DR. AMERASINGHE, J.,
S.C. NO. 62/91.
C. MT. LAVINIA 1592/RE.
DECEMBER 05, 1994.
Writ pending Appeal – Section 763(2) – Civil Procedure Code – Amended bysection 53 of 1980 section 23 of Judicature Act – amended by Act No. 37 of1979 – Substantial loss – substantial question of law- Hardships caused to3rd parties.
(i) The matter is governed by the provisions of section 23 of the JudicatureAct as amended by Act No.37 of 1979 and section 763 (2) of the Civil Proce-dure Code as amended by Act No. 53 of 1980.
Section 23 permits the court to stay writ of execution if it sees fit.
Section 763(2) permits it to stay writ if the judgment debtor satisfies thecourt that substantial loss may result. These two provisions are not linked.The Court is empowered to act under either of these sections :
"The Judge should take into account hardships to all who may be affectedby the grant or refusal of an order for possession-relatives, dependents,lodgers, guests and the stranger within the gates-but should weigh suchhardship with due regard to the status of the persons affected and theirproximity to the tenant or landlord and the extent to which consequently,hardship, to them would be hardship to him.
Per Wijetunga, J.
“Claims of third parties would in relation to business premises apply to thehardship that may be caused to the employees of the tenant on the basis oftheir proximity to him.
That there were substantial questions of law for determination in appealwould also have been a valid reason, for court to have "seen it fit" to stayexecution of writ under Section 23.
AN APPEAL from the judgment of the Court of Appeal.
Cases referred to:
Charlotte Perera v. Thambiah – 1983-1 SLR 352
Suppiah Chettiar v. Samarakoon – 56 NLR 161 at 163
Harte v. Frampton (1947) 2 All E.R. 604
Perera v. Gunawardene -1991 BLR 7
Faiz Musthapha PC., with Amaraslrl Panditharatne for Petitioner.
L. de Silva P.C. with Sanath Jayatileke for Respondent.
January 31, 1995.
The Plaintiff – Respondent Appellant (Appellant) instituted this actionin the District Court of Mount Lavinia against the Defendant -Petitioner-Respondent (Respondent) seeking inter alia the ejectment of theRespondent from premises No. 16/1, Church Street, Nugegoda, ofwhich the Respondent is the tenant. It was admitted at the trial thatthe premises are business premises, governed by the Rent Act andthat the monthly rental was over Rs. 100/-.
The basis of the action is that the premises in question were requiredby the Appellant and the members of her family for occupation as aresidence, as well as to conduct a business, within the meaning ofsection 22(2) (ii) (b) of the Rent Act. as amended.
The Respondent in his answer stated inter alia that his mothercame into occupation of the said premises as a tenant of the Appellant'sfather in 1967 and commenced a business under the name and styleof Modern Pharmacy. He became the tenant thereafter in 1971 andsubsequently the Appellant became his landlady in 1976. He claimedthat his tenancy was protected under the Rent Act.
The Appellant as well as the Respondent gave evidence at the trialand adverted to their respective hardships. The learned District Judgedelivered judgment in favour of the appellant on 26.1,88.The Respondentappealed therefrom to the Court of Appeal. While the said appeal waspending, the Appellant made an application to the District Court forexecution of the decree which had been entered in her favour. TheRespondent filed his objections and, after inquiry the learned DistrictJudge made order on 29.6.90 directing the issue of writ, three monthsafter the date of the said order.
The Respondent made applications to the Court of Appeal for Leaveto Appeal as well as for Revision. The Court of Appeal by its orderdated 20.11.90 set aside the order of the learned District Judge dated29.6.90 allowing execution of writ pending appeal and directed thatexecution of the decree of the District Court be stayed pending thefinal determination of the appeal.
The Appellant being aggrieved by the said order sought and obtainedleave from the Court of Appeal to appeal to this Court. The questionbefore us, therefore, is whether the Court of Appeal was right inreversing the order of the learned District Judge, on the basis that thestatus quo should remain until the issues between the parties aredetermined by the said Court, in appeal.
The matter is governed by the provisions of section 23 of theJudicature Act, as amended by Act No. 37 of 1979 and by section763(2) of the Civil Procedure Code, as amended by Act No. 53 of 1980.This Court has, in Charlotte Perera v. Thambiah.m held that section 23permits the Court to stay writ of execution if it sees fit, while section763(2) permits it to stay writ if the judgment debtor satisfies the Courtthat substantial loss may result; and these two provisions are not linked.The Court is thus empowered to act under either of these sections.
The original tenant, the mother of the Respondent, had as statedabove carried on the pharmacy business from 1967 and the Respondenthad succeeded to the same in 1971. It is the Respondent's positionthat he had a large volume of business in the said premises. After hereceived the notice to quit, he made every endeavour to obtainalternative accommodation but was unsuccessful. He placed anadvertisement in the newspapers (ReceiptV1) with a view to obtainingalternative accommodation. He also responded to advertisementsoffering accommodation in Nugegoda. He has produced (V2) to (V6) toshow that the response he had did not result in his being able to obtainsuitable alternative premises where he could continue his business.
He has in his affidavit dated 5.3.90 submitted to the District Court,given cogent reasons why the available premises were not suitable forhis business.
It also appears that the learned District Judge had, in consideringthe question of the Respondent's ability to obtain suitable alternativeaccommodation, erroneously assumed that the action against theRespondent had been instituted in 1968 and, as the judgment had beendelivered in 1988, the Respondent had about 20 years within which tolook for alternative accommodation. But, in fact, the plaint had beenfiled only on 29.10.81 and the judgment had been delivered on 26.1.88.This error seems to have coloured the District Judge's attitude to thequestion of assessment of substantial loss.
As observed by Sansoni, J. (as he then was) in Suppiah Chettiyarv. Samarakoon™ "the advantage of continuing to occupy the samepremises and the proportionate disadvantage suffered by being forced
to leave them, are not matters that should be regarded lightly
The value of a business such as this would depend to a large extenton the length of time that it has been carried on in the same premises,for it is to those premises that their customers would naturally haveacquired the habit of going."
The Appellant further submitted that the Court of Appeal was inerror when it considered the ejectment of the Respondent not onlyfrom the stand point of the Respondent, but on an extended basis,taking into account its effect on the Respondent's employees.
Suppiah Chettiyar v. Samarakoon (supra) at page 164 is once againrelevant. His Lordship having made the observation that "the furtherquestion then is whether it is hardship to the landlord or the tenantalone that must be taken into account or whether there is a claim ofthird persons whose reflected hardship, so to speak, may be takeninto account0, cited with approval the following dictum of Asquith L.J.in Harts v. Frampton, (3> "The true view, we think, is that the countycourt judge should take into account hardship to all who may be affectedby the grant or refusal of an order for possession – relatives, dependents,lodgers, guests and the stranger within the gates – but should weighsuch hardship with due regard to the status of the persons affectedand their proximity to the tenant or landlord and the extent to whichconsequently, hardship to them would be hardship to him.0
That case, however, was dealing with certain provisions of lawrelating to the ejectment of a tenant from a dwelling house, claimed tobe reasonably required by the landlord, where the Court had to besatisfied that having regard to all the circumstances of the case,including the question of availability of other accommodation for thelandlord or the tenant, whether greater hardship would be caused bygranting the order or judgment than by refusing to grant it.
But, I am of the view that the principle laid down in that caseregarding the claims of third parties would, in relation to businesspremises, apply to the hardship that may be caused to the employeesof the tenant on the basis of their proximity to him.The Court of Appealwas, therefore, right in taking into consideration the effect of such anorder on the Respondent's employees.
Perera v. Gunawardena,<4) on which the Appellant relied can bedistinguished, as the facts in that case did not warrant a stay ofexecution pending appeal.
Taking the totality of the relevant circumstances into consideration,I think the Court of Appeal was justified in its view that the Respondenthad placed adequate material before the Court to satisfy it that thestatus quo should remain until the issues between the parties aredetermined by that Court.
On the submissions made by learned counsel at the hearing ofthis matter, the Court of Appeal has identified two substantial questionsof law which arise for determination at the hearing of the main appeal.Similar submissions had been made before the District Court too, thoughthat Court had paid no heed to them.That there were such substantialquestions of law for determination in appeal, would also have been avalid reason for the learned District Judge to have seen it fit to stayexecution of writ, under the provisions of section 23 of the JudicatureAct.
For the reasons aforesaid, I would dismiss this appeal with costs.AMERASINGHE, J. -1 agree.
WADUGODAPITIYA, J. -1 agree.