018-NLR-NLR-V-64-H.-PACKEER-Appellant-and-A-R-ABIDAH-Respondent.pdf
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HERAT, J.—Packecr v. Abidah
1962Present: Herat, J.
H. PACKEER, Appellant, and A. R. ABIDAH,
Respondent
S. C. 55 of 1961—C. B. Colombo, 7SJ28 (R/E)
Pent Restriction (Amendment) Act, No. 10 oj 10G1—Section 13 (.3)—Duration of“ pending action
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An action or procooding docs not terminate if an appoal is filed to tlieSupremo Court from tho dccrco of the Court of first instanco. Until suchappoal is disposed of by tho Supremo Court, the action or proceeding must beregarded as pending.*
Accordingly, under tho provisions of section 13 (3) of tho Rent Restriction(Amendment) Act, No. 10 of 1961, an action for ejectment instituted on orafter tho 20th July 1900 concerning rent controllod premises on a ground notfalling under (a) or (b) or (c) of section 13 (1) is null and void if an appoal tothe Supremo Court in respect of the action was pending on the 30th April 1961(tho day immediately preceding tho date of commencement of the amondingAct).
Appeal from a judgment of the Court of Requests, Colombo.
M.MarJchani, with Sivagurunathan, for the defendant-appellant.
M. T. M. Sivardeen, for the< plaintiff-respondent.
June 13, 1962. Herat, J.—
This is an action for rent and ejectment instituted by the plaintiff-respondent against the defendant-appellant. Admittedly the premisesin question are subject to the Rent Restriction law. The action wasinstituted on the 24th of November, 1960. The Rent Restriction(Amendment) Act, No. 10 of 1961, by section 13 sub-section 1 providesas follows:—
“ Notwithstanding anything in the principal Act the landlord of
any premises to which this Act applies shall be entitled to institute
any action or proceedings for the ejectment of the tenant of such
premises only on any one or more of the following grounds.”
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Three grounds (a), (6), and (c) are thereafter set out. The ground orgrounds on which the plaintiff-respondent instituted the present action,admittedly are not any of the grounds set out in section 13 (1) (a) or
or (c) of The Rent Restriction (Amendment) Act, No. 10 of 1961.
HERAT, J.—Packeer v. Abidah
119
Sub-section 2 of the said section 13 of the said Act provides asfollows :—
“ The provisions of sub-section 1 shall be deemed to have comeinto operation on the 20th day of July, 1960, and shall continue inforce for a period of two years commencing from that date.”
Therefore, section 13 (1) was in operation at the date when this action
was filed. Sub-section 3 of the said section 13 of the Rent Restriction
(Amendment) Act, No. 10 of 1961, further provides as follows :—
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“Where any action or proceedings instituted in any court on orafter the 20th day of July 1960 for the ejectment of a tenant fromany premises to which the principal Act applies on any ground otherthan a ground specified in sub-section 1 of this section is or are 'pendingon the day immediately preceding the date of commencement of thisAct, such action or proceedings shall be deemed at all times to havebeen and be null and void.”
It is admitted that the Rent Restriction (Amendment) Act, No. 10 of1961, came into force as from the 1st of May, 1961. Judgment in thiscase was delivered in the Court of first instance on the 20th of March,1961, but the defendant-appellant filed a petition of appeal in due timeand that appeal was pending on the 30th of April, 1961, which is the dateimmediately preceding the commencement or the coming into forceof the Rent Restriction (Amendment) Act, No. 10 of 1961. In myopinion this action or proceedings for the ejectment of the tenant fromadmittedly protected premises was pending on the 30th of April, 1961,in view of the appeal.
Proceedings or an action which cannot normally terminate with theentering of the decree in the Court in which they are first instituted are,in my opinion, not terminated if an appeal is filed to the SupremeCourt from the decree of the Court of first instance and until such appealis disposed of by this Court that action or proceedings are, in myopinion, pending. I am supported in the view I take by the decision ofthis Court reported in 22 New Law Reports page 39. Even for purposesof res-judicata this Court and the Privy Council have both held thatwhere an action or proceedings are pending appeal the decree of the Courtof first instance cannot be used as a basis for pleading res-judicata.I think the same reasoning applies.
In my view this action was pending on the 30th of April, 1961, andtherefore, by sub-section 3 of section 13 of the Rent Restriction(Amendment) Act, No. 10 of 1961,1 declare that the action or proceedingsmay be deemed to have been and be null and void. The appeal is allowedand the decree of the lower Court is set-aside. The action by theplaintiff-respondent is dismissed. The defendant-appellant is entitledto costs in this Court as well as in the Court of Requests.
Appeal allowed.