Karunawathie v Jabir and Others
JABIR AND OTHERSCOURT OF APPEALDISSANAYAKE, J.
D.C. MT. LAVINIA 123/94 REAUGUST 27, 2003OCTOBER 27, 2003
Civil Procedure Code, sections 27(2), 403 and 760(A) – Defendant-appellantdead-Abatement of appeal -Application for relisting – Locus standi-RentAct,No. 7 of 1972, sections 36 and 36(2)(b) – Applicability – Law applicable whenthe appellant dies.
The petitioner filed an application to set aside the order abating the appeal and. for an order to substitute the petitioner in the room of the deceased defendant-appellant and to relist the appeal.
The plaintiff-respondent contended that the., defendant-appellant who is thewife of the deceased has no locus standi on the basis that the petitioner cannotsucceed to tenancy in terms of section 36 of the Rent Act as the subject matteris a business premises.
While section 36 of the Rent Act lays down the substantive lawwith regard to succession to a tenancy upon the death of atenant, it does not refer to continuance of an appeal upon thedeath of a party to an action.
The law applicable in a situation where the appellant dies is setout in section 769(A) of the Civil Procedure Code.
The petitioner being the legal wife and lawful heir of thedeceased defendant-appellant is prima facie entitled in law tomake an application for the substitution of herself in the room ofthe deceased defendant-appellant (husband) and is a fit andproper person to be substituted.
When the defendant-appellant dies the registered attorney-at-law has no capacity to act any more in the case.
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APPLICATION for relisting of the appeal and substitution.
Case referred to:
Punchlhewa v Abeywardane 1999 1 Sri LR 67 (distinguished)
Wray Premaslnghe for petitioner.
Riza Muzni for plaintiff-respondent.
December 12, 2003.
SOMAWANSA, J.The petitioner filed the instant application to set aside the oiorder made by this Court on 07.05.2002 abating the appeal of the1** defendant-appellant and for an order to substitute thepetitioner in the room of the 1st defendant-appellant and to re-listthe appeal for argument. When this application was supported on11.07.2003 by the counsel for the petitioner the counsel for theplaintiff-respondent-respondent raised a preliminary objectionthat the petitioner who is the wife of the 19t defendant-appellanthas no locus standi to make this application on the basis that thepetitioner cannot succeed to the tenancy in terms of section 36 of 10the Rent Act No. 07 of 1972 as the subject matter is a businesspremises.
The relevant facts are the plaintiff-respondent instituted theinstant action on the basis that the 1st defendant-appellant whowas admittedly the tenant of the premises in suit had unlawfullyand wrongfully sub-let the said premises to the 2nd to 5thdefendants-respondents without the prior written sanction of theplaintiff-respondent. At the conclusion of the trial, the learnedDistrict Judge by his judgment dated 28.08.1997 held with theplaintiff-respondent-respondent and the 1sl defendant-appellant 20appealed against the said judgment. While the appeal waspending on or about 30.01.2002 1st defendant-appellant died and
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the plaintiff-respondent-respondent filed a motion in January2002 and drew the attention of this Court to the fact that the 1stdefendant-appellant was dead.
On 08.02.2002 this Court issued notice on the registeredattorney-at-law of the 1st defendant-appellant on record. Accordingto the minute dated 05.03.2002 the said notice was returnedundelivered and as per minute dated 07.05.2002 the appeal wasabated. One year later in May 2003 the petitioner had made the 30instant application to substitute the petitioner in the room of thedeceased 1st defendant-appellant and to re-list the appeal. Whenthis application was supported by the counsel for the petitioner thesaid objection was taken by the counsel for the plaintiff-respondent-respondent and the parties agreed to resolve the matter by way ofwritten submissions.
It is submitted by the counsel for the petitioner that the orderabating this appeal was made at the instance of an applicationmade by the plaintiff-respondent-respondent to this Court informingof the death of the 1st defendant-appellant and not in the ordinary 40course of the appeal coming up for hearing and that the notices hadbeen issued on the previous attorney-at-law who’s proxy had beenrevoked in the District Court on 22.09.2002 and a new proxy of Mrs.Arulpragasam filed on 22.09.1998.
It is contended by the counsel for the plaintiff-respondent-respondent that the revocation of the proxy of the earlier attorney-at-law for the 1sl defendant-appellant and the appointment of thenew registered attorney-at-law had been done in the original Courtand not in this Court. Hence the notice issued by the registry of thisCourt had gone on the registered attorney-at-law whose name 50appeared in this Court and that the lapse was clearly on the part ofthe deceased 1st defendant-appellant who had failed to file the newproxy in the registry of this Court. Be that as it may, irrespective ofwhether the deceased 1st defendant-appellant revoked the proxy ofhis registered attorney-at-law and appointed a new registeredattorney-at-law or not in terms of section 27(2) of the CivilProcedure Code when the 1st defendant-appellant died theregistered Attorney-at-law had no capacity to act any more in thiscase. In the circumstances, it was submitted by counsel for the
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plaintiff-respondent-respondent that in view of the decision inPunchihewa v Abeywardenst" that notice of the entering of anorder of abatement must be given to a party to the action andnot to an outsider and as the petitioner was not a party to theaction she was not entitled to notice. However I am unable toagree with this submission for in that case the Supreme Courtconsidered the position where a case was abated where bothparties were still alive and the order for abatement entered bycourt ex mero motu without notice to the plaintiff or hisregistered attorney-at-law. The position where the partyprosecuting the matter dies has not been considered in thatcase and hence the said case has no application to the instantaction.
Counsel for the plaintiff-respondent-respondent alsocontends that the petitioner on her own showing has no status tomake the'present application either to have the abatement ordervacated or to have herself substituted in the room of the 1stdefendant-appellant as the abatement order could be vacated onlyin terms of section 403 of the Civil Procedure Code by a spouse orchild of the deceased appellant who fulfils the conditions specifiedin section 36(2)(b) of the Rent Act, as amended and this locusstandi cannot be conferred on an individual whom the relevantstatute, in the instant case the Rent Act, refuses to recognize, dueto the non fulfillment of the conditions specified therein and theapplication of the petitioner has to fail at the threshold itself. Hereagain, I am unable to agree with the submission of the counsel forthe plaintiff-respondent-respondent. For it is not substantive lawthat would be applicable to the issue at hand but procedural law.The substantive law lays down the rights and duties of parties andmatters that give rise to causes of action while the procedural lawsets out the procedure that should be adopted and followed by an
aggrieved party to seek redress from the Court. The provisions ofthe Civil Procedure Code lays down the procedure to be adoptedand matters incidental thereto, as for instance the death of a partypending the action.
It is to be seen that the instant appeal is from the judgment of thelearned District Judge of Mt. Lavinia dated 28.08.1997. In the instant
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appeal the matter for determination or the scope of the appeal iswhether the learned District Judge has come to a correct finding. Inthe instant inquiry what we have to determine is whether the petitioner
has the capacity to be in the room of the 19t defendant-appellant, beinghis legal wife solely for the purpose of continuance of the presentappeal. It appears that matters raised in the written submissionstendered on behalf of the plaintiff-respondent-respondent invites us toinquire into matters that had taken place even after the judgment wasdelivered and also to apply substantive law and determine the rightsof parties at this stage which is manifestly beyorid the scope of thepresent inquiry or the appeal.
It is to be noted that there is a distinct difference betweensubstitution and succession. While section 36 of the Rent Act laysdown the substantive law with regard to succession to a tenancy uponthe death of a party to an action, the marginal note clearly indicatesthat this section deals with ‘continuance of tenancy upon the death oftenant’ which in fact sets out the mode of succession and alsoprescribes a cause of action to the land to treat the occupants of rentalpremises as trespassers and to evict them if they do not qualify tosucceed to the tenancy as set out therein.
It is to be seen that the law applicable in a situation where theappellant dies is set out in section 760(A) of the Civil Procedure Code.The said section reads as follows:
“Where at any time after the lodging of an appeal in any civilaction, proceeding or matter, the record becomes defective byreason of the death or change of status of a party to theappeal, the Court of Appeal may in the manner provided in therules made by the Supreme Court for that purpose, determinewho, in the opinion of the court, is the proper person to besubstituted or entered on the record in place of, or in additionto, the party who has died or undergone a change of status,and the name of such person shall thereupon be deemed tobe substituted or entered of record as aforesaid".
It is common ground that the 1st defendant-appellant died onor about 30.10.2001 leaving the petitioner and the minor daughteras the 1S1 defendant-appellant’s heirs. The fact that the petitionerwas the legal wife of the petitioner is borne out by the Marriage
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Certificate marked P1. It appears that the petitioner has made thisapplication in terms of section 760(A) of the Civil Procedure Coderead with the provisions of the Supreme Court Rules to substitutethe petitioner in the room of the deceased 1s' defendant-appellantin this appeal for the purpose of prosecuting this appeal.
In the circumstances I would over-rule the objections raised bythe plaintiff-respondent-respondent and hold that the petitioner uobeing the legal wife and lawful heir of the deceased 1st defendant-appellant is prima facie entitled in law to make this application forthe substitution of herself in the room of the deceased 1stdefendant-appellant and that she is a fit and proper person to besubstituted in the room of the defendant-appellant. Accordingly theapplication for substitution is allowed and the petitioner issubstituted in the room of the 1st defendant-appellant as 1ASubstitute defendant-appellant. The substitution is made solely forthe purpose of prosecuting this appeal. The Registrar is directed toamend the caption accordingly. The 1A substituted defendant-150appellant is entitled to costs of this inquiry fixed at Rs. 5000/-.
DISSANAYAKE, J. – I agree.
Application for substitution allowed.
KARUNAWATHIE v. JABIR AND OTHERS