056-SLLR-SLLR-2005-V-3-JABIR-vs.-KARUNAWATHIE.pdf
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JABIRVS.KARUNAWATHIESUPREME COURT.
S. N. SILVA CJ.
TILAKAWARDANE, J.
AMARATUNGAJ.
SC 18/2004.
FEBRUARY 18, 2005.
Civil Procedure Code – Section 396, Section 760 – Rent Act, No. 7 of 1972
Pending appeal defendant tenant dies – Abatement – Three years laterthe wife makes application for substitution and set aside order of abatement
Legality – Court of Appeal abating in the absence of an application forsubstitution, Article- 126-Constitution – Court of Appeal Rules – Rule 38.
The 1st defendant tenant lodged an appeal against the judgment of theDistrict court which held in favour of the plaintiff landlord. Whilst the appealwas pending the defendant tenant died on 30.01.2000. On 29.01.2002the plaintiff filed a motion bringing this matter to the notice of Court andsought an abatement. The Court issued notice on the registered Attorney onrecord. On being satisfied that the notices were served – the Court of Appealallowed the motion of the plaintiff-respondent. The appeal was abated, andWrit was executed.
On 13.05.2003, more than 3 years after the death of the defendant -appellant tenant, his spouse made an application to get the abatementorder set aside and for substitution of herself in the room of the deceaseddefendant-appellant. The Court of Appeal set aside the order of abatementand substitution was allowed and the case relisted.
On special leave being granted,
HELD:
(1) The consequence of abatement of a case is because the caserecord has become defective on account of the death of a party
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and those parties who are materially interested in the case nottaking necessary steps. No cogent or explicit reasons are givenfor the cause of.delay.
Per Shirani Thilakawardane. J.
“The Petitioner could not after more than 3 years and 3 months of thedeath of the 1st defendant-appellant, and one year after the order, ofabatement seek to re.medy this situation".
The proxy of the Registered Attorney had been revoked. It wasincumbent upon the 1st defendant-appellant even prior to hisdeath to have taken steps to have his registered Attorney-at-Lawenter proxy and file the required papers. In failing to give suchinstructions, the appellant had even prior to his death failed toexercise due diligence in the prosecution of his appeal.
Held further:
The Court of Appeal must in such applications made on the deatha party require such applicant or the petitioner or appellant or asthe case may be to place before Court sufficient material toestablish who is the proper person to be substituted – Court ofappeal Rule 38, Section 760 Civil Procedure Code.
Per Shirani Tilakawardana, J.
“With the death of the 1st defendant-appellant tenant the contract oftenancy came to an end and in the circumstances his surviving spouseadmittedly not in occupation of this premises would not be a fit and properperson to be substituted in the room of the 1 st defendant-appellant tenant.The only manner in which the surviving spouse of the 1st defendant-appellant could continue would be as a statutory tenant under Section36(2) but clearly as she is not resident in the premises, she could notplead same”.
APPEAL from the judgment of the Court of Appeal reported in 2004 3 Sri'LR 123.
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Cases referred to :Simon Silva vs. Sivasupramaniam – 55 NLR 562
Suppramaniam et al vs. Symons et al – 18 NLR 229.
LC Seneviratne PC with Riza Muzni for plaintiff-appellant-respondent-petitioner .
Sanjeewa Jayawardane with Priyanthi Gunaratne for petitioner-respondent.
September 7, 2005
SHIRANEE TILAKAWARDANE, J.The Plaintiff instituted action in the District Court of Mt. Lavinia for theejectment of his tenant (now Deceased) the 1 st Defendant-Appellantfor the wrongful subletting of the premises in suit, namely 393, GalleRoad, Colombo 4, to the 2nd, 3rd, 4th and 5th Defendant-Respondents,without the prior sanction of the Landlord. It was common ground thatthe Rent Act No. 7 of 1972 governed the said premises. The DistrictJudge of Mt. Lavinia by Judgment dated 28/08/1997 held in favour ofthe Plaintiff (A5).
Only the 1 st Defendant lodged an appeal, but while it was pendingthe 1st Defendant-Appellant died on the 30/01/2000, a fact proved bythe death certificate marked A7.
On 29.01.2002, almost two years later, the Plaintiff-Respondent fileda motion bringing this matter to the notice of court. The Court issuednotice on the registered Attorney-at-Law on record. On 7.5 2003 afterascertaining the fact that notice was not returned and thereby beingsatisfied that the notices had been served, the Court of Appeal allowingthe application of the said Plaintiff-Respondent made an Order forabatement of the Appeal.
On the 13.05.2003, more than three years after the death of the 1 stDefendant Appellant, his spouse, the Petitioner Respondent, filed anapplication by way of a petition in the Court of Appeal. The DistrictCourt referred to in the caption is the District Court of Moratuwa, thoughthis case was a case instituted in the District Court of Mt. Lavinia. Be
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that as it may, it is important to note that the Petitioner-respondentfiled the application only after the writ of execution was issued in theDistrict Court of Mt. Lavinia, after the Appeal was abated. This emanatesfrom the facts adverted to in the prayer of the petition filed by the• Petitioner respondent in the Court of Appeal.
The Petitioner-respondent by this Petition made an application toset aside the said Order of Abatement made by the Court of Appealdated 07.05.2003, for substitution of herself in the room of the deceased1st Defendant-Appellant, and fora re-listing of the Appeal..She claimedtherein that she had a daughter who was a co-heir to the estate of thedeceased 1 st Defendant-Appellant. Her daughter has filed no affidavitconsenting to the substitution nor was she noticed of the applicationfor substitution.
This application was allowed by the'Court of Appeal by its order of
in which the objections of the Plaintiff-Respondent-Respondent were overruled, the Order of Abatement was set aside thesubstitution was allowed and the case was re-listed.
On 24/02/2004 this Court granted special leave to appeal on thefollowing question of law.
Can the Petitioner-respondent make this application forsubstitution after more than 3 years of the death of the 1stdefendant-Appellant?
Was the Court of Appeal justified in the circumstances of thiscase, in particular in the absence of any application forsubstitution to have abated the said appeal?
Without prejudice to the aforesaid questions of law is thePetitioner-respondent eligible to seek substitution in place ofher deceased husband the 1 st Defendant-Appellant in view ofthe provisions of Section 36 of the Rent Act No. 7 of 1972 asamended.
In the aforesaid Order of 12.12.2003, the Court of Appeal referencewas made that the Petitioner-respondent’s spouse, who was the 1 stDefendant-Appellant in the Appeal, had died on 30/01/2001. This
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appears to be a factual error, as according to the death certificate,which has been produced marked A7 and pleaded by the Plaintiff-Respondent-Respondent-Petitioner his death had occurred a yearearlier, on 30.01.2000.
Indeed, according to the Court of Appeal it is clear that the onlyapplication that was made before the Court was by the Plaintiff-respondent in the Court of Appeal who had informed the Court that the1st Defendant-Appellant was dead and produced A7. The Court hadaccording to law thereupon noticed the registered Attorney-at-Law.The notice was issued on 08/02/2002 and according to the journalentry dated 05/03/2002 the said notice has not been returnedundelivered. Thereupon, on application made on 07/05/2002 appealwas abated.
The consequence of abatement of a case is because the case recordhas become defective on account of the death of a party and thoseparties materially interested in the case not taking the necessary steps.
The Petitioners could not after more than almost 3 years and 3months after the death of the 1 st Defendant-Appellant and one yearafter the order of abatement by the Court of Appeal, seek to remedythe situation.
In the case of Simeon Silva vs. Sivasupramaniam^ where after thedeath of the plaintiff, his legal representative delayed for nearly 18months to have themselves substituted, it was held that the order ofabatement of the action should be entered under Section 396 of theCivil Procedure Code.
In considering all the facts relating to the case therefore the order ofabatement of the action had legitimately been made because thePetitioner who seeks to substitute herself in place of the 1st Defendant-Appellant had failed to take steps rendered necessary by law.
This Court has also considered that in any event the Petitioner hadnot come within a reasonable time to have the order of abatement setaside. Furthermore no cogent or explicit reasons were given for thecause of the delay except to say that it was “for reasons beyond her
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control". In other words she has not proffered any rational explanation,which could legitimately be considered as a valid reason for the delay.
In this respect it is also important to consider whether there hasbeen a defect or error made by the Court of Appeal, in the delivery ofnotice on the Petitioner. This arises in the circumstances that at thetime of the service of this notice, according to the pleadings of thePetitioner, the Registered Attorney’s proxy had been revoked and anew registered Attorney-at-Law had been appointed.
The proxy of the registered Attorney-at-Law had been revoked.The Petitioner-Respondent admitted that she knew this fact as farback as 22.09.1998. According to the affidavit of the Petitioner dated21/05/2003 paragraph 2(b), “the Petitioner was aware that prior to thedeath of the 1 st Respondent”, and he had taken steps to revoke theproxy of the registered Attorney-at-Law on 22/09/1998”. It is noteworthythat at this time the Appeal was pending, having been lodged in theCourt of Appeal on 17/10/1997. So it was incumbent upon the 1stDefendant-Appellant, even prior to his death, to have taken steps tohave his new registered Attorney-at-Law enter proxy and file the requiredpapers in the Court of Appeal. In failing to give such instructions the1 st Defendant-Appellant had even prior to his death failed to exercisedue diligence in the prosecution of his Appeal.
It was such failure and lack of diligence on the part of the 1stDefendant-Appellant, which facilitated and/or caused the notice sentby the Court of Appeal on 07/05/2002, to be sent to a registeredAttorney-at-Law on record whose proxy by then had been revoked. Itis required by law that the Court before making an order of abatement. should notice the parties only as far as it conveniently can, to givethem an opportunity of showing cause against the order. But eventhough the Court had followed such procedure it was solely due to theinept failure of the 1 st Defendant-Appellant, even prior to his death, toexercise due diligence in his case and failure to give adequate butnecessary instructions for the filing of fresh proxy in the Court of Appealthat no papers had been filed by the 1 st Defendant-Appellant's spouse.The consequences of such failure must be borne by the party.
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It is important when cases are pending before courts to prevent anyof the aggrieved parties from being unduly barred from achieving thelegitimate result of their litigation by intervening factors. In this context,Wood Renton C.J. and Ennis J. in Suppramaniam et al Vs. Symons etal(2) said that “People may do what they like with their disputes solong as they do not invoke the assistance of the courts of law. Butwhenever that step has been taken they are bound to proceed with allpossible and reasonable expedition, and it is the duty of their legaladvisers and of the Courts themselves to see that this is done. Thework of the Courts must be conducted on ordinary business principles,and no Judge is obliged, or is entitled, to allow the accumulation uponhis Court list of a mass of inanimate or semi-animate actions".
The only ground urged by the Petitioner in the Petition for the orderof abatement to be set aside, was that no proper notice had beenissued on the Petitioner and the bald statement that the said order ofabatement had been made “due to reasons beyond the control of thePetitioner”. No details or material has been placed before the Court asto what “reasons were beyond the control of the Petitioner ". In otherwords she has failed to explain the delay in taking steps according tolaw on the death of a party. Furthermore on the facts referred to aboveit is clear that the Applicant-Petitioner-Respondent had not acteddiligently and with the required level of due vigilance to remedy thedefect in the record on the death of the 1st Defendant-Respondent.The order of abatement is the reasonable and expected outcome ofsuch failure.
After the 1 st Defendant had lodged an appeal in the Court of Appeal,the record of the Court of Appeal became defective by the reason ofthe death of the 1st Defendant on 30/01/2000. The procedure accordingto law to rectify the defect and seek substitution has been explicitlydescribed in the Code of Civil Procedure.
In terms of Section 760A of the Civil Procedure Code, “ in the mannerprovided in the rules made by the Supreme Court for that purpose, theCourt could determine, who, in the opinion of the Court is a properperson to be substituted or entered on the record in place of or inaddition to the party who had died or undergone a change of status
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and upon such order of the Court the person shall thereupon be deemedto have been substituted or entered of record".
The relevant Rule 38 of the Court of Appeal Rule reads as follows :
“Where at any time after the lodging of an application for specialleave to appeal, or an application under Article 126, or a notice ofappeal, or the grant of special leave to Appeal, or the grant of leave toappeal by the Court of Appeal, the record becomes defective by reasonof the death or change of status of a party to the proceedings, theSupreme Court may, on an application in that behalf made by anyperson interested, or ex mero motu, require such applicant or thepetitioner or appellant, as the case may be, to place before the courtsufficient material to establish who is the proper person to besubstituted or entered on the record in place of, or addition to, theparty who has died or undergone change of status”
The Court of Appeal must therefore in such applications made onthe death oka party, “require such applicant or the petitioner or appellant,as the case may be, to place before the Court sufficient material toestablish who is the proper person to be substituted."
It is neither an automatic Order but a considered Order that isenvisaged. All the more so if there is more than one heir. In this casethe Petitioner has explicitly pleaded that both she and her daughterwere lawful heirs in paragraph 15 of her petition dated 13.05.2003.
In this context, it is relevant to note that admittedly on her ownaffidavit dated 13/05/2003 filed in the District Court of Mt. Lavinia shehad not stated as to how the rights of the 1st Defendant-Appellant,even if such were available, would devolve upon her. Especially in viewof the fact that this was a rent and ejectment matter and it appearsthat admittedly she was not residing in the premises, which was thesubject matter of the action. Furthermore, even though she has claimedto be the legal wife no material has been placed before the Court todetermine whether she is the lawful wife of the 1 st Defendant-Appellantnor that she is a fit and proper person to be substituted in the room ofthe 1st Defendant-Appellant.
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In any event, with the death of the 1st Defendant-Appellant thecontract of tenancy came to an end and in the circumstances that thesurviving spouse of the 1 st Defendant-Appellant was not, admittedly,in possession of the premises and was not a registered member of thepartnership she would not be the fit and proper person to be substitutedin the room of the 1st Defendant-Appellant.
The only manner in which the surviving spouse of the 1 st Defendant-Appellant could continue would be as a statutory tenant under section36(2) but clearly as she is not resident on the premises, she could notplead the same.
Accordingly, the order of the Court of Appeal dated 12/12/2003setting aside the order of abatement and allowing substitution is setaside and the appeal is abated and the order dated 07/05/2003 madeby the Court of Appeal abating the appeal is upheld and the applicationfor substitution in the room of the 1st Defendant-Appellant is refused.
S. N. SILVA, C. J. — / agree.
AMARATUNGA, J. — / agree
Judgment of the Court of Appeal set aside.Order of abatement to stand.