JAYAWARDENA v. DE VESSER

030-SLLR-SLLR-2000-V-3-JAYAWARDENA-v.-DE-VESSER.pdf


JAYAWARDENA
v.DE VESSER
COURT OF APPEALJAYASINGHE, J.
JAYAW1CKREMA, J.
CA NO. 1000/97DC COLOMBO 5905/ZLJUNE 17th, 1999MAY 19™, 2000
Rent Act No. 7 of 1972 – S.36 – Consent Decree – Defendant entitled toremain in occupation until his death – Death of Defendant – Application tosubstitute – Application under S.36 Rent Act, S.398 ■ Civil Procedure Code- Common Law – contract falling outside Rent Act – Continuation of actionafter the alteration of a parties' status.
Plaintiff-Petitioner instituted action seeking a declaration of title andejectment. Settlement of consent was reached. Defendant entitled toremain in occupation until his death, and after his death, his heirs tohave no right to occupy the said premises or claim any relief under S.36.
The Defendant died and the Plaintiff sought to substitute the presentPetitioner for the purpose of executing the decree. This was allowed bythe District Court.
In Revision, it was contended that the Respondent is not entitled tosucceed as the terms of settlement did not provide for ejectment of thePetitioner after the death of the deceased Defendant; and the landlordand the tenant cannot take away the rights given to the surviving spouseunder S.36.
Held :
When the parties reached a settlement and consent decree entered,the deceased Defendant in effect surrendered his tenancy and thereaftera new contract of tenancy for a fixed term was created between theparties.
There was thus the emergence of a contractual tenancy which wasdetermined with the death of the Defendant.
♦
The said tenancy was a common law contract which fell outside theRent Act. Hence, the Petitioner is not entitled to come under S.36 andclaim tenancy as provided by S.36.
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S.36 has application only where a tenant dies before action isinstituted against him and not after. When the tenant dies after actionis instituted the problem that arises is not a question of substantive lawbut one of procedure and for a solution one has to have recourse toCap. 25, Civil Procedure Code for the continuation of a parties status.
It is redundant to incorporate in the decree that Writ of execution willlie upon the death of the deceased as it is a consequential step thePetitioner must take.
APPLICATION in Revision from an order of the District Court ofColombo.
Cases referred to :
Abdul Rahaman v. Marimuthu 52 NLR 503
Thiagarajah v. Perera (1983) 1 SLR 384
L.D. Frances u. J.W. Sirisena (1983) 2 SLR 50
Hensmen u. Stephen 58 NLR 467
Karunaratna v. Fernando – 73 NLR 457
A.K. Premadasa P.C., with C.E. de Silva for Petitioner.
Ikram Mohamed P.C., with Tisaih Wyegunasekera for Respondent.
Cur. adu. vult.
September 14, 2000.
JAYASINGHE, J.The Plaintiff-Petitioner-Respondent instituted actionagainst P.L.C. Jayawardena the deceased Defendant for –
a declaration of title to the upstair premises bearingassessment No. 594-1/1, Nawala Road, Rjagiriya.
ejectment of the deceased Defendant therefrom.
The trial commenced on 03. 08. 1990 and on 06. 05. 1992the Plaintiff and the deceased Defendant reached a settlementof consent and decree entered accordingly.
According to the settlement reached –
the Defendant was entitled to remain in occupation of thepremises in dispute until his death.
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that upon the death of the Defendant the heirs of theDefendant shall have no right to occupy the said premisesand that the Plaintiff is entitled to possession thereof.
that the Defendant agrees to continue to deposit a sum ofRs. 177/- presently made in the Urban Council of Kotte.
that the Plaintiff shall be entitled to withdraw the saidmonies so deposited at the Kotte Urban Council upon thePlaintiff establishing ownership to the said premises.
that the heirs of the Defendant shall not be entitled toclaim any rights under Section 36 of the Rent Act.
Parties thereafter signed the record and decree entered.
Parties were represented by Counsel.
The Defendant died on 21. 02. 1997 and the Plaintiffthereafter filed application “X-5” to substitute the presentPetitioner for the purpose of execution the decree andthereafter the Plaintiff filed amended petition “X-10”.
The present Petitioner filed objections “X-ll” pleadingamong other things:
that a decree capable of being executed has not beenentered.
that the trial is still pending.
that under the said settlement, writ of possession cannotbe issued or executed either against the deceasedDefendant or the Petitioner.
that the deceased Defendant was a tenant of the saidpremises up to the time of his death and that the Petitionerhas succeeded to the tenancy under Section 36 of the RentAct No. 07 of 1972 and prayed that she be substitutedunder Section 398 of the Civil Procedure Code.
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The learned District Judge made order on 21. 11. 1997allowing substitution of the present Petitioner as Defendant1A “X-13”. Thereafter the Plaintiff made an application toexecute the decree.
Being aggrieved by the said order “X-13” the presentPetitioner moved in revision.
Mr. Premadasa, President’s Counsel submitted that thePlaintiff-Petitioner-Respondent is not entitled to succeed asthe terms of settlement “X-4” did not provide for ejectment ofthe Petitioner after the death of the deceased Defendant. Herelied on Abdul Rahaman u. Marimuitum where Gratiaen, J.held that: “where a landlord sues his tenant for ejectment anda consent decree is entered by which inter alia the Defendantis permitted to remain as a tenant for a further stated period,writ of ejectment cannot be issued in the same action at theend of the stated period unless the consent decree hasexpressly provided that writ of ejectment can issue as a matterof course after the expiry of such period.”
He submitted that a decree capable of being executed hasnot been entered and hence the trial is still pending.
Mr. Premadasa also submitted that the Defendant was thetenant of the said premises up to the time of his death andtherefore the Petitioner as the surviving spouse is entitled tothe benefit under Section 36. He went on to submit thatthe landlord and the tenant cannot in law and has no right totake away the rights given to the surviving spouse underSection 36.
Mr. Ikram Mohamed, President’s counsel submittedthat upon the death of the Defendant the Plaintiff made anapplication under Section 341 of the Civil Procedure Codeseeking the appointment of a legal representative to executethe decree that was entered on 06. 05. 1992.
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In Thiyagarqfah u. Pereraf21 Soza, J. observed that;
At the outset it is well to remember, that in executionproceedings statutory procedures are so designed as to assistthe judgment creditor to recover the fruits of his judgment andnot to afford facilities to the judgment debtor to defeat or delaythe execution of the decree of Court.”
“A comparative examination of the provisions of our CivilProcedure Code on the question of decrees can leave no doubtthat provision in section 341 to make the legal representativesa party respondent is there to ensure that he receives notice ofthe application for execution. It should be emphasized thatthe notice under this section should call upon the legalrepresentative to show cause why the decree should not beexecuted against him . . . The notice should show causeagainst the application for execution and not to the applicationfor substitution. In showing cause against the applicationfor execution one of the defences open to the party noticedcould be that he has been wrongly substituted as legalrepresentative. ”
He submitted that the substitution effected under Section341 is an application made ex-parte and once substitutionis done notice should be issued on the substituted legalrepresentative to show cause why writ should not be executed.
Mr. Mohamed, P.C. submitted that Section 36 applieswhere a person dies as a tenant of the premises. It has noapplication where the tenancy has ceased at the time of death.Mr. Mohamed argued that the submission of Mr. Premadasathat the Petitioner being the widow is entitled to succeed to thetenancy under Section 36 is erroneous in that the Defendantstenancy rights terminated with the consent decree beingentered as far back as 1992 and hence the surviving spousecould not avail herself of the benefit under Section 36. He reliedon L.D. Francis v. J.W. Sirisena131 where Wimalaratne, J. heldthat; Section 36 of the Rent Act has no application where thetenant dies after an action has been instituted. He stated that
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“it seems to me therefore that Section 36 of the Rent Act hasapplication only where a tenant, be he a contractual tenant ora statutory tenant dies before action is instituted against himand not after. Where the tenant dies after the action isinstituted against him, the problem that arises is not aquestion of substantive law but one of procedure as to who ifany takes his place for the purpose of the continuity of theaction already instituted and for a solution one has to haverecourse to Chapter 25 of the Civil Procedure Code for thecontinuation of action after the alteration of a parties status.
In Hensmen v. Stephen141. The landlord let certainresidential premises to which the Rent Restriction Act appliedon a monthly tenancy to one Stephen. She filed action againsthim for ejectment on 08. 08. 1951 having previously given duenotice terminating the contractual tenancy. The landlordclaimed that the tenant Stephen was not entitled to statutoryprotection from ejectment because inter alia the premises werereasonably required as a residence for herself and her family.Stephen died pending the action for ejectment but his widowpurported to serve notice on the landlord that she proposed asa surviving spouse of the deceased tenant to continue inoccupation of the premises as tenant. The Commissioner ofRequests held that the wife was entitled to avail herself of theprovisions of Section 18 of the Rent Restriction Act whichprovided for the continuance of the tenancy on the death of thetenant. It was the contention of the landlord that Stephen hadceased to be a tenant long before his widow purported to invokeSection 18. Gratiaen. J. took the view that Section 18 of theRent Restriction Act had no application where the originalcontractual tenancy has been determined according to thecommon law and all that the former tenant thereafter enjoyedwas a statutory protection which was personal to him. Gratiaen,J. expressed the view that Section 18 only permits the widowor a relation of a deceased tenant to claim a fresh tenancy if thelatter was a tenant in the strict sense of the term. That is ifthere was still subsisting at the time of the death a contractualtenancy between the landlord and himself. However in
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Karunaratne v. Fernando!51 Sirimanne, J. stated that it is fairlyobvious that the legislature intended to extend the sameprotection which the tenant enjoyed to his widow, children ordependants … to give the word tenant a restricted meaningof contractual tenant would defeat the very purpose, of thelegislation. It would expose the deceased tenants family to theveiy danger which that section was intended to avert, fora landlord by resorting to the simple device of sending atenant a notice to quit could, by his unilateral act bring theoperation of Section 18 to a standstill. This conflict betweenthe decisions in Hensmen v. Steuen(Supra) and Karunaratnev. Femando(Supra) was finally resolved by Section 36 ofthe Rent Act of 1972.
It is to be noted that in Hensmen v. StephenfSupra) thelandlord has instituted action against the tenant for ejectmentand the matter was pending before Court and in Karunaratnev. Femando(Supra) the tenant has died after quit notice wasserved on him. Both Gratiean. J. and Sirimanne, J. sought tointerpret the application of Section 18 of the Rent RestrictionAct according to their respective thinking but in both cases thedeceased tenant remained a tenant “in the strict sense ofthe term”. However in the present case the tenancy has beendetermined and consent decree entered. Mr. Premadasaargued that the landlord and the tenant cannot in law andhave no right to take away the rights given to the survivingspouse. There is no quarrel on that. But there was no“surviving spouse” when the consent decree was entered.Suppose the settlement was for the tenant to leave thepremises at the end of two years and the tenant died before theexpiry of that two year period could the surviving wife claim tosucceed to the tenancy under Section 36? I think not. Here thedeceased Defendant surrendered the tenancy which he couldrightfully do. Situation may have been different if the presentPetitioner sought substitution under Section 398 allegingfraud or collusion between the landlord and the deceasedDefendant. There was no such allegation. On the contrary shesought to claim the benefit under Section 36 on the basis of asurviving spouse.
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When the parties reached a settlement and the consentdecree entered setting out the terms of settlement as set out in‘X-4’ the deceased Defendant in effect surrendered his tenancyand thereafter a new contract of tenancy for a fixed termwas created between the parties. There was therefore theemergence of a contractual tenancy which was determinedwith the death of the deceased Defendant. The said tenancywas a common law contract which fell outside the operation ofthe Rent Act. Hence it is my view that the Petitioner is notentitled to come under Section 36 and claim tenancy asprovided for under Section 36.
It is also relevant to mention that in terms of theagreement arrived at between the deceased Defendant and thePlaintiff, the deceased Defendant only agreed to deposit thesum of Rs. 177/- hitherto being deposited at the Kotte UrbanCouncil and the word “rent” has been carefully left out.However, in Karunaratne u. Femando(Supra) it was held that“acceptance of rent by a landlord after notice to quit has beengiven by him to the tenant does not by itself operate to renewthe contract of tenancy if there is evidence showing that therewas no consensus ad idem between the parties for sucha renewal of the contract”. The Plaintiff merely gave theDefendant a concession in that he was allowed to remain untilhis death and sought to execute the decree soon after the deathof the deceased Defendant.
Mr. A.K. Premadasa, P.C. also submitted that the termsof settlement ‘X-4’ did not provide for ejectment. In AbdulRahuman v. Marimuttu(Supra). The Plaintiff sued theDefendant for ejectment and damages. However the actionwas settled and of consent a decree was entered by whichinter alia the Defendant was to be permitted to remainas a tenant for period of 1 1/2 years at an agreed monthlyrental of Rs. 75/- payable each month. The consentdecree provided writ of ejectment was to issue forthwithif the Defendant defaulted in the due payment of the rent.
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However the consent decree was silent as to what shouldhappen at the expiration of the 11/2 years as agreed betweenparties. The Defendant died before the expiry of the 11/2 yearperiod. The administratrix of the estate asked –
to be substituted as the Plaintiff and
for writ of ejectment as the said 11/2 years has expired.Gratiaen, J. stated “as the consent decree did not providefor what was to happen at the expiry of the tenancy itseems to me that the only remedy available to the originalPlaintiff and upon his death to his successors in law wasto enforce these contractual rights in a regular action. Itis not permissible to imply any term by which the partiescould be presumed to have agreed that writ of ejectmentcould issue as a matter of course after the expiry of thetenancy. Existence of such an implied term must be ruledout because there is an express agreement providing forwrit of ejectment to issue in certain other eventualityWrit of ejectment will not issue as a matter of course. It canonly issue on application. If the judgment debtor fails tocomply with the judgment and decree entered against himthen it is inevitable that the judgment creditor would comeback to Court for execution. As to whether there is anexpress provision in the decree for execution or it is thereby implication does not arise.
It is redundant to incorporate in the decree that writ ofexecution will lie upon the death of the deceased as it is aconsequential step the Plaintiff must take as Soza, J. says inThiagarajah v. Peiris(Supra) that execution proceedings are sodesigned to assist the judgment creditor to recover the fruitsof his judgment and not to afford facilities to the judgmentdebtor to defeat or delay the execution of the decree of Court.However, if the writ was to issue without notice then it isimperative that the decree contains a stipulation to that effect.
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It is very relevant to mention that there is a judgment anda decree entered. It has not been set aside by a Superior Court.Therefore the judgment creditor could seek satisfaction of thedecree. An application for substitution under Section 398therefore has no legal basis and is misconceived in law.
As regards Mr. Premadasa’s submission that theRespondent is not entitled to a declaration of title to the entireupstair of the premises No. 594-1 /1, Nawala Road. Rajagiriyaas her entitlement is only to an undivided 1/2 share of theupstair, it is unnecessary to go into this aspect as it is a matterto be resolved between the co-owners. The consent decreeentered did not relate to the Plaintiffs ownership.
The Petitioner’s application for revision is dismissed withcosts fixed at Rs. 2500/-
JAYAWICKRAMA, J. – I agree.
Application dismissed.