060-NLR-NLR-V-01-BUDDHARAKITA-TERUNNANSE-v.-GUNASEKARA.pdf
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1895.Sept. 27.
BUDDHARAKITA TERUNNANSE v. GUNASEKARA.
D. C., Colombo, letter B.
Joint lessors—action for rent by one lessor for his share of rent—subsequent
action by joint lessors—Splitting of cause of action—Civil Procedure
Code, s. 34—cancellation of Lease—rights of joint creditors.
A and B being joint lessors, A sued the lessee for his half shareof the rent on the lease for a certain period, making B a partydefendant to the action, and requiring them to show cause, if any, whyjudgment for half the rent should not go in favour of A. A recoveredjudgment. Subsequently both A and B sued the lessee for the otherhalf share of the rent for the above period, and for the whole of therent for a subsequent period, and for a cancellation of the lease.
Held, that this action was maintainable, and that it was not barredby section 34 of the Civil Procedure Code.
Held further, that in the case of joint lessors, each can sue the lesseeseparately for his moiety of the rent.
Held further, that when a lease contains the stipulation that, indefault of payment of rent by the lessee, the lessor should be at libertyto sue the lessee for a cancellation of the lease, the lessor is under noliability to seek a cancellation at the default, but that he may sue forand recover the rent at each of several defaults and sue for a cancella-tion of the lease at any subsequent-default.
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Per Withers, J.—When creditors have joined in stipulating for thepayment of a sum of money, each is entitled to his quota of that sum.When several debtors join in promising to pay a sum of money, eachis liable to pay a quota of that sum of money, and no more. Thishappens even when a plurality of debtors or creditors intervene by thedeath of a single creditor or debtor leaving several heirs-at-law.
rpHIS was an appeal from an order of the Court below rejectinga plaint on the ground stated at length in the judgment ofhis Lordship the Chief Justice.
Pereira, for plaintiff appellant. The District Judge has heldthat the present action is barred by section 34 of the CivilProcedure Code. That section enacts that every action shallinclude the whole of the claim which the plaintiff is entitledto make in respect of the cause of action, and it applies to thecase of a single plaintiff suing for a part only of his claim inrespect of one cause of action, and then suing for the remainderin a separate action. In the present case, however, there was nosplitting of the cause of action. The first plaintiff could onlyhave sued for a moiety, in the first action, of the rent for theperiod involved in that action, and now both the plaintiffs suefor the other moiety for that same period and for the whole ofthe rent for a subsequent period. Our law allows a joint creditorto sue the debtor for his share only of the debt. He cited VanLeeuiven, bk. V.,-chapter 3, section 11, p. 524, of translation of1820;Pothier on Obligations, vol. I.,p. 144 {Evans's translation) ; Vander Linden, book /., p. 203 (Henry's translation).
Cur. adv. vult.
27th September, 1895. Bonser, C.J.—
This is an appeal from an order rejecting a plaint by Mr.Templer, Acting District Judge of Colombo. The learned DistrictJudge has not followed the procedure laid down by section 48 ofthe Civil Procedure Code, for he has not specified the date whenthe plaint was presented and rejected, or the name of the personby whom it was presented, and whether such person was plaintiffor proctor as required by that section.
The action was an action by two joint lessors of certain im-movable property against the lessee, and it claimed on the part ofone of the plaintiffs the half share of the rent for a certainperiod of time, and on behalf of both plaintiffs the whole rent foranother later period, and the cancellation of the lease for a breachof covenant. The plaint was rejected on the ground that one of theplaintiffs had Bued and obtained judgment for a moiety of the rentin respect of the period first mentioned.
1896.
BoNsn, CJ.
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1886. The learned Acting District Judge said that that concluded thewitoim j. other plaintiff from suing for his share ; that the first plaintiffhad no right to sue for a moiety of rent; but that having done so,section 34 of the Civil Procedure Code barred the claim of his co-lessor for rent, and also the claim of both to have the leasecancelled. The Acting District Judge held that the lessors werejointly entitled to the rents, and therefore that both parties mustjoin in suing for it.
If the law of England were in force here that would have beena correct decision, but the law of thiB Colony appears to beotherwise. The Roman-Dutch lawyers do not seem to havefavoured joint obligations. They considered obligations as several,unless there were express words showing that the obligation wasin solidum, or it so appeared from the nature of the case.
With regard to joint leases, I find it laid down by Voet, bookXIX., tit. 2, section 21, “ Locciti actio est -personalis bonne fidei,“ quce locatori datur, . . . . si jilures locaverint, singulis pro sun“parte; contra conductorem, et, si plures sint, contra singulosprourata; nisi atiud nominatim pacto actum sit, aut apparent,“ locatorem singulorum personas in solidum rcspexisse et ita duosUpluresve in solidum fecisse reos locationis."
That seems sufficient to dispose of the objection to this plaint,and shows that the plaintiff was justified in suing alone for hisown share of the rent. The other objection, that an action cannotbe maintained for the cancellation of the lease, because an actionhad been brought for rent, is an objection which I cannotunderstand.
A lessor who has been driven to sue for his rent is quite atliberty after having borne with the lessee’s default for a timeto sue for a cancellation of the lease, and thus get rid of anundesirable tenant.
Withers, J.—
I think the District Judge has quite misconceived the provisionsof section 34 of the Ordinance when he applied them to this case.As to the question of law, I understand the Roman-Dutch Lawto be as follows :—
The payment of a sum of money is a divisible operation, andwhen creditors have joined in stipulating for it, each is entitled tohis quota of that sum of money. When several debtors join in pro-mising to pay a sum of money, each is liable to pay a quota of thatmoney and no more. A plurality of debtors or creditors may haveexisted at the time that the stipulation or promise was made, ormay Bupervene by the death of a single creditor or debtor leaving
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several heirs-at-law. It makes no difference. It is only when 1895.the intention of the contracting parties is clearly expressed that bsowne, A J.a divisible obligation shall be treated as an indivisible one, thatone of several creditors cannot sne for a quota, and one of severaldebtors cannot discharge his obligation by paying a quota.
The passage from Voet cited by the Chief Justice disposes ofthis case. To fortify my statement of the general law I will adda passage from the Digest (Corpus Juris Civilis),lib. XLV., tit. 2,fr. 11, sections 1 and 2. De duobus reis constituents.
Section 1.—Cum tabulis esset comprehensum, ilium et iliumcentum aureos stipulatos, neque adjectum, ita ut duo rei stipu-landi essent, virilem partem singuli stipulati videbantur.
Section 2.—Et e contrario cum ita cautum inveniretur, totaureos recte dart stipulatus cst Julius Carpus; spopondimus egoAntoninus Achilleus, et Cornelius Dius: partes viriles deberi :quia non fuerat adjectum singulos in solidum spopondisse, ita utduo rei promittendi Jierent.
This is an ordinary contract of lease by two lessors stipulatingfor the payment of a certain sum by way of rent, and it comesunder the ordinary law of stipulation by more than one creditor.
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