007-SLLR-SLLR-1981-2-FAREED-v.-THE-COLOMBO-FORT-LAND-BUILDING-COMPANY-LIMITED.pdf
64
Sri Lanka Law Reports
(1981) 2 S.L.H.
FAREED
v.THE COLOMBO FORT LAND AND BUILDING COMPANY
LIMITED
COURT OF APPEAL.
ABDUL CADER, J. AND RODRIGO. J.
C.A. IL.A.) 127/80—D.C. COLOMBO 1441/ZL.JANUARY 22, 1981.
Writ of execution—Application for writ pending appeal -Discretion of trialjudge—Judicature Act, No. 2 of 1978, as amended by Act No. 37 of 1979, section23.
In an application by the plaintiff-respondent for a writ of execution of a decree in hisfavour for ejectment of the defendant-petitioner from the premises in suit pendingappeal, the learned trial judge allowed the application. He also required the plaintiff todeposit a sum of Rs. 60,000 as security which was almost the entire value of thepremises as alleged by the plaintiff in his plaint and not denied by the defendant. Thedefendant-petitioner applied for leave to appeal from the said order. It was urged onbehalf of the defendant-petitioner that the business carried on in these premises was hisonly means of livelihood and that in the event of his appeal succeeding it would not bepossible for the plaintiff to restore him to the premises.
Held
There is specific provision enacted by Act No. 37 of 1979 amending the judicatureAct, No. 2 of 1978, to permit execution of a decree pending appeal, unless the Courtof first instance sees fit to stay execution. The circumstances of the present case werethat the plea taken in defence by the defendant-petitioner was one that had beenrejected in an earlier action. It did not appear that in the present case the court of firstinstance had exercised the discretion given it on any wrong principles of law and leaveto appeal therefore should be refused.
APPLICATION for leave to appeal from an order of the District Court, Colombo
M. S. M. Hassan, for the defendant-petitioner.
Eric Amerasinghe, for the plaintiff-respondent.
Cur. adv. vult.
February 3, 1981
RODRIGO, J.
This is an application by the defendant-petitioner for leave toappeal from the order of the court of first instance dated
CA
Fareed v. Colombo Fort Land&Building Co. Ltd. (Rodrigo, J.)
65
19.12.80 allowing the application by the plaintiff-respondent fora writ of execution of the decree obtained by him for ejectmentof the defendant-petitioner from the premises in suit.
The plaintiff had instituted the action for declaration of titleagainst the defendant The defendant has denied the averments ofthe plaintiff in the several paragraphs of the plaint in regard to thetitle set out by the plaintiff, but the defendant has specificallypleaded that he is a tenant of the plaintiff and was entitled to theprotection of the Rent Act, No. 7 of 1972.
However, in an action bearing No. 1441/ZL filed in the DistrictCourt of Colombo by him (the defendant-petitioner in this case)against the plaintiff-respondent in this case, the court of firstinstance held that this present defendant-petitioner is not a tenantof the premises in question and that finding was affirmed by theSupreme Court by the judgment of Their Lordships delivered onOctober 2, 1975. This judgment had been considered by thecourt of first instance in respect of the application by theplaintiff-respondent for the writ of execution of the decree. Evenin the application for leave before us the defendant-petitionerrepeats his defence that he is in occupation of the premises as atenant thereof. This plea is clearly res ad judicata in the casereferred to and affirmed hy the Supreme Court on October 2,1975.
Some issues relating to one Razak who figured in an earlier casebearing No. 169/RE of the District Court of Colombo had beenerroneously answered. This, however, does not effect the answerto the issue in the present case relating to the nature of occupationof the premises by the defendant-petitioner. The trial Judge hadheld that the defendant is not a tenant of the premises in suit.The defendant had nowhere seriously contested the claim of titleto these premises by the plaintiff By an amendment to theJudicature Act, No. 2 of 1978, by Act No. 37 of 1979 specificprovision has been enacted to permit execution of the decreepending an appeal unless the Court of first instance sees it fit tostay execution. In this instance, the learned trial Judge had notseen it fit to stay the execution of the decree for the reasons hehas given in his order. In the forefront of his order he has drawnattention to the result of the appeal in the earlier case referredto whereby the plea of tenancy by the defendant of the premisesin suit had been rejected by Their Lordships of the Supreme Court.
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Sri Lanka Law Reports
(1981) 2 S.L.R.
In the circumstances, one cannot fail to suspect this to be a lastditch attempt by the defendant-petitioner to hang on to thepremises as long as he can. It is urged that this is his only meansof livelihood, that is to say the business carried on in thesepremises by him is his only means of livelihood. It is also urgedthat in the event of his succeeding in the appeal it will not bepossible for the plaintiff to restore him to the premises. This maybe true and the learned District Judge has required the plaintiff todeposit a sum of Rs. 60,000 as security being practically the fullvalue of the premises as alleged by the plaintiff in his plaint andnot denied by the defendant The learned District Judge does notappear to be impressed with the defendant's prospects of successin his appeal. Counsel appearing for the defendant-petitioner hasnot been able to persuade us that the court of first instance hadexercised the discretion given to it on any wrong principles of law.
We, therefore, dismiss the defendant-petitioner's application forleave to appeal from the order of the learned District Judge dated19.12.80 and accordingly refuse leave to appeal from the order.The plaintiff is entitled to costs of this application.
ABDUL CADER, J.—I agree.
Leave to appeal refused.