingagainst the lessor on the question of title, damages as against him.
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June30,1910 No notice of the action was given to the lessor. He was simplyiyOOI> made a party defendant to the suit. The lease contains the follow-Rbfton J. ing covenant:" In the event of any dispute arising in respect of
Aiagiawannu this lease owing to any flaw in my title, or any act committed byOurwmanae me. I, the said lessor, have hereby promised and undertaken to beHet^trick held responsible for any such dispute, and to make good to thelessee any loss incurred by him owing to such dispute/'
On these facts the following questions arise for decision: —
Apart from the covenant just quoted from the lease, and
from the provisions of section 35 (1) of the Civil ProcedureCode, is the lessee entitled under Boman-Dutch Law tomaintain such an action as the present at this stageagainst his lessor at all ?
If that question be answered in the negative, does section
35 (1) of the Civil Procedure Code enable him to do so V
Does the covenant in .the lease impose upon the lessorany obligation wider than his obligation, whatever it maybe, under the common law ?.
Before attempting to answer these questions, I should perhapsdispose of at once several other incidental points involved in thecase that appear to me to present no difficulty. If there is no legalobjection under the common law of the Colony to the lessor beingbrought in as a defendant at this stage of the proceedings, I donot think that the provisions of section 35 (1) of the Code prevent. his joinder.
In view o.f the acceptance of the amended plaint by the Courtafter notice to, and in the presence of, parties, I would hold on thefacts that the joinder has taken place with the leave of the Courtwithin the meaning of sub-section (1) of section 35. Moreover, evenif such leave had not been given at the time of the acceptance ofthe plaint, the decision of the Supreme Court in Appuhamy v.Dionifi 1 is an express authority which justifies us in holding that itcan be given afterwards.
I agree, too, with Mr. Hector Jayewardene that the learned DistrictJudge was in an}' event wrong in dismissing, as he has done, hisaction against the alleged trespassers. In my opinion it ought tohe allowed to proceed as against them. –
I proceed now to deal with the points of law involved in the threequestions stated above. It appears to me that both the text of theBoman-Dutcli Law itself and its interpretation in Ceylon in a longand practically unbroken series of decisions establish as a rule oflaw the proposition that under such circumstances as those withwhich we have here to deal, a lessee who has been put into vacantpossession of the property demised cannot, in the absence of anexpress covenant by the lessor in the lease empowering him to do so,
J (100,9) 12 N. L. R. 382.
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bring his lessor into Court against the latter’s will as a defendant to June 30,1910an action brought by him against third parties, not claiming title Woodunder the lessor, who have ousted him from possession, unless and Renton J.until they have done so by virtue of the decree of a court of law.
Moreover, even where the conditions making such an action main- Gurunnana*tainable are otherwise present, the lessee has under Roman-Dutch g'tJdrkkLaw no remedy against his lessor, unless he has given him timelynotice of the legal proceedings taken against him by the adversethird parties, in order that the lessor may at his own discretion havean opportunity of intervening in the suit.
Most of the authorities bearing on this point are 'derived from thelaw of purchase and sale, but inasmuch as under the law of theColony a lease is a partial alienation of the property leased they areequally applicable, and this fact has not been contested by the appel-lant’s counsel, as between lessor and lessee. Voet (book SI, title3, 8. 1) expressly states that the vendor’s liability for warranty oftitle arises, inter alia, on the eviction of the vendee, and he defineseviction as follows: eviotio est rei nostrae, quam adversarius justotitido acquisivit, per judicem facta recupemtio.1
He proceeds to point out that the eviction against which thisimplied warranty exists is not tortious ouster by a stranger, or thatwhich takes place by virtue of some right conferred by the law,inasmuch as in the latter case the purchaser either knew or ought .to have known that the law conferred this light (see also Burge,vol. II., p. 554). Moreover, he clearly states that even after theeviction the remedy is not open to the vendee, unless he has giventimely notice to the vendor of the proceedings taken against himwith a view to secure his eviction, and supplied him with a copy ofthe plaint.
lllud prreprimis monendum venit, non aliter eum cut res evicta,nd versus auctorem reliqnosque supra recensitos de evictione expeririposse, quam si auctori tempestive facta fuerit denunciatio, litem motamesset addito secundum mores exemplo libelli par.actorem editi.2
Voet explains that the object of this rule is not to transfer the suitto the vendor and to. his forum, but to give the latter •‘■•he opportunityof intervening in the litigation and of undertaking the defence ofhis title in the forum of the party sued. When, but only when, apurchaser has complied with these conditions, he has, after eviction,recourse against his vendor, provided always that the purchaserhimself has not failed to defend, or if he has taken proceedings asplaintiff, to prosecute the suit, with, all his power. (Si- modo ipseemptor pro virili non defuerit defensioni), lest otherwise the vendorshould be considered to have been defeated rather on account ofabsence than because he had a bad case. It follows (i) that thewarranty implied under Roman-Dutch Law on a sale or in a leaseis a warranty against judicial eviction; (ii) that no action for breach
* lb. page 764 (1878 ed.) 21, 2. 520
1 Page 750 (1878 ed.).
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Jimt30,1910 of that implied warranty will lie unless and until there has beenWooD judicial eviction; and (iii) that even then the remedy is not open toRboton J. the purchaser or lessee unless he has given his vendor or lessorjtfgjfauiaiiiiin ^ormal notice of the eviction proceedings. That the action forOurunnanse breach of warranty depends upon the result of these proceedingsJTtiiirfnfrl and can be brought only after their termination is further shown bythe fact that there are special pleas open to the vendor or lessor,which can arise only after these proceedings have been concluded;
– for example, the plea that the purchaser or lessee has failed to defendthe suit against him with all his power, or (see section 30) that he hasfailed to give formal notice to his auctor of the Its mota. The lawis laid down in equivalent terms in the Censura Forensis:1 “ Thevendor in case of eviction is under an obligation to the purchaser, .if the thing should be lawfully claimed by any one, to defend him,or see that he is defended, against the person coming and claiminghis property.”
“ In order, however, that the vendor should be liable to the pur-chaser in case of eviction, whenever any one sues for the thingbought, the purchaser should give notice of the suit in time to hisvendor, in order that the latter may defend and protect him. Andif this notice is not given, no redress will be given him against hisvendor, unless the right of the person claiming the thing is notorious;and it appears that the vendor had no right, or the purchaser under-takes to prove this, in which case, even if notice is given, redress isgiven the purchaser against the vendor.” 1 2
The trend of judicial decision in the Colony is practically unbrokenin the same direction. I would refer simply to the decisionsof Phear C.J., Clarence J., and Dias J. in Perera v. AmongAppu,3 and of Clarence A.C.J. and Dias J. in Sinnar Scllappa■v. Supermaniar Saravana Muttu,* and there are numerous othercases, reported and unreported, to the same effect. Indeed, theappellant’s counsel in his argument expressly admitted thatunder the pure Roman-Dutch Law, apart from the special points asto section 35 (1) of the Civil Procedure Code and the scope of theexpress covenant, he could not complain of the decision of thelearned District Judge of Colombo on the point with which I amnow dealing.
I proceed, therefore, to consider the question whether section35 (1) of the Civil Procedure Code has made such an action as thepresent maintainable. For the purpose of this part of my observa-tions I am still dealing only with the implied obligation of warrantyagainst judicial eviction under the common law. In the case ofPieris v. Dochyhamy,s Sir Richard Morgan A.C.J. is reported to have■ said that the Dutch forms of proceeding are not now compulsory
1Barber and Maefayden's translation,* [1878) 1 S. C. C. 54.
book 4, Ch. 19, s. 11* [1888) 7 S. C. C. 141.
2lb. s. 14.5 Bam. 72-76, 102.
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-on tjie Supreme Court. Whatever may be the -scope of this obiterdictum, it can have no application to the issue now before us,which is not whether section 35 (1) of the Civil Procedure .Code haseffected an alteration in procedure, but whether it has created acause of action unknown to the common law. Apart from authority,the language of the sub-section itself does not support that view ofits scope. It deals expressly with the joinder of causes of action,but for what constitutes a cause of action we are thrown back on' thecommon law, and the definition of “ cause of action ” in section5 of the Code itself. With the common law I have dealt already. Insection 5 of the Code “ cause of action ” is defined as.the wrong for theprevention or redress of which an action may be brought, and includesthe denial of a right, the refusal to fulfil an obligation, .the neglect toperform a duty, and the infliction of an affirmative injury. In spiteof this definition, it seems to me that for the circumstances in whichan action “ may be brought,” or under which an ” obligation ” arises,we must still look to (he common law. It was suggested in theargument that the example appended to section 35 (1) of the Codeshows that a change in the substantive law was effected by thatsection. I cannot accede to (his suggestion. If the sub-section itselfis not sufficient to introduce the change referred to, the example is, Ithink, equally inefficacious for that purpose. It throws no light onthe all-important question whether the purchaser was ever put inpossession of the land sold, and whether there was any, and if so,what, express convenant on .the part of the lessor. It appears tome that the case of Fernando v. Waae1 is clearly distinguishable,inasmuch as there the plaint distinctly alleged that the vendor hadfailed to deliver to the purchaser peaceable possession of' the landin suit- If that fact were substantiated, there had already been,at the time of action brought, a breach of warranty of .title on thepart of the vendor, which gave the purchaser an immediate rightof action against him. The case of Ahamado Lebbe v. Maris Appu,2to which Mr. Hector Jayewardene referred us, is really against him,for in that case Wendt J. clearly asserts the right of a vendor .toformal notice of action. The case of Dingiriya v, Payne* is alsodistinguishable, in view of the fact .that .there the lessee had beendispossessed by a purchaser from .the lessor, and therefore thelessor had himself, at the time of action brought, derogated fromhis own grant, and .(hereby committed a breach of his impliedwarranty of title. The decision of Mr. Justice Sampayo inAppuhamy v. Ouneris* is a direct authority in favour of theview as to the scope of section . 35 (1) of the Civil Procedure Code,which I am here endeavouring to support. It derives support alsofrom the decision in Fernando v. Fernando,* where Layard C.J. and 1
1 (1891) 9 S. C. C. 189.a (1908) 11 N. L. R. 105 ; 3 Bal. 299.
* (1903) 9 hT. L. R. 289.* (1904) 1 Bal, 8.
* (1904) 3 Bal 211.
( 286 )
June30, 1910 Moncreiff J. held that such a claim against a lessor, as we are hereconcerned with, was no.t maintainable in the Court ot Bequests, andRenton 3indicated .that in then* opinion it was doubtful whether it couldAlagiawanna *3e mHintained in the District Court. In De Silva v. Punchirala,1Gurunnanse Wendt J. followed that decision. He added, however, that even inHendrick t^ie district Court an alternative claim against the lessor couldonly be preferred with the leave of the Court. “ I agree, ” he said.
“ in the view expressed by Layard C.J. and Moncreiff J. in Fernandov. Fernando,* that the claim against the lessor does not affect thealleged trespasser, and cannot be put forward in the action againsthim. ” I may point out in passing .that, in the case of MahamadoeLebbe v. Dingiralle Arachchi* it was held that, although the vendorin every transaction where the property of one is transferred toanother for valuable consideration is bound to warrant the title,this obligation only arises after eviction and after formal notice towarrant and defend, and that, where a purchaser has compromisedhis suit with third parties claiming adversely to him, he cannotsubsequently proceed against his vendor without showing that, heacted bona fide, that the claimants had a right to the land, and thatthe vendor had not a shadow of title. In the case of Abdul Ally p.OaderavaloeWithers J. defined the law in similar terms as regardsmovables. “ By Boman-Dutch Law every contract of goods sold anddelivered implies a warranty from the vendor to the purchaser thathi shall have the absolute and dominant enjoyment of the goods.Before, however, a purchaser can recover damages for a breach ofsuch warranty, or for the recovery of the price paid with interest.Ire must be evicted therefrom by the judgment of a competent Court,in an action between him and a third party, .that the goods belongedto that .third party. Nor is a judgment of that kind binding againstthe vendor unless he is called upon to warrant and defend the pur-chaser’s title. ” In Saibo v. Appuhamy 5 it was held by LawrieA.C.J.,^Withers J., and Browne J. that the interruption of a tenancyby strangers after the tenant has been put in possession by the land-lord is no answer To a claim for rent, unless such Interruption wasfollowed by eviction in due course of law. These decisions appearto me to be inconsistent with the view that any change in theBoman-Dutch Law as to .the circumstances under which a lesseewho has been put in possession can sue his lessor for breach ofimplied warranty of title has been effected by section 35 (1) of theCivil Procedure Code. Although the appellant in his amended plaintalleges that his lessor had title only to an undivided half of theproperty demised, I do not think that we are at liberty to considerthat allegation as setting up my case against the lessor’s titleother than that arising out of the ouster by alleged trespassers.Mr. Hector Jayewardene did not take this point on behalf of theappellant. He admitted that the text of the pure Roman-DutchLaw was against him, and he argued his case on the grounds that
1 (1908) 1 Ifeer. 32.1 (1904) 3 Bai. 211.
' (1893) 2 S. C. if. 128.
3 (1857) 2 Lor. 120.
* (1893) 2 C. L. if. 168,
( 237 )
>ui alteration ha.d been effected in that law by section 35 (1) of ^une^<t910
the Civil Procedure Code, and that the covenant in the lease as Wooo
to warranty of title was an express one, rendering the lessor liable Rsmox J.
under circumstances where no liability would- have existed under Alagiawanna
the common law.Qurunnanse
With regard to the covenant itself, Z am unable to accept the view Hendrickwhich Mr. Jayewardene pressed upon us. If he is right, the lessorimpliedly contracted, not only to allow himself to be sued before hislessee had been judicially evicted, but also to dispense with his rightto notice to warrant and defend title. In my opinion the languageof the covenant will not bear any such meaning. 'I would construeit merely as an undertaking on the part of the lessor to make goodany losses arising from disputes, which, when adjudicated upon bya competent- court of law, should have disclosed a flaw in his title.
As regards the lessor, I would affirm the decision of the learnedDistrict Judge, with costs here and below; the action to be allowedto proceed against the other parties.
Case sent back.
ALAGIAWANNA GURUNNANSE v. DON HENDRICK et al