Careem v Sivasubramaniam and another (Udalagama, J.)
SIVASUBRAMANIAM AND ANOTHER
COURT OF APPEALUDALAGAMA, J. ANDNANAYAKKARA, J.
CA 66/93 (F)
D.C. COLOMBO CASE NO. 7552/REAUGUST 1,2002
Civil Procedure Code, section 760A – appellant dies pending appeal -Substitution – Mode of filing application – Affidavit only – Is it valid? – Whois a "proper person to be substituted" – Purpose of substitution – Rules underArticle 136 of the Constitution – Rent Act, section 27.
The plaintiff-appellant instituted action under section 27 of the Rent Act to ejectthe defendant-respondent. The action was dismissed. The plaintiff appealed.Pending appeal, the plaintiff died. The petitioner moved court by filing an affi-davit to be substituted on the basis of a deed of gift in her favour.
Section 760A does not specify the mode of filing an application; an affi-davit only is valid; it need not accompany a petition.
In the event of the death of a party substitution would be for the pur-pose of representing the deceased solely for the purpose of prosecut-
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ing the action and nothing more.
The inquiry to determine a “proper person" under section 760A is oneto ensure the continuation of the appeal after the change of status inthe action and not to decide the rights of parties.
Per Udalagama, J.
“Although the Court of Appeal need to determine who the “proper person”
would be by reference to Rules made under Article 136, no such Rules have
been in fact made in regard to substitution in a pending case in appeal."
The “proper person” need not be a heir, executor or administrator butwould include a person who had been gifted with the premises by thedeceased on a deed of gift – he is substituted for only the specific pur-pose of prosecuting the appeal.
An APPLICATION for substitution pending appeal.
Cases referred to:
Dheerananda Thero v Ratnasara Thero – 60 NLR 7
Ghouse v Ghouse – (1988) – 1 Sri LR 25
Attorney – General v Chandrasena – (1991) 1 Sri LR 85
Lawana Gunasekera v Hemawathie & others – CA 476/95 (F) Cam 9.9.
A.A.M. Marleen, P.C., with Shanaas Maharooftor petitioner.
Harsha Soza for respondent.
October 29, 2002
The plaintiff-appellant filed D.C. Colombo case No.7552/RE 01under the provisions of section 27 of the Rent Act, No. 7 of 1972, interalia, to eject the defendant-respondent from the premises morefullydescribed in the schedule to the plaint.
The learned Additional District Judge dismissed the plaintiff’saction and the plaintiff appealed therefrom. While the appeal waspending the plaintiff-appellant died on or about 02.05.2000. The peti-tioner to this application moves this court for substitution in the roomof the deceased plaintiff-appellant to which application the defen-dant-respondent objects. This order pertains to that objection.10
Careem v Sivasubramaniam and another (Udalagama, J.)
The learned Counsel for the defendant-respondent raised 2objections to this application, namely, that there is no valid applica-tion before this court and that the deed of gift No. 381 dated
on which the petitioner claims title to the rights of theoriginal plaintiff-appellant is bad in law and that in any event thepetitioner is statutorily barred from making this application.
The submission of the learned Counsel for the defendant-respondent appears to be that in the absence of a petition accom-panying an affidavit admittedly filed of record that there is no validapplication for substitution.20
It is conceded that the applicable provision in an instance of achange of status of a party when an action is pending in the Courtof Appeal is the provisions of section 760A of the Civil ProcedureCode.
It is also undisputed that the said provisions do not specifythe mode of filing of such application and I would reject the con-tention of the learned Counsel for the respondent that an affidavitonly is not a valid application and that an application to rectify adefect in the record requires a petition to accompany an affidavit.
In the instant case the affidavit filed of record on 17.06.2000 con- 30tains all the necessary details including reasons necessitating thesubstitution. In the instant case the petitioner moves to be substi-tuted in the room of the deceased plaintiff on the basis of theaforesaid deed of gift. Importantly, annexed with the affidavit is therelevant certificate of death of the plaintiff-appellant, marked X1,confirming thereby the death of the original plaintiff-appellant, andconsequently that the record is rendered defective. It is alsoobserved that this court had on an earlier occasion, apparently toregularize the application consequent to this objection had direct-ed the petitioner to file a petition even though at a later stage 40which petition filed thereafter appears to be identical in respect ofthe averments appearing in the affidavit referred to above.Paragraph 7 of the affidavit refers to the relief claimed and theapplication of the petitioner is unambiguous.
I am inclined to the view that the basis for an application underthe provision of section 260A referred to above, in the event of thedeath of a party would be for the purpose of representing the
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deceased, solely for the purpose of prosecuting the action andnothing more. In this context the argument of the learned Counselfor the defendant-respondent challenging the application of thepetitioner for substitution on the basis that the original action beingone under the provisions of the Rent Act and that the action beingone of a personal nature and ought to abate on the demise of theplaintiff is a matter to be determined at the argument and I wouldhold that such matter would not be relevant to an inquiry to appointa “proper person’’to be substituted or entered in the record in placeof or in addition to the party who died as provided for by the provi-sions of the said section 760A.
This inquiry to determine a “proper person”, under the provi-sions of section 760A referred to above, in my view, is one toensure the continuation of the appeal after the change of status inthe action and not to decide the rights of parties.
I would also hold that the authorities as cited by the learnedCounsel for the respondent more particularly the facts as referredto in the judgments of Dheerananda Thero v Ratnasara Therd1)and Ghouse v Ghousefo would be relevant at the argument and tobe considered at this stage would be premature. As significantlyconceded by the learned Counsel for the defendant-respondent therelevant statutory provisions in section 760A as referred to aboveunder which substitution is effected during the pendency of anappeal is the provisions of section 760A of the Civil ProcedureCode and no other, and also as stated in the written submission ofthe learned Counsel for the defendant-respondent the Court ofAppeal would be making a determination on a question of fact onlyas to whether the petitioner is a “proper person” to be substituted inthe place of the deceased-appellant.
Although the Court of Appeal needs to determine who the“proper person” would be, by reference to Rules made under Article136 of the Constitution, it is conceded that no such Rules havebeen in fact made in regard to substitution in a pending case inappeal. It is also not disputed that such determination as to who the“proper person” to be substituted in the place of a deceased partywould be based, as stated earlier, on the opinion of the Court, on afinding of fact. I would also disagree with the learned Counsel forthe defendant-respondent that the affidavit filed by the petitioner on
CACareem v Sivasubramaniam and another (Udalagama, J.)201
17.06.2000 as referred to above, did not support the petition filed 3months later on the direction of court, as firstly there appears to beno such direction in the provisions of section 760A referred toabove, that such application need to be filed by way of a petitionand an affidavit. The authority of Attorney General vChandrasenaW cited by the learned Counsel for the defendant-respondent would not apply. Secondly, for the reason that the affi-davit already filed contains adequate material to enable court toconsider the application and as in any event the petition would onlyre-iterate the material averred in the affidavit, the necessity to file apetition in addition to the affidavit would not in any way prejudicethe defendant-respondent.
The petitioner is in any event seeking to be substituted in theplace of the deceased solely for the purpose of prosecuting theappeal (paragraph 7 of the affidavit) and I would disagree with thelearned Counsel for the defendant-respondent that the petitioner bythis application is seeking to represent the estate of the deceased.As would be directed by this court in pursuance of the applicationthe only order that this court could make would be that the “properperson” to be substituted in place of the deceased-appellant wouldbe the petitioner for the limited purpose of prosecuting the appealand nothing more.
In the circumstances this court would not deem it proper toconsider the rights of the petitioner to be so substituted vis-a-vis theproper adoption of the petitioner in accordance with the Muslim lawor the statutory bar as purportedly contained in the provisions ofsection 27 of the Rent Act referred to above.
This court would only consider whether or not the petitioner isin the opinion of court a proper person to be appointed in the placeof the deceased party, to prosecute the appeal. There appears tobe no allegation that the petitioner is mentally unsound or that sheis a minor unsuitable to be substituted in the place of the deceasedappellant to prosecute the appeal.
As held by this court on somewhat similar circumstances inLawana Gunasekera v Hemawathie & others S4) decided on09.09.2002- in the absence of any direction vide provisions of sec-tion 760A aforesaid, the “proper person" to be substituted need not
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be a heir, executor or administrator, but as also held in that case,a person who had been gifted with the premises, the subject mat-ter of the suit, by the deceased on a deed of gift which on the faceof the document, as in the instant case, appeared to have beenproperly attested and executed could be declared a “proper per-son” to be substituted in place of the plaintiff-appellant solely toprosecute the appeal.
I would allow with costs this application of the petitioned to be 130substituted in the place of the deceased-appellant solely for thepurpose prosecuting this appeal. It must also be mentioned that inany event a matter for decision at the argument proper would bethe rights of parties as at the date of the institution of this action andtherefore no prejudice could be caused to the rights of parties as atthe date of the institution of the action.
NANAYAKKARA, J. – I agree.