v.SULAIMAN PILLAI ADAM
COURT Of APPEAL
wijetunga; J. &ananqacqqmaraswamy, j.
C;A, NO. 458/81(F)
0;6.:eOLOM60NO. 743/ED1 T^tARCH 1991
CivilPrpcedure – Substitution in a rent and ejectment suit of partner in business -CiirH Procedure 'Code,' Sections 394 and 760A – Rules of the Supreme Court -Executor-de-sqh-ton. ■; ."
In a rent and ejectment suit, the defendant tenant died when the appeal in theaction was still pending. The plaintiff:landlord sought to substitute the latedefendant tenant's partner-manager in the business run in the premises in suitwho he had averred was the sub-tenant of the deceased tenant. The partnerobjected.
There was nothing to support the plea that the person sought to besubstituted was the executor-de-son-tort of the deceased tenant.
The landlord sued the deceased tenant on the ground that he (the tenant)had sublet the premises in suit to the 2nd defendant. The landlord cannot nowhave the 2nd defendant substituted in place of the deceased tenant.
Cases referred to:
Iso Nona v. Haturusinghe 72 CLW 54.
Perera v. Kumarasamy (1973) 76 NLR 503.
Dahanayake v. Jayasinghe (1967) 71 CLW 112.
Nesaratnam v. Vaithialingam (1978) 78 NLR 457.
Duhilanomal and Others v. Mahakanda Housing Co., Ltd. (1982) 2 Sri LR 504.
APPLICATION for substitution under section 760A of the Civil Procedure Code.
A. K. Premadasa, P.C. with P A- 0. Samarasekera, P.C. and T. B, .Qilirwni forpetitioner.
S. Mahenthiran for respondent.
3rd April, 1991! v..;
This is an application fo't substitution of one Sulaiman Pillai Adamas respondent – respondent* respondent in place of the deceasedrespondent – respondent. Sdtaiman Pillai Adam the party sought tobe substituted objected to the substitution.
the facts relevant to this application are briefly as follows:-
One Miss W. Chandr^sbma Perera the Petitioner sued oneM. Soranam the Respondent for ejectment from the premises onthe ground that.Jhe Respondent sublet the premises in suit toone Sulaiman Pillai Ad am, but the Respondent denied that hesublet the premises.*. The Respondent pleaded that he wascarrying on a partnership business with the said Sulaiman PillaiAdam. The Learned District Judge dismissed the Petitioner’saction. The Petitioner thereupon appealed from the saidjudgment to the Court of Appeal, and while the appeal waspending the Respondent – Respondent died and therefore thePetitioner – Appellant sought to substitute the said SulaimanPillai Adam (Respondent – Respondent – Respondent) in placeof the Deceased – Respondent – Respondent.
It is the case of-the petitioner that the respondent – respondentdied leaving behind no known heirs and therefore the petitionersought to substitute the said respondent – respondent – respondent inplace of the deceased – respondent – respondent on the ground thatthe respondent – respondent – respondent is carrying on andmanaging the business of the said deceased as he is a fit and properperson to be substituted in place of the deceased for the purpose ofthis case as his executor-de-son-tort.
' At the outset and before considering any submissions madebefore us in this application we are of opinion that this applicationshould be dismissed on the pleadings alone filed in this application..
The essence of the petitioner's application for substitution in place,of the deceased – respondent – respondent is that>
The respondent had been registered as a partner of the saidbusiness;
He is continuing to occupy the said premises; and is carryingon the said business which was earlier carried on by the saiddeceased – respondent – respondent.
As the said respondent is managing the business of the saiddeceased he is a fit and proper person to be substituted in place ofthe deceased for the purpose of this case as his executor-de-son-tort.
From these averments it is clear that the petitioner has no materialto substantiate that the party sought to be substituted is the executor-de-son-tort. On this ground alone the application fails.
As against this, the averment in the statement of objections of therespondent is that the deceased left behind as his heirs his widow,and child and that the respondent had not interfered with the estateof the deceased and is not an executor-de-son-tort.
Therefore on the pleadings alone the petitioner had not made out acase for the substitution of the party sought to be substituted asrespondent – respondent – respondent.
However, The learned Counsel for the Petitioner relied on severalauthorities in support of the petitioner’s application. We havetherefore decided to deal with his submissions on the law.
Section 398 of the Civil Procedure Code deals with the substitutionof legal representative of deceased defendants in the District Courtand Section 760A of the Civil Procedure Code read with the Rulesmade by the Supreme Court for that purpose deals with substitution
in the Court of Appeal. The Rules referred to are the Rules of theSupreme Court published in Government Gazette Extraordinary dated23 January, 1974. If an appellant dies, any order made after thedeath of an appellant is invalid and substitution had to be effectedbefore the .appeal could be heard, the case of Iso Nona v.Haturusinghe('). Where a defendant tenant dies, his heirs-can besubstituted and the action can continue against the substituted -defendant Perera v. Kumarasamy m. Where a defendant dies pendingaction the widow can be substituted as executrix-de-son-tort, as legalrepresentative of the deceased. The legal representative is either theexecutor or the administrator, under Section 394(2) of the CivilProcedure Code. The term executor includes an executor-de-son-tortDahanayake v. Jayasinghe<3>. An executor-de-son-tort is a legalrepresentative of the deceased within the meaning, of Section 341(1)of the Civil Procedure Code Nesaratnamy.-tfaithialingamm.
The learned Counsel for the petitioner relied on the decision in thecase of Duhilanomal and Others v. Mahakanda Housing Co., Ltd.(5),where the Supreme Court (Wimalaratne, J. Victor Perera, J. and ColinThome, J.) held that on the death of the first defendant, the actioncould proceed against the 2nd and 3rd defendants, all of whom werepartners in business and tenants of the premises, without substitutingthe legal representative of the first defendant deceased. That was acase where the three defendants were partners in business andtenants of the premises and they were sued as such by the plaintiff.
In the instant case the respondent tenant was sued on the groundthat he sublet the premises to the subtenant whom the petitioner nowseeks to substitute in the room of the deceased respondent on theground that he is the executor-de-son-tort. Therefore the case citedhas no application to the facts of this case.
For the foregoing reasons we are of opinion that the petitionercannqt maintain this application for the substitution of the partysought to be substituted as respondent – respondent – respondentand we accordingly dismiss the application with costs.
WIJETUNGA, J. – / agree.Application dismissed.
CHANDRASOMA PERERA v. SULAIMAN PILLAI ADAM