048-NLR-NLR-V-13-HOLLOWAY-et-al.-v.-PERERA.pdf
( 188.)
May 20,19 JO
Present: Mr. Justice Grenier.
HOLLOWAY et al. v. PERERA.
R., Panwila, 2,301.
Action for rent and ejectment—Subsequent action for rent accruing afterthe date of the first action—Rea judicata—Civil Procedure Code*$8. 34 and 35.
Plaintiff obtained judgment against defendant for rent due npto date of action and for ejectment. Subsequently, after plaintiffwas pot in possession, he brought the present action for the rentthat accrued between the institution of the first action and thepresent action.
Held, over-ruling a plea of res judicata, that the present actionwas maintainable.
fjp HE facts are fully set out in the judgment of Grenier J.
A. St. V. Jayewardene, for the defendant, appellant.—Plaintiffeould have claimed rent till he was restored to possession in thefirst action. He elected not to do so. Section 196 of the CivilProcedure Code gives the Court power to decree the payment ofrent from the date of the institution of the action until delivery ofpossession. But the Court has not done so. Under these circum-stances the present action cannot be maintained {Kiri Banda v. SlemaLebbe,1 Kirihamy v. Dingiri Amma 2).
H. A. Jayewardene, for the plaintiff, respondent.—Under section35 of the Civil Procedure Code the plaintiff could not include in hisplaint in the first action a claim for future rent. Section 196 merelygives the Court the power to decree future rent; but it does notenable the plaintiff to claim future rent as a matter of right. Counsel
1 {1908) 11 N. L. R. 348.
• {1905) 1 Bal. 146.
( 199 )
cited Sirkar v. The Secretary of State for India in Council;1 May 30,1910Hays v. Padmanand Singh; 2 Dayal v. Lai; 3 Bliivrav v. Sitaram; 4 Holloway
G.t Galle, 6,340.5 The present case can be distinguished from v.Pererathe Ceylon oases cited by the appellant’s counsel. In those casesthere was a prayer for damages accruing after the institution ofthe action.
A. St, V. Jayewardene, in reply.
Cur, adv. vidt.
May 30, 1910. Grenier J.—
The defendant was the tenant of the plaintiff 'of certain boutiqueson a monthly rental of Rs. 5. Plaintiff obtained judgment-againstdefendant in C. R., Panwila, 2,032, for the sum of Rs. 54.20, beingrent due to the end of January, 1908, and also obtained an order forejectment of the defendant from the premises. On May 22, 1909,the plaintiff was put in possession of the premises, the defendanthaving remained in possession up to that date.
The defendant admitted the tenancy averred in the 2nd paragraphof the plaint, but denied his liability to pay the amount claimed,on the ground that he was not the tenant of the plaintiff, and wasnot in occupation of the premises during the period betweenFebruary 1, 1908, and May 22, 1909. He denied he was ejectedfrom the premises by the Fiscal, but this was an unnecessarydenial, as the plaintiff never averred any ejectment in his plaint.
The defendant averred that he was not aware that plaintiff hadbeen put in possession of the premises.
Following on the above statements and denial came tins extra-ordinary defence, raised as a matter of law, that the amount claimed,which, according to defendant, was not due, and for which he hadnever made himself liable, should have been included and formedpart of the plaintiff's claim in action No. 2,032, and that havingomitted to do so, the plaintiff cannot have and maintain this action.
At the trial two issues were framed, the first relating to defendant’stenancy from February 1, 1908, to May 1, 1909, and the otherrelating to the question of law.
The defendant gave no evidence. On behalf of the plaintiff hisson was called, as he was in charge of the boutique tenanted bythe defendant. He stated that defendant paid rent, up to March,
1907, and the action No. 2,032 was instituted to recover rent fromApril 1, 1907, to end of 1908. Judgment was entered for plaintiffin that case for rent up to end of January, 1909. Writ of possessionwas issued, and on May 22, 1909, the Fiscal placed him in possession.
Between the end of January, 1908, as before that, and May 22, 1909,the defendant was in occupation of one o.f the tenements (No. 36),having sublet the others to some third parties; the witness also
1 (1890) 17 Cat. 968.* 3 (JS90) 21 AU. 425.
3 (1903) 32 Cal. 118.* (1894) 19 Bom. 532, 11 Mad L. J 462.
6 S. C..MinJune 29, 1903.
17-
( 200 )
May 30J910 stated that after judgment was entered against defendant in caseGbbnxerJ No. 2,032, he quitted tenement No. 36, and one of his tenants, who■■■ was in occupation of another house, took possession of it—a not^°Perera uncommon proceeding amongst a certain class of tenants.
In cross-examination the witness stated that the plaintiff did notpray in case No. 2,032 for further rent until defendant was ejected.This omission, upon which the issue of law was raised, formed thefoundation of an elaborate argument by the appellant's counsel,who contended that the plaintiff/ could not recover the amountclaimed in this action by reason of the omission, and that the matterwas res judicata. Neither at the argument nor after could Iappreciate a point which may be supported by an isolated authorityof this Court, but which, if decided in favour of the appellant, wouldwork manifest'injustice to him. In my opinion section 34 of theCivil Procedure Code must be read intelligently with section 35.Section 35 is clear, that except claims in respect of mesne profits orarrears of rent, no other claim on any cause of action shall be made,unless with the leave of the Court, in an action for the recovery ofimmovable property or to obtain a declaration of title 1®. immovableproperty; the use of the imperative “ shall " is significant. Eentwhich may subsequently accrue after the institution of the actioncannot possibly come under the description of arrears of rent. Inbringing an action for arrears of rent a plaintiff cannot surelyanticipate what the tenant's tactics may be, especially if he isinclined to dishonesty, as in this case, and introduces into thepremises a third party in order to give trouble to the landlord whilehe is all the time in occupation himself.
In the present case the plaintiff did in fact and in law includein his first action the whole of the claim which he was entitledto make in respect of his cause of action, which was for arrearsof rent due by defendant to him. His cause of action was thatdefendant had not paid him rent for a certain ascertained periodbefore institution of suit. He fully complied with the provisionsof section 34, because he was not entitled to more than one remedyin respect of his cause of action, and in suing as he did for arrearsof rent, without a prayer for future rent, which may or may notaccrue—for the tenant was at liberty to quit the premises withoutbeing ejected by process of law—he was, in my opinion, acting instrict compliance with the provisions of both the sections 34 and 35.
The object of these two sections is undoubtedly to prevent amultiplicity of suits, but I cannot well see how the present suitcould have been avoided by a claim being made in the first suit forrent which had not accrued at the time, and in respect of whichthe plaintiff had no cause of action then against the defendant.
I would dismiss this appeal with costs in both Courts.
Appeal dismissed.