095-NLR-NLR-V-15-CATHIRAVELU-v.-DADABHOY.pdf
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Present: LasceUes C.J. and Wood Renton *1.
CATHIRAVELU o. DADABHOY.
116—<D. C. Colombo, 33,560.
Issue whether answer discloses a defence—No evidence taken—Court has
power to dismiss action on issue of law only—Civil Procedure Code,-
s. 147.
The plaintiff raised the issue, Does the answer disclose a defenceto the plaintiff’s claim?
NjO evidence was taken, and no admissions were recorded* TheDistrict Judge answered the issue in the negative.On appeal it
was contended that the District Judge had no right to dispose ofthe case on an issue in regard to which no evidence had been taken*
Held, that the Court had the power to do so.
Wood Renton J.—Section 147 expressly enables the courts offirst instance to dispose of a case on issues of law alone,, and for thatpurpose to postpone the settlement of issues of fact until after the-issues of law have been determined.
Gauder v. Gander 1 commented upon.
fJIHE facts are set out in the judgment of Wood Renton J.
Bawa, K.C. (with him J. Joseph), for the defendant, appellant.
Walter Pereira, K.C. (with him F. M. de Saram), for the-respondent.
Cur. adv. vult.
June 26, 1912. Wood Renton J.—
The plaintiff-respondent sues the defendant-appellant in this-action as his lessee, under a monthly tenancy, of No. 31. Sea street,Colombo, alleging that the tenancy had been determined by noticeto quit, and praying for the ejectment of the- appellant from the*premises leased, and for compensation at the rate of Rs. 125 amonth—the monthly rent under the tenancy—in respect of theappellant's occupation of the premises as an over-holding tenantfrom September 1, 1911. The appellant in his answer stated thatthe premises had been let to him for a period of five years fromJune 1, 1910, at a rent of Rs. 125 a month; that the respondentreceived from him a sum of Rs. 375 in advance; and that he is,therefore, not entitled to have him ejected from the premises. The-respondent admits in his plaint that he did receive the Sum ofRs. 375 in advance from the appellant; alleges that it was agreedthat that sum should be set off against the last three months of themonthly tenancy; and says that he has appropriated the amount in*respect of the rent- due to him by the appellant for June, July, and’August, 1911. As already mentioned, the compensation claimed by• i (1909) 1 Cur. L. R. 11..
1912.
27-
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1912.the appellant in this action dates from September 1, 1911. The
Woodagreement of tenancy on which the respondent relies is in writing,
Benton J. js an agreement for a monthly tenancy alone, and is not notariallyCathiravelu executed. In the case of a. monthly tenancy, of course, notarial*. Dadabhay execution is unnecessary. Such execution would, however, benecessary in the case of a lease for a period of five years. Theappellant alleges that the agreement between himself and therespondent was, in the first instance, verbal. The terms of thatalleged agreement I have already partly stated. The only otherterms to which it is necessary to refer are that the appellant was tohave an option to terminate the agreement at any time withintwelve months from June 1, 1911, on payment to the respondent ofa sum of Rs. 100 on account of certain improvements which therespondent undertook to effect on the premises, and that all taxeswere to be paid by the respondent. The appellant states that onthe conclusion of this verbal agreement he requested the respondentto “ make the same legally effective and binding by executing thenecessary, documents that the respondent thereupon caused theagreement sued on to be executed in the English language, of whichthe appellant was ignorant, and thereafter made additions to it inwriting in Tamil. The allegation in the answer next following isimportant: —
" The plaintiff represented to the defendant that the saiddocument was valid, effectual, and sufficient in law tosecure to the defendant the due carrying out of theterms of the said agreement. The defendant, relying‘on the said statement and representation of the plaintiff,handed the plaintiff a cheque for Rs. 375.’’
The appellant also states that he entered on the premises leasedin pursuance of the agreement. On the grounds stated in bisanswer the appellant prayed that the respondent’s action might bedismissed. A number, of issues were framed. But the case wasdecided, without any evidence having been taken;, on an additionalissue suggested by Mr. de Sampayo, the respondent’s counsel,
“ Does the answer disclose a defence to the plaintiff’s claim? ”The learned Additional District -Judge answered this question in thenegative, and dismissed the appellant’s action with costs. Thegrounds of this decision are in substance two: (1) That under thelaw of Ceylon the entry by the appellant on the premises demisedunder the informal lease was not such a part performance of thealleged agreement relied upon by the appellant as would entitle .him to succeed, even if he were able to establish it as a fact; and (2)that no estoppel could arise against the respondent on the allegationsin the paragraph of the answer which I have set out in full above,inasmuch as the alleged misrepresentation was one of law and not offact, and the appellant was not entitled to plead ignorance of law.The reasons given by the learned District Judge iij support of the
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first of these findings are conclusive, and the appellant's counsel1912.
•stated to us in the argument of the appeal that he did not proposeWorn
to challenge them. He contested, however, relying on the decision Renton J.-of Wendt J. and Sir John Middleton J. in Gander v. Gander,l the Cathiraveluright of the District Judge to dispose of the case on an issue in regard v• Dadakhoyto which no evidence had been taken, and he further urged that themisrepresentation relied upon by the appellant was a misrepresen-tation of fact and not of law, and that, therefore, the plea of estoppelwas maintainable. The decision of the Supreme Court in Gauder v.
Gander,l in which it would appear from the headnote to have beenheld that a Court cannot in Ceylon decide a preliminary issue asto whether the answer disclosed a defence to the action, on theassumption that all the averments in the answer are correct, mustclearly be limited to the particular facts with which the Judgesdeciding that case had to deal. Section 147 of the Civil ProcedureCode expressly enables the courts of first instance to dispose of acase on issues of law alone, and for that purpose to postpone thesettlement of the issues of fact until after the issues of law have beendetermined. It would, in my opinion, have been contrary to theexpress language of section 147 of the Code, and highly inconvenientin practice, if the Supreme Court had laid down any such generalrule as is stated in the headnote to Gauder v. Gauder.l I maymention that that case was subsequently cited in the argument ofan appeal before Sir John Middleton and myself, and that we bothinterpreted it in the sense which I have just stated. Our decision isunfortunately unreported, and I have myself no note of it. I donot think that the first point taken by the appellant's counselagainst the judgment under appeal can be maintained. Withregard to the second point, however, I would allow the appeal to alimited extent. The appellant's answer as drawn is ambiguous,and is expressed in terms which gave the District Judge some groundfor holding that the misrepresentation alleged against the respondentwas merely one of law. At the 3ame time the present case is animportant one. It is stated in the petition of appeal that the valueof the unexpired term of a lease for five years of the premises inquestion would be Rs. 6,000. Moreover, there are circumstancesin the case entitling the appellant to further inquiry. In proof ofthis statement, I will merely ?efer for the present to. the fact that,while the actual agreement sued on—a document written in theEnglish language, which the defendant says he does not under-stand—is one for a monthly tenancy only, the writing on the backof that agreement in Tamil—a ^language which the appellant doesunderstand—is shown by the certified translation filed of record, thecorrectness of which was not impeached at the argument, of theappeal, to have been an agreement for a five years' lease, determin-able at the instance of the appellant alone, under the circumstancesalleged by him in his answer,
i 11909) 1 Cur. L. R. 11.
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1918.
WoodRenton J.
Oathiravduv. Dadabhoy
In view of the admission of the appellant’s counsel that he wouldnot challenge the judgment under appeal in so far as it deals withpart-performance, that question must be regarded as finally decided.But I would set aside the decree of the learned District. Judge givingthe respondent judgment in terms of the prayer of the plaint, andsend the case back for further inquiry and adjudication on issues4, 5, and 6 at pages 20 and 21 of the record. Under issue 6 onlyestoppel by misrepresentation of facts may be raised. I haveomitted the issues bearing on the questions whether the action, canbe maintained, of part performance, of dolus malus, which is amplycovered for the purposes of the present case, by the issue as tofraud, and as to whether the appellant is entitled to call upon therespondent to execute a valid lease. The appellant will be atliberty to amend his answer if the Court considers such an amend-ment necessary; and he ought, I think, to be allowed, if he is soadvised, to plead non est factum, and to claim damages against therespondent in reconvention.
As the language of the appellant’s own answer has given rise to agood deal of the difficulty in this case, I would leave all costs,including the costs of the appeal, to abide the event.
Lascelles C.J.—
I entirely agree. The case is one in which further inquiry isnecessary in the interests of justice.
Sent back.
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