022-SLLR-SLLR-2005-V-2-CHANDANA-HEWAVITHARANE-vs-URBAN-DEVELOPMENT-AUTHORITY-AND-ANOTHER.pdf
CA
Chandana Hewavitharane vs.
Urban Development Authority and Another (Wimalachandra J.)
107
CHANDANA HEWAVITHARANE
vs.
URBAN DEVELOPMENT AUTHORITY AND ANOTHER
COURT OF APPEALWIMALACHANDRA J.
A. NO. 1490/2003(REV.)
C. COLOMBO 6209/SPLDECEMBER 3, 20, 2004JANUARY 31,2005
Civil Procedure Code – Section 395 – 760(A) – Substitution in the Court ofAppeal – Supreme Court Rules – Proper person-is it the Legal Representative?Executor – de-son tort?-Does the cause of action survive to the heirs? – LexAcquilla – Patrimonial loss – Constitution Article 136
The Plaintiff Petitioner sought to revise the Order made by the trial Judge,where he had dismissed the Plaintiff s action, while the application in Revisionwas pending the original Plaintiff died and the son filed papers to be substituted.The Respondent objected to the application on the ground that –
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the party proposed is not the legal Representative;
cause of action does not survive to his heirs.
Held:
The procedure to be followed where at any time after the lodging of anappeal in any civil action the death of a party to the appeal occurs, isspelt out in Section 760A of the Civil Procedure Code;
Section 760(A) gives the Court of Appeal a discretion to determine, whoin the opinion of the Court, is the proper person to be substituted. TheCourt may exercise its discretion in the manner provided in the Rulesmade by the Supreme Court.
Section 760A should be read in conjunction with Supreme Court Rule38, and the proper person should be the legal representative and byjudicial interpretation includes ‘an executor de son tort – in any event, hehas obtained Letters of Administration while the Revision Applicationwas pending.
The original Plaintiff filed action against the Defendants to recover acertain sum of money as damages for the demolition of the Petitioner’sbusiness premises. The Plaintiff had contended that, as a result of thedemolition of the Business premises his income from the businesswas lost along with his property which was lying at the premises.Thereby the value of his estate diminished causing patrimonial loss.
Held further:
If the business had continued it would have devolved on his heirs,therefore the heirs of the. Plaintiff have a right to obtain damages fromthe Defendants.
'Where the wrongful loss has caused patrimonial loss and comeswithin the principles of lex acquilia, the action does not lapse with thedeath of the Plaintiff before litis contestatio, but enures to the benefit ofthe heirs.’
This is not an action to establish the personal Rights of the Plaintiff.
In the matter of an Application for substitution under Section 760A.
Cases referred to :
Dheeranada Therovs. Ratnasara Thero – 60 NLR 7
Ramsarup Das vs. Ram ashwar Das – 1950 AIR (Patna) 184
Fernando vs. Livera – 29 NLR 246
I. S.de Silva for Plaintiff Petitioner
Vikum de Abrew, S. C. for 1st Defendant-Respondent.
CA
Chandana Hewavitharane vs.
Urban Development Authority and Another (Wimalachandra J.)
109
Ms. M. de. Silva for 2nd Defendant Respondent.
cur. adv. vult.
March 4, 2005WfMALACHANDRA J.
The plaintiff-petitioner plaintiff) filed this application in revision from theorder of the learned Additional District Judge of Colombo dated 21.08.2003whereby the learned Judge dismissed the plaintiff's action. Whilst thisapplication in revision was pending the original plaintiff died leaving his heirs,the proposed party to be substituted in place of the deceased plaintiff, his wifeand two daughters. The first defendant-respondent (1st defendant) filedobjections to this substitution.
The first defendant has objected to this substitution on two grounds.
the party proposed to be substituted (the petitioner) in place of thedeceased plaintiff has no legal status in that he is not the legalrepresentative of the deceased plaintiff.
the cause of action does not survive after the death of the originalplaintiff.
I shall first deal with the first ground of objection urged by the first defendant.The learned counsel for the first defendant submitted that since the petitionerhas not obtained the letters of administration he has no locus standi tointervene as he is not the legal representative of the deceased plaintiff.
Section 395 of the Civil Procedure Code deals with the substitution of thelegal representative of the deceased plaintiff in the District Court, on the deathof the sole plaintiff.
The procedure to be followed where at any time after the lodging of anappeal in any civil action the death of a party to the appeal occurs, spelt out inSection 760A of the Civil Procedure Code. Section 760(A) states as follows :
“Where at any time after the lodging of an appeal in any civil action,proceeding or matter, the record become defective by reason of thedeath or change of status of a party to the appeal, the Supreme Courtmay in the manner provided in the rules made by the Supreme Courtunder Article 136 of the Constitution determine, who, in the opinion of thecourt, is the proper person to be substituted or entered on the record inplace of, or in addition to, the party who had died or undergone a change
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of status, and the name of such person shall thereupon be deemed to be
substituted or entered on record as aforesaid.”
The Section 760(A) gives the Court of Appeal a discretion to determine,whom in the opinion of the Court, is the proper person to be substituted inplace of the deceased plaintiff. The Court may exercise its discretion todetermine who is the proper person to be substituted in the manner as providedin the rules made by the Supreme Court under Article 136 of the Constitution.Next I shall refer to the relevant rule of the Supreme Court Rules published inthe Gazette of the Republic of Sri Lanka (Extra Ordinary) No. 665/32 – June 7,1991.
Rule 38 is relevant to this application. It reads as follows. :
“Where at any time after the lodging of an application for specialleave to appeal or an application under Article 136, or a notice ofappeal, or the grant of special leave to appeal, or the grant of leave toappeal by the Court of Appeal, the record becomes defective by reasonof the death or change of status of a party to the proceedings, theSupreme Court may, on application in that behalf made by any personinterested, or ex mero motu, require such applicant, or the petitioneror appellant, as the case may be to place before the Court sufficientmaterial to establish who is the proper person to be substituted orentered on the record in place of or in addition to the party who hasdied or undergone a change of status.
Provided that where the party who has died or undergone a changeof status is the petitioner or appellant, as the case may be the Courtmay require such applicant or any party to place such materia) beforethe Court.
The Court shall thereafter determine who shall be substituted oradded, and the name of such person shall thereupon be substituted,or added, and entered on the record as aforesaid.
Nothing hereinbefore contained shall prevent the Supreme Court itselfex mero moto, where it thinks necessary, from directing thesubstitution or addition of the person who appears to the Court to bethe proper person therefor.”
It seems to me that section 760(A) should be read in conjunction with Rule38. Accordingly, the Court shall determine the person to be substituted in placeof the deceased plaintiff who appears to the Court to be the proper person.
In my view the proper person should be the legal representative of thedeceased plaintiff. By judicial interpretation the term “legal representative” has
CAChandana Hewavitharane vs.Ill
Urban Development Authority and Another (Wimalachandra J.)
been extended to include “executor de son tort." Any person who intermediuswith the property of a deceased person or does any other act characteristic ofthe office of executor by performing duties which are normally those of a.legalrepresentative can be regarded as ‘executor de son tort’.
The party proposed to be substituted (petitioner) in place of the deceasedplaintiff (petitioner) is the son of the deceased plaintiff. The other heirs are thedeceased plaintiff's wife and daughters. The petitioner filed the petition andaffidavit in the District Court of Mount Lavinia seeking Letters of Administrationto administer the estate of his father, the deceased plaintiff, (vide the documentmarked “XI”) at the same time, he sought the substitution in place of thedeceased plaintiff, in the revision application in this court. The petitioner alsoannexed the documents marked X2(a), X2(b), X2(c) and X2(d) in proof ofpublication of the notice relating to the application made by the petitioner undersection 528 of the Civil Procedure Code. The petitioner in his counter objectionsstated that all the other heirs of the deceased plaintiff had consented to hisappointment as the administrator of the estate of the deceased. In any eventwhilst this inquiry into the objections filed by the first defendant to the saidsubstitution was pending the Letter of Administration were issued to thepetitioner on 02.09.2004 and a certified copy of the same was filed with themotion dated 12.10.2004. Accordingly, the petitioner has now obtained theLetters of Administration and is now entitled to be substituted in place of thedeceased plaintiff.
The second argument of the learned counsel for the defendant is that thecause of action does not survive to the heirs of the deceased plaintiff. In supportof his argument he cited the case of Dheerananda Thero vs. Ratnasara TheretoIn this Supreme Court case the plaintiff’s suit against the defendant was mainlyto establish his personal right to an office and the cause of action was purelypersonal. It was held in this case that if the action was for a declaration ofstatus simplicitor, the cause of action would not survive.
In the instant case the facts are different from the aforesaid case ofDheerananda Thero vs. Ratnasara Thero (Supra). This is not an action filed toestablish the personal rights of the plaintiff. The plaintiff filed this action againstthe first and second defendants to recover Rs. 50,000,000 as damages fromthe defendants for the demolition of the petitioner’s business premises whichwas situated at 122, Sir James Peiris Mawatha, Colombo 2. The learnedcounsel for the plaintiff rightly pointed out in the written submission that as aresult of the demolition of the petitioner’s business premises by the first andsecond defendants, his income from the business was lost along with hispropety which was lying at the premises and if the business had continued itwould have devolved on his heirs. Therefore the heirs of the plaintiff have aright to obtain damages from the first and second defendants for their wrongfuland unlawful act which has caused loss to the estate of the deceased plaintiff.
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In Dheerananda Thero vs. Ratnasara Thero (Supra) T. S. Fernando, J. citedwith approval the observation made by Sinha, J. in the Indian decision inRamsarup Das vs. Ramashwar Das<2)
“If a plaintiff is suing to establish his right to a certain property in hisown rights and not by virtue of his office, certainly the cause of actionfor the suit will survive, and his legal representative can continue thesuit on the death of the original plaintiff, either during the pendancy ofthe suit or of the appeal. But, where the plaintiff’s suit is primarily toestablish his personal right to an office which would entitle him topossession of the property inquestion, on his death, either during thependencey of the suit or during the pendency of the appeal, the right tosue would not survive, and the suit will therefor abate.”
The learned counsel for the plaintiff also referred to the case of Fernando
vs. Livera{3) where it was held that in an action to recover damages for injuries
implicated by the defendant, and the plaintiff died after the service of summons,
the action may be continued by the heirs in respect of the claim for patrimonial
loss to the estate of the deceased.
*
The original plaintiff (now deceased) filed action in the District Court ofColombo against the 1st and 2nd defendants for a sum of Rs. 50,000,000 asdamages for the demolition of the petitioner’s business premises which wassituated at 122, Sir James Peiris Mawatha, Colombo 2 on the basis that as aresult of the demolition, his income from the business was lost along with hisproperty, and thereby the value of his estate diminished causing patrimonialloss.
In the aforesaid case of Fernando vs. Livera (Supra), Drieberg, J. at 248made the following observation.
“Where the wrongful loss has caused patrimonial loss and comeswithin the principles of Lex Acquilia the action does not lapse with thedeath of the plaintiff before litis contestatio, but enures to the benefit ofthe heirs.”
In the circumstances, it is my considered view that in the instant case thecause of action survives on the death of the original plaintiff. .
For these reasons the petitioner, Chandana Hewawitharana, who has nowbeen appointed by the District Court of Mount Lavinia as the Administrator ofthe deceased plaintiffs estate should be substituted in place of the deceasedplaintiff. Accordingly I reject the objections filed by the defendants and orderthat the said Chandana Hewawitharana be appointed as the substitutedplaintiff. The petitioner is entitled to recover the incurred costs of this inquiryfrom the first defendant respondent.
Application for substitution allowed.