102-NLR-NLR-V-53-JUHAR-et-al.-Appellants-and-RAMANATHAN-Respondent.pdf
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SWAN J.—Juhar v. Ramanathan
1952Present :Swan J.
JUHAR et al., Appellants, and RAMANATHAX, RespondentS. C. 41—C. R. Trincomalec, 9,283
Landlord and tenant.—Action for ejectment and damages—Joinder of tenant and sub-tenant—Propriety of such joinder—Civil Procedure Code, s. 14.
When a contract of monthly tenancy has been determined by due notice toquit, a sub-tenant may be joined with the tenant in an action instituted by ihelandlord for ejectment and damages.
.^^.PPEAL from a judgment of the Court of Requests, Trineomalee.
H. W. Tambiah, for the defendant appellants.
E. R. S. R. Coomaraswamy, for the plaintiff respondent.
Cur. adv. unit.
June 5, 1952. Swan J.—
The plaintiff brought this action against the two defendants to havethem ejected from premises bearing assessment No. 304, Division No. 3.Trineomalee, and to recover from them, jointly and severally, damagesat the rate of Rs. 22/39 per mensem- from 1st August, 1951, and costsof action. It was averred in the plaint that the plaintiff had purchasedthe premises in question on May 18, 1951, for his own occupation, andthat he had on May 26, 1951, duly informed the 1st defendant of hispurchase, and that, in the same letter, he required the 1st defendantto pay rent to him as from June 1, 1951, and to vacate the premiseson or before July 31, 1951. It was further stated iu the plaint thatthe 1st defendant had acknowledged the plaintiff as his landlord andpaid him rent- till July 31, 1951, but had failed to vacate the premises ashe was required to do by the notice dated May 26, 1951. It was alsoalleged in the plaint that the 1st defendant had sub-let the premises tothe 2nd defendant who was in occupation of the premises, and thatthe 2nd defendant was made a party to the action because he was insuch occupation.
1 (2938) 2 O. L. W. 343.* (1914) 2 C. A. R. 49.
* (1936) 1 C.L.J Notes 49* (1922) 1 Times 47.
« (1910) 3 S. C. D. 80.
SWAN J.—Juhar o. Ramanathan
455
The defendants filed a joint answer in which they admitted that theplaintiff was the owner of the premises but stated that they could notadmit or deny that he had purchased them for his own use and occupation-.They put the plaintiff to the proof of the fact that he required the premises;for his use and occupation, and also put him to the proof of the factthat the 1st defendant had sub-let the premises to the 2nd defendant.The 1st defendant alleged that he was not in arrears of rent and hencehad not quitted the premises. The notice to quit was expressly denied.
The parties went to trial on the following issues; —
Are the premises in question reasonably required by the plaintiff
for his own use and occupation ?
(a) Is the first defendant in occupation of the premises ? or
(b) has he sub-let the said premises to the 2nd defendant or
any other person ?
If either issue 2 (a) or 2 (b) is answered in favour of the plaintiff
are the defendants liable to be ejected from the premises ?
Is there a misjoinder of parties inasmuch as there is no privity of
contract between the plaintiff and the 2nd defendant ?
The learned Commissioner answered all these issues in the plaintiff’sfavour and gave him judgment as prayed for with costs. The onlypoint urged by Counsel for the appellant was the issue of misjoinder.Mr. Tambiah contends that there was a misjoinder of parties and causesof action, and that the entire action should have been dismissed. Butthe objection taken at the trial was only as to misjoinder of defendants.In the circumstances I am not prepared to agree to Counsel’s submission,that if, in point of fact, there was a misjoinder of parties and causesof action this Court must dismiss the plaintiff’s action against bothdefendants. Where a plea of misjoinder of defendants and causesof action is taken it must be tried as a preliminary issue ; and the Courtshould, if it finds against the plaintiff, give him an opportunity of electingagainst which defendant or defendants he should proceed. But in thiscase I cannot see that there is a misjoinder of causes of action ; so thatthe only question I have to decide is whether the 2nd defendant couldhave been made a party to the action.
In the case of Kudoos Bhai v. Visvalingam 1 my brother Nagalingam,siting alone, held that the joinder of the sub-tenant in an action bythe landlord against his tenant was improper but that the sub-tenantwas bound by a decree in ejectment against the tenant, and that, ifthe sub-tenant refused to quit, the landlord could take proceedingsagainst him under Section 325 of the Civil Procedure Code. This viewof my learned brother, namely, that the sub-tenant was bound by thedecree, was in conflict with the judgment of de Kretser J. (with whomSoertsz J. agreed) in the case of Siripina v. Ekanaike 2. There it washeld that where a lessor had obtained a decreee for possession againsta lessee he was not entitled to invoke the provisions of Sections 325 and326 of the Civil Procedure Code against a sub-lessee holding with the1 (1948) 50 N. L. R. 59.* (1944) 45 N. L. R. 403.
466
' SWAN .1-—Juhar v. Ram ana than
consent of the lessor or his representative. But my learned brotherthought that the dictum of de Kretser J. on this point was obiter. Thisquestion was considered by Gratiaen and Gunasekara JJ. in the caseof Justin Fernando v. Abdul Rahaman 1 and they held that a sub-tenant •was not bound by the decree entered against the tenant unless he wasjoined as a party to the proceedings. Gratiaen J. at the end of hisjudgment, summarizing his conclusions, stated, inter alia, that afterthe tenant’s rights had been extinguished to the knowledge of thesub-tenant the landlord, qua owner, was entitled to sue the overholdingsub-tenant, qua trespasser, for ejectment. He added that in thatparticular case it tvas not necessary to decide Avhether in such an actionfcbfe overholding sub-tenant and the tenant whose rights had beenextinguished could properly be joined as co-defendants in the sameproceedings. In the course of the judgment however, he stated, “ Asat present advised I am not satisfied that the landlord cannot obtaina decree for ejectment against the overholding sub-tenant in an actionin whichthetenantisalso joined,in order toachieve finalityin the
litigationItis by no means clearthat our Code of Civil
Procedureregardingthe joinder ofdefendantsand causes ofaction
prohibitsanactionsoconstituted,provided that a cause ofaction
against only a single defendant is not combined with a cause of actionagainst both. I refrain, however, from expressing any obiter dictumon this point which might cause embarrassment when the question israised specifically.”
In my opinion the cause of action against both the defendants in thiscase is one and the same. “ Cau&e of action ” is defined in the Codeas ' ‘ the wrong for the pre'ention or redress of which an action may bebrought, and includes the denial of a right, the refusal to fulfil an obli-gation, the neglect to perform a duty, and the infliction of an affirmativeinjury.” The plaintiff is in this action seeking to have the defendantsejected from the premises in question, the 1st defendant because he hasno right to remain in occupation after his tenancy was determinedby notice to quit, the 2nd defendant because he has no right to remainin occupation once he became aware that the 1st defendant’s rightswere extinguished. The relief which the plaintiff is claiming againstthe two defendants is identical—namely, to have them ejected and toclaim ..damages jointly and severally from them as from the date ofexpiry of the notice to quit.
If the cause of action against both defendants is the same there canbe no question that they can be sued together in the same action becauseSection 14 of the Civil Procedure Code provides that “ all persons maybe joined as defendants in whom the right to any relief is alleged to existwhether jointly, severally, or in the alternative in respect of the samecause of action.”
1 dismiss the appeal with costs.
1 (1951) 52 N. L. B. 462.
Appeal dismissed.