085-NLR-NLR-V-61-ASIYA-UMMA-Appellant-and-KACHI-MOHIDEEN-Respondent.pdf
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Asiya TJrrvma v. K.achi J^Lohideen '
1959Present: Sinnetainby, J.
ASIYA UMMA, Appellant, and KACEEI MOHIDEEN, RespondentS. C. 226—G. B. Colombo, 68230
Appeal—Notice of tendering security—Omission to address it to the respondent personally—Absence of appellant's signature—Effect—Civil Procedure Code, s. 756 (J) (3),Schedule I, Farm 126.
Pent Restriction Act, No. 29 of 1948—Section 13 (1) (ti)—“ Using the premises for animmoral or illegal purpose **.
(i) Where notice of tendering security in appeal is not drawn tip strictlyin accordance with Form No. 126 of the First Schedule of the Civil 'ProcedureCode but is substantially in conformity with it, an order of abatement shouldnot be entered. In any event, relief will be granted in such a case undersab-section 3 of section 756.
Notice of tendering security in appeal was addressed to the respondent’sProctor and not to the respondent. It was also not signed by the appellantbut was issued by the Chief Clerk on the orders of Court.
1 (1905) 9 N. L. R. 302.
* (1930) 32 N. L. R. 46.
SnSTN'ETAMB'V. J.—Asiya Umma v. Kochi Mohideen .
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Held, that relief should be granted under section 756 (3) of the Civil ProcedureCode.
Sivaffurunathan v. Doresamy (1951) 52 IT. L. R. 207, considered.
(ii) Section 13 (1) (d) of the Rent Restriction Act is restricted to oases inwhich a on tenant has been evicted of keeping or using the premises let for andiegal purpose. Conviction, therefore, in respect of an illegal act, e.g. unlawfulpossession of cocaine, cannot come within its compass.
Appeal from a judgment of the Court of Requests, Colombo.
M. Markhani, for defendant- appellant.
E. It. S. It. Coomaraswamy, with E. B. Vannitamby, for plaintiff-respondent.
Gur. adv, vult.
November 19, 1959. Srtnsretamby, J.—
A preliminary objection was taken to the hearing of this appeal andI shall first deal with it.
It was contended for the plaintiff-respondent that the notice -oftendering security was bad in as much as it was not drawn up inaccordance with form 136 of the first schedule to the Civil ProcedureCode. The notice in this case was addressed to the proctor for therespondent and required him to take notice “ that the defendant-appellant moves to deposit the sum.of Rs. 26 being costs which may beincurred by the respondent in appeal and will on the 19th of Decemberdeposit in Court a sum sufficient to cover the expenses of serving noticeof appeal ”. The objection is that this notice should have been addressedto the plaintiff and not to the plaintiff’s proctor. It was also notsigned by the defendant but issued by the Chief Clerk on the orders ofCourt. My attention was drawn to the decision-in 3ivagurunathan v.Doresamy1 wherein this Court expressed the view that the notice oftendering security required by 756 of the Civil Procedure Code shouldbe as prescribed in form 126 of the first schedule. The decision, however,while it stresses the need to observe and adopt the prescribed form,does not penalise the appellant for non-compliance by directing thatan order of abatement should be entered. It seems to me that evenif the form of notice is not strictly in accordance with the prescribedform it is sufficient if it is substantially the same and in any eventfailure to observe or to adopt the prescribed form is not of such greatmateriality as to preclude the Court from granting relief under Section756 sub-section 3. I do not, therefore, propose to consider this matterany further, as, in my view, even if the form has not been strictly observed,relief should be granted.
1 {1951) 52 N. L. R. 207.
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sliffW l<iTAltrRTr J.—Asiya TJm/ma v. Kochi Mohideen
I now come to the main question that arises for decision in the case.The plaintiff sued the defendant in ejectment and in order to dispensewith the authorisation of the Kent Restriction Board alleged that thedefendant was in arrears .of rent.- Subseqnently, he amended his plaintand alleged also that the defendant had been convicted of using thepremises for an illegal purpose, namely for the purpose of keeping orpossessing cocaine without a licence from the Director of Medical andSanitary Services. Section 13 (1) (d) of the Rent Restriction Act permitsa landlord to institute an action in ejectment without authorisation,if the tenant had been convicted of using the premises for an illegalpurpose. The plaintiff, at the hearing, abandoned the question ofarrears and restricted himself to this averment. The evidence showedthat the defendant was convicted of possessing three small bottles ofcocaine on the 11th December, 1957, which is after the date on whichthe action was instituted. In the lower Court the argument of Counselwas directed to the question of whether a conviction after institutionof action would be sufficient to entitle the plaintiff to dispense with thepermission of the Rent Restriction Board, but I do not -think it necessaryto go into that question.
Section 3 (1) (d) is restricted to cases in which a tenant baa been con-victed of keeping or using the premises let for an illegal purpose. Theconviction in this case was certainly not in respect of the use or the purposefor which the premises were kept. The conviction was for possessionof cocaine. There axe certain cases in which the use of a house orpremises for a certain purpose is itself an offence, quite independent ofthe purpose which may or may not be an offence ; instances that cometo mind axe the keeping or nsing a house for unlawful gaming or keepingand using premises as a brothel. These axe offences in themselvesindependent of the purpose for which the premises axe themselves put.Unlawful gaming, is by itself an offence sepaxate and independent of theoffence of using a building or premises for that purpose : the formeris punishable under Section 2 of the Gaming Ordinance while the latteris punishable under Section 3. Likewise, under the Brothels Ordinance,a person who keeps Or uses the premises for the purpose of a brothel ispunishable under Section 2 of the Ordinance (Chapter 25 of the Legis-lative Enactments). There is thus a clear distinction between a con-viction in respect of an illegal act and a conviction for keeping premisesfor the purpose of an illegal or immoral act. What the section of theRent Restriction Act contemplates is a conviction for nsing the premiseslet for an illegal purpose and not the conviction of an occupant thereinof an illegal act.
I, therefore, hold that the conviction of the tenant in any case doesnot come within the compass of Section 13(1) (c2) of the Act. The appealis accordingly allowed. The judgment of the learned Commissioner isset aside and plaintiff’s action dismissed with costs both here and in theCourt below.
Ajypeaf- allowed.