SOEBTSZ J.—G-unapala and Mohideen.
19MPresent: Soertsz J.
GUN AP ALA, Appellant, and MO H1DEEN-, Eespondent.
87—C. R. Colombo, 93,806.
Rent restriction—Right of appeal—Court of Requests—Matters arising undersection 8—Rot a final order—Ordinance No. 60 of 1942, s. 8, provisos(a) to (d).
No appeal lies from an order of the Commissioner of Bequests onany of the matters arising' for decision under provisos (a) to (d) insection 8 of the Bent Bestriction Ordinance.
PPEAXi from a judgment of the Commissioner of Requests, Colombo.
S. E. J. Fernando, for appellant.
M.I. M. Haniffa (with him V. Arvlanbalam), for respondent.
Cur. adv. vult.
August 1, 1944. Soertsz J.—
A preliminary objection has been taken to the hearing of this appeal on-the ground that there is no right of appeal from such an order as was madein this case in the court below, the Court of Requests of Colombo.
It is well established by judicial interpretation that an action inojectment on a contract of tenancy from month to month is not an actionfor debt, damage, or demand, but an action involving an interest in land,and that there is a right of appeal from a final judgment, or from anorder having the effect of a final judgment pronounced in such a case.
But Ordinance No. 60 of 1942—an emergency measure—introduceda material change in the law by debarring landlords, in certain areas,from instituting such actions without the written authorisation of anAssessment Board; and also by prohibiting Courts of law in those areasfrom entertaining such actions, were they instituted, unless in the opinionof the Court, the rent was in arrear, or the tenant had given notice, orthe landlord required the premises reasonably, or the premises were beingused in an immoral, illegal, neglectful, or pestiferous manner. Underthe common law, of course, a landlord dissatisfied for any of these reasonsneed hardly have put himself to the occasion of pleading these mattersand proving them. He could, unless he preferred devious ways, put anend to the tenancy by valid notice to quit. Even the most resourcefuland dilatory tenant would have, in such a case, to bow, sooner or later,to his landlord’s demand. But the Rent Restriction Ordinance servedto put the tenant in a much more secure position in regard, to his tenancy.The tenancy cannot now be determined by the landlord merely givingproper notice to quit. The landlord could come into Court only if he hadbeen authorised in writing by the Assessment Board, the decision t>f theBoard being conclusive and final, or if the landlord not confident of beingable to commend his action to the Board, or for some other reason, presenteda plaint, as he is entitled to do, in the form of a plaint in an action forejectment, there would have to be, in addition to the usual averments
SOERTSZ J.—Qunapala and JMohideen.
in such an action, averments in regard to the clause or clauses in Beetum8 (a) to (d) on which he relied to have his action entertained. The tenantthen would make his answer to that averment as well aB to the otheraverments and a preliminary inquiry would take place for the solepurpose of ascertaining whether the Court has the power to entertainthe action for ejectment in the exercise of its ordinary jurisdiction.In the case now before me the landlord relied on the matters in clauses8 (a) and (c) of the Ordinance and averred that rent was in arrear, and thathe required the premises for his own use and occupation. The tenant,however, denied the former averment and put the landlord to the proofof the latter. But he did not deny the tenancy, or dispute that he hadbeen given valid notice to quit. The meaning of all this is that if thisaction had arisen before the Ordinance of 1942, a decree for ejectmentwould have been entered of consent, and that would, or at least, should,have been the end of the case, there being no right of appeal froma consent decree.
The proceedings in this case show clearly that the only matters put inissue and inquired into were the question of the rent being in arrear,and the question whether the landlord required the premises reasonably.Both these questions were answered in favour of the landlord. ' Thatis to say, the Court found that it had the power to entertain the action.But on the pleadings in the case, entertaining the action only meant,in this instance, the entering of a decree for ejectment because to theaction of ejectment itself, once it was entertained, there was no defenceoffered. The present appeal is, therefore, in reality, an appeal againstthe Commissioner’s findings in regard to the rent being in arrear and thelandlord reasonably requiring the premises himself.
In a case that came before me on July 17, 1944 (see Supreme CourtMinutes of that day) the landlord had appealed against a finding that,in the opinion of the Court, it would not be said that he required thepremises reasonably. No preliminary objection was taken to thehearing of the appeal, but in disposing of it on the merits, I venturedto express the opinion that from such an order there was no right of appeal.Four days later, this question arose directly before de Kretser J. upon apreliminary objection taken by Counsel who relied upon the view recentlyindicated by me, but my brother appears to have rejected the objectionwith uncompromising peremptoriness and to have delivered a judg-ment immediately from his seat. He said “ the remarks of Soertsz J.were read to me. Those remarks were made obiter, and now an objectionhas been taken expressly. Section 12, sub-section 12, definitely saysthat the order of the Board of Assessment shall be final and conclusive.When we turn to section 8, that section does not give the right to thelandlord to sue the tenant for ejectment. That is a right which he hasindependent of the Ordinance. What that section does is to curb hisright and to limit it to certain circumstances
When I put forward that view in the way in which I did, I had hopedthat it would be further and more fully considered when it arose directly.But that turned out to be a vain hope, and it has fallen tome again to consider and answer the question now that- it has arisen
SOEHTSZ J.—Ounapala and Mohideen.
directly. I must say at once that I derive no assistance whatever frommy brother’s judgment. To speak quite frankly, I do not see how fromhis premises he reaches his conclusion.
The propositions (a) that the landlord had a right to sue for ejectmentbefore the Rent Restriction Ordinance, (b) that the Ordinance onlycurbed that right, (o) that a right of appeal that existed previouslyis not affected by the Ordinance, are obvious and hardly deservingof being stated, but now that they have been solemnly declared,how, X asjr, from them does it follow that there is a right of appealfrom an order of the hind in question now ? The right of action andof appeal which existed previously is the right of the common lawaction and of the common law appeal from a final judgment or order-having the effect of a final judgment. A present instance would be if alandlord obtains the authorisation of the Board and comes into Court, his-action is ab initio purely and simply an aotion for ejectment. None of thepreliminary matters in section 8 (a) to (d) arise in Court and both parties -would certainly have the right of appeal from the final judgment. Butnot so when the landlord without authorisation institutes an action forejectment. Really it is not correct to say in that event that the landlordinstitutes an action for ejectment. But that way of describing the mattermay be allowed to pass provided we bear in mind that what he really doesis that he presents a plaint in the form of a plaint in an action for ejectmentwith an additional averment in view of sections 8 (a) to (d). So that thequestion whether to entertain it or not may, in the first instance, be con-sidered by the Court in the exercise of a new jurisdiction conferred upon itby the Ordinance. There is then an action for ejectment but only in posse.Till the Court has held the preliminary inquiry in accordance with thefundamental rule of procedure that requires that the party to be affectedshall be heard, there is in reality no action for ejectment over which theCourt has any power. If the Court is of opinion that the landlord has-not made out a case under section 8 (a) to (d), and makes order accordingly,that surely is not an order in an ejectment action. An ejectment actionhad not yet come into being for the purpose of trial. The conditionprecedent for the Court to entertain it, and admit it to its jurisdiction,and to try it, had failed. That was the case that was before me whenI expressed the view that from such an order there is no appeal. If,however, a Court finds that the relevant condition is satisfied and, that,therefore, it has power to entertain the action, the tenant will have noright of appeal from that order by virtue of the ordinary right of appealin the common law action of ejectment because it is not an order madein the action itself but in the course of the newly created preliminaryinquiry. Suppose, however, that the tenant has in his answer traversedtenancy and/or notice, both those questions would have to be tried, andthe landlord and the tenant would ultimately have a right of appeal fromthe final judgment. But even if we assume for a moment, withoutconceding the point that the order may be regarded as an order made-in the action for ejectment itself, still there is no right of appeal inasmuchas the order is not a final order. The case has still to be tried. It has
SOERTSZ J.—Gunapala and Mohideen.
-only been admitted to the jurisdiction of the court. (See (1873) Grenier’sReports, Courts of Requests, page 36).
In other words, the position that results from the amendment of thelaw by the Ordinance appears- to be that in an action for ejectmentwithout authorisation by a Board, a new jurisdiction has been conferredon certain Courts to consider some preliminary questions that do notarise as preliminary questions, in the ordinary tenancy case. Thosequestions have to be determined for on them depends the Court’s power toexercise its ordinary j mis diction.
Now, it is elementary, that a jurisdiction conferred on a Court is notsubject to a right of appeal unless such a right has been giveh by clearwords or by inevitable implication. Lord Westbury speaking manyyears ago in the case of Attorney-General v. Sillen 1 said, “ The creationof a new right of appeal is an act which requires Legislative authorityfor the creation of a new right of appeal is, in effect, a curtail-ment of the jurisdiction of one Court, and an extension of the jurisdictionof another This is the leading case on the point. There are otherpronouncements to the same effect, and just to refer to the better knownamong them in England and here, King v. Joseph Hanson '; The Queen v.Stock 3; Sangarapillai v. Municipal Council 4 *; Fernando v. Municipal■Council s; Kanagasunderam v. Podihamine 6 (Divisional Bench); andVanderpoorten v. Settlement Officer 7.
No right of appeal from orders made in the exercise of this jurisdictionhas been given in express terms. So far as the implications of the■Ordinance go they are inconsistent with the existence of a right of appeal.An assessment board called upon to authorise an action in ejectmentmay reasonably be supposed to guide itself to a decision by a considerationof such matters as the Court is required by section 8 (a) to (d) to inquireinto. The decision of the Board is made final. Is it, at all, likely, thatthe Legislature intended that the decision of a judicial tribunal in parimateria should not be final ?
I only desire to make one reservation and, that is to say, that what I havesaid in this judgment applies to matters arising in Courts of Bequests.Whether the position is the same in matters of this kind arising inDistrict Courts, a question that may arise, in view of the differencebetween section 73 and section 78 of the Courts Ordinance, remainsto be seen.
I uphold the objection and reject the -appeal with costs.
432 N. L. R. 92.
6 38 N. L. R. 73.
• 42 N. L. R. 97.
743 N. L. R. 230.
1 11 E. R. 1200.
* 106 E. R. 1027.3 112 E. R. 892.
GUNAPALA, Appellant and MOHIDEEN Respondent