015-NLR-NLR-V-50-KUDOOS-BHAI-Appellant-and-VISVALINGAM-Respondent.pdf
NAGALINGAM J.—Kudooa Shat v. V isvalingam.
59
1948Present : Nagalingam J.
KUDOOS BHAI, Appellant, and VTSVAUNGrAM, Respondent.
S. C. 84—G. R. Colombo, 4,941.
Landlord and tenant—Action for ejectment—Joinder of sub-tenant asdefendant—Improper—Sub-tenant bound by decree—Liable to beejected—Civil Procedure Code, Section 325.
In an action by a landlord against his tenant for ejectment the joinderof a sub-tenant as defendant is improper. A sub-tenant is, however,bound by a decree for ejectment entered against the tenant and is liableto be ejected. Should the sub-tenant refuse to quit, it would be opento the landlord to take proceedings under section 325 of the CivilProcedure Code.
-A.PPEAL from a judgment of the Commissioner of Requests, Colombo.G. P. J. Kurukulasuriya, for 2nd defendant, appellant.
H. W. Tambiah, for plaintiff, respondent.
Our. adv. vult.
December 6, 1948. Nagaunqam J.—
A point of some importance in the law of landlord and tenant comesup for adjudication on this appeal. The plaintiff let to the 1st defendanton the terms of a monthly tenancy certain premises referred to in theplaint. The 1st defendant admittedly fell into arrears with his rent, andafter due notice terminating his tenancy this action was instituted againsthim by the plaintiff claiming arrears of rent, ejectment and damages foroverholding.
It would appear that the 1st defendant had sublet the premises to the2nd defendant. The action as originally instituted was against the 1stdefendant alone who was named the sole defendant. After service ofsummons which was effected on him by way of substituted service fivemonths after action, an attempt appears to have been made to compromisethe suit. The 1st defendant offered to give over possession of the premiseswith the sub-tenant but the plaintiff insisted upon vacant possession ; the.first defendant apparently undertaking to file action against the sub-tenant and have him ejected the -action was by consent of parties putoff for a period of four months. There is no evidence in the case as towhat steps if any were taken by the 1st defendant to implement his partof the terms of settlement. But, the record shows that three monthslater the plaintiff moved to amend the plaint with the 1st defendant’sconsent by bringing on the record the 2nd defendant as a party “ sothat he may have notice of this action and that he may be bound by thedecree for ejectment to be entered in this case.” The amendment was
60
NAGAX.INGAM J.-—Kudoos Bhai v. VisvaHngam.
allowed and summons was served on the 2nd defendant who filed answerdisputing, inter alia-, the right of the plaintiff to add him as a party. The1st defendant filed no answer and pending the trial of the action againstthe 2nd defendant, decree for ejectment was entered against the 1stdefendant.
At the trial between the plaintiff and the 2nd defendant the learnedCommissioner disposed of the plea raised by the 2nd defendant in thefollowing words :—
“ The 2nd defendant is only sought to be bound by the decree forejectment …. there is no privity of contract between theplaintiff and the 2nd defendant, but the 2nd defendant, the sub-tenantshould have notice of the action to be made bound by the decree forejectment.”
It has been contended on appeal that the amended plaint discloses nocause of action against the 2nd defendant and that no relief in point offact was claimed against him in the prayer to the plaint. On behalf ofthe plaintiff, however, an argument was advanced seeking to justify theaddition of the 2nd defendant as a party defendant on the analogy of theaddition of puisne encumbrancers to a mortgage action as partiesdefendant. I may say at once that there is no parallel between an actionupon a mortgage bond and an action by a landlord against his tenant.An action by a mortgagee is one to enforce a real right of property, whilean action by a landlord is entirely one involving personal rights. Thedistinction will be better appreciated if the full significance of the term“ real right ” is borne in mind. “ A real right is a right in a thing whichentitles the holder to vindicate his right, that is, to enforce his right inthe thing for his own benefit as against the world ; that is against allpersons whatsoever.” Wille, Principles of South African Law, 2nd edition,153. A slight acquaintance with the history of hypothecary actions inour courts will reveal the considerations that led to the formulation ofthe rule that every person who claims an interest in the mortgagedproperty acquired by him subsequent to the date of the hypothec shouldbe added a party defendant to the hypothecary action. But, theseconsiderations are totally inapplicable to an action by a landlordwho sues his tenant on the basis of a monthly tenancy. It is needless tosay that different considerations would apply under our law to leases andsub-leases entered into notarially.
A landlord cannot seek to enforce his right of recovery of possessionof the property let “ against all the world”, but only against his tenant.Hence no person other than the tenant can properly he sued by a land-lord for ejectment. There is the high authority of Voet for this pro-position who lays down, 19—2—21, “ non tarmen locatori primocontra secundum conductorem ull ex locato actio est, cum nihil inter eosconveniri sit, ” that is to say in the words of Nathan in his Common Lawof South Africa, Vol. 2, Edt. 1904, p. 807, “ a lessor will not have anaction on the lease against a sub-lessee since there is ho contract betweenthe parties and a person cannot sue or proceed upon the contract of athird party.”
VAOAT.TMfiAM J.—Kudooa Bhai v- Viavalingam.
61
It is therefore obvious that the contention put forward by theplaintiff for adding the 2nd defendant as a party defendant cannot besustained.
No other argument has been adduced for adding the 2nd defendantas a party defendant to this action. But, it has been urged on behalf ofthe plaintiff that unless the 2nd defendant is brought on the record hewould be left with no remedy to recover possession of the property. Ido not think so. The answer to the difficulty propounded is to be soughtin section 324 of the Civil Procedure Code. A decree for ejectmententered in favour of the landlord against the tenant is a decree forrecovery of possession of immovable property within the meaning ofsection 323 and in terms of section 324 on receipt of the writ it is theduty of the Fisoal to deliver over possession of the property describedin the writ to the judgment creditor, if need be, by removing anyperson bound by the decree who refuses to vacate the property. Tothis provision there is a proviso which directs that “as to so much ofthe property as is in the occupancy of a tenant or other person entitledto occupy the same as against the judgment-debtor and not bound bythe decree to relinquish such occupancy,” the fiscal shall give, whatmay be termed for the sake of brevity, constructive possession.
The first point to decide is whether a sub-tenant is a. person who canbe said to be bound by the decree entered in favour of the landlordagainst the tenant so as to subject him to removal by the Fiscal underthe main provision of this section. It is not gainsaid that members ofthe family of the tenant such as the wife, child or servant are personsfalling within the category of persons bound by the decree and who neednot therefore be named defendants in the action or against whom aseparate action need be brought to have them removed from the premisesin order to deliver possession to the judgment-creditor. But, it is saidthat the case of a tenant is specifically dealt with in the proviso and thatin regard to a tenant only constructive possession is possible in accordancewith it. The phrase, “ and not bound by the decree to relinquish suchoccupancy ” qualifies also the word “ tenant ” in the proviso. Theproviso therefore deals with tenants not bound by the decree therebyimplying recognition of a class of tenants who would be bound by thedecree. A common instance of a tenant who would not be bound by thedecree entered against his landlord is the case of a tenant in occupationof property sold in execution against his landlord at the instance of ajudgment-creditor of the landlord. No argument is necessary in such acase to demonstrate that the tenant is not bound by the decree and cannotbe removed from the premises. Delivery .of possession to the purchaserin such a case can only be a constructive one. In the case of a sub-tenant where judgment has been entered against the tenant himself theposition is different. Such a sub-tenant is one who is bound by thedecree. The right of the sub-tenant to continue in occupation is entirelydependent on the title of his landlord, the tenant, and on the tenancyof the tenant being determined, the sub-tenant-s right too comes to anend and with reference to execution proceedings had by the landlordagainst the tenant, the sub-tenant is in no better position than amember of the family of the tenant.
62
N AG ALIN GAM J.—Kudooa Shai v. Visvalingam.
This view is given expression to by de Kretser J. in tbe case of Siripinav. JSkanayake 1.
“ One can conceive of a tenancy where the lessee of a house or aset of rooms lets in some person into one room—such a person willbe more or less his dependant.”
This case has however been relied upon to support the contentionthat a sub-tenant is not bound by the decree entered against the tenant.The facts of the case show that the sub-tenant was one who had beenlet into possession with the consent of the lessor or his representative andthat he had besides the rights of an improver. The learned Judge heldthat the sub-tenant in those circumstances was not liable to be evictedunder the decree obtained by the lessor against his lessee. The case istherefore really no more than an authority for the proposition that wherethe sub-tenancy is created with the consent of the landlord a decree enteredagainst the tenant cannot be enforced against the sub-tenant.
The learned Judge however proceeded to discuss the question generallyas to the extent a sub-lessee was bound by a decree against the lessee andexpressed the view, “ the ruling principle is that no person is boundby the decree unless he is a party to the action. Certain subordinatesmay be bound by the decree but a tenant’s position is different. Ordi-narily he would not be bound by the decree unless he were a party to thecase. Section 324 Seems to recognise such a situation for it says, thatif the Fiscal finds the property in the occupancy of a tenant or other personentitled to occupy the same as against a judgment-debtor and not boundby the deeree to relinquish such occupancy he shall give possession inthe manner indicated, that is constructive possession”. The learnedJudge appears to have been influenced in arriving at this view by thecase of Ezra v. Gubbay 2. That was a case where a sub-tenant resistedthe landlord in obtaining possession of the premises under a decreeentered against the tenant and Rankin J. after considering the provisionsof Order 21, Rules 97 and 99 of the Indian Civil Procedure Code corre-sponding to sections 327 and 328 of our Code held that the remedy of thelandlord was by way of a separate action against the sub-tenant. Butthis case was not followed subsequently. Page J. sought to distinguishit in the case of Ramkissendas and another v. Binjraj Chowdhury andanother 3. That was a case where certain sub-tenants instituted an actionagainst their landlords who had obtained a decree for ejectment againstthe latter’s tenant for a declaration that the landlords are not entitledto have them ejected under that decree. It was held that that actionwas wholly unjustifiable and further that the sub-tenants were boundby the decree entered against- the tenant and that the sub-tenants werenot necessary parties to the action instituted against the tenant by thelandlord. An excerpt from the judgment of Page J. will bear repro-duction as it reflects effectively certain aspects of the argument at theBar ;
The effect of that decree (in favour of the landlords against the tenants)was that the present (jefendants who were the head landlords of the
1 (1944) 45 N. L. JR. 403.* A. I. R. (1920) Calcutta 706.
3 A. hfR. (1923) Calcutta 691.
NAG AX. INGAM. J.—Kudoos Bhai v. Visvalingam.
63
plaintiffs were entitled to possession of those premises as against theplaintiffs and against the plaintiffs’ landlords and that the plaintiffshave not and have never suggested that they had a shadow of aright to remain in possession after the decree had been passed againsttheir immediate landlords. What they say is this. That althoughit is perfectly true that they have no legal ground for resisting theexecution of that decree yet as they have not been made parties tothe action they were not bound by the decree.
Or in other words unless a landlord chooses to make all thesub-lessees and everybody who may have acquired .an interest throughthose under-tenants parties to this action he could only executeagainst those persons against whom decrees have been obtained withthe result that he may have to bring any number of suits ultimatelyagainst other persons who remained in possession.
If that were so it would, I think, tend unduly to multiply the numberof suits.
It would be seen that the view taken was that a sub-tenant is boundby the decree entered against the tenant. In the case of JJferji Ibrdhimjiv. Tadin Mangal1 where again Order 21, Rules 97 and 99 came up forconsideration on a resistance by a sub-tenant to execution of a decreeentered against the tenant in favour of the landlord, Macleod C.J. said,
“ In this case the tenants do not say they are in possession of thesuit property on their own account or on account of some person otherthan the judgment debtor. They admit that they are tenants of thejudgment debtor. The question whether they are servants or agentsof the judgment debtor and not tenants is not really relevant to thequestion at issue, because in either case they are not entitled to obstructthe decree holder.”
It will be realised that the effect of this holding is that had the learnedChief justice been called upon to construe Order 21, Rule 35 (our section324), he would have had no hesitation in holding that a sub-tenant wasbound by the decree against the tenant and the only reason why he didnot consider that provision was because the case came up for adjudicationafter the stage had been reached of obstruction by the sub-tenant. Thelearned Chief Justice expressed himself more fully in the later case ofJivam Jadowj and others v. Noioraj Jamshedji Plumber 2, where too thesections corresponding to our sections 325, 327 and 328 came up forconsideration and particularly the words, “ person other than thejudgment debtor claiming in good faith to be in possession of the propertyon his own account or on account of some person other than the judgmentdebtor ; ” in regard to a proceeding taken with reference to an obstructionby a sub-tenant in delivering possession of the property to the landlordon a decree against the tenant:—
“ It seems to me clear that a sub-tenant cannot claim to be inpossession of property on his own account and if admittedly hisimmediate landlord is the tenant and judgment debtor he cannot be in1 A. I. It. (1922) Bombay 273.2 A. I. R. (1922) Bombay 449.
64
N A GAININ' GAJM J.—Kvdoos Bhai v. V isvcdingam.
possession on account of some person other than the judgment debtor.It is obvious therefore that the execution plaintiff is entitled to getpossession of the premises from the sub-tenant ; and if any otherconstruction were placed on rules 97 and 99 obstruction could be causedto an execution plaintiff in a suit for possession in a manner whichwas never contemplated by the Code.
Mr. Jinnah, for the fruit-seller (the sub-tenant), relies upon thedecision in Ezra v. Gubbay {svspra'). No doubt the learned Judge indismissing the execution plaintiff’s application held on the construc-tion of Rule 99 that the under-tenant can be said to claim to be inpossession on his own account. With all due respect it appears to meto require explanation, for, I cannot see how it can be said that anunder-tenant is in possession of the premises on his own account. Andin my opinion those words can only refer to a person who claims to bein possession on his own title. Otherwise it would not be necessary toadd the words, ‘ on account of some person other than the judgmentdebtor ’ the person in possession may either claim to be in possessionon his own title or as tenant of some person other than the judgmentdebtor. But, if he claims to be in possession as a tenant of the judgmentdebtor, then it seems to me that the Court is bound to make the orderin favour of the execution plaintiff, otherwise a landlord may get adecree for ejectment against his tenant, but may find that decree anabsolute nullity if the tenant had sublet the premises as he may haveagain to file a suit against the sub-tenant.”
The main provision of section 324 of our Code corresponding to Order21, Rule 35 and section 325" corresponding to Order 21, Rule 97 came upfor consideration in the Calcutta High Court in the case of SheikhYusuf v. Jyotish Chandra Banerjee and others1 before a Bench oftwo judges. In that case the question whether a sub-tenant is a personwho comes within the class of persons bound by the decree'under thefirst part of section 324 (Order 21, Rule 35 Indian Civil Procedure Code)was specifically discussed as well as the legal position of a sub-tenant whoobstructs delivery of possession of property to the landlord in executionof a decree against the tenant. In that case the landlord in execution ofa decree for ejectment against his tenant who had sublet portions of thepremises to various sub-tenants recovered possession of all the buildingsbarring one of which the petitioner the sub-tenant was in possession andwhich he refused to vacate. The landlord applied to the Court forPolice help to obtain possession by ejecting the petitioner. The petitionerthen made an application to Court under section 151 of the Indian CivilProcedure Code corresponding to our section 839 urging that he shouldnot be evicted in execution of the decree against his lessor but that theproper procedure to be followed by the landlord was that under Order 21,Rule 97 (our section 325). Suhrawardy J. in delivering judgmentsaid :—
“ The decree under execution is a decree for delivery of possessionof immovable property and was being executed under Order 21, Rule35 under which possession of the property shall be delivered, if necessary1 A. I. R. (1932) Calcutta 211.
NAG AT., IN GAM T.—Kudoos Bhai v. Visvaljngam.
65
by removing any person bound by the decree 'who refuses to vacatethe property. The question therefore that falls for determination iswhether the petitioner is a person bound by the decree. If he is not so,the only remedy open to the decree-holder is to proceed under Order 21,Rule 97. If he is so, he is liable to be evicted in execution of the decreeunder Rule 35. The learned advocate for the petitioner argues thatthe words ‘ any person bound by the decree ’ are synonymous with‘judgment-debtor’. In my judgment the words include judgment-debtor as well as any person who may be held under the law as boundby the decree. The word * judgment-dehtor ’ is defined in S. 2 (10)Civil Procedure Code, as meaning any person against whom a decreehas been passed or an order capable of execution has been made.If the scope of Rule 35 is limited only in respect of the person againstwhom a decree has been passed or an order capable of execution hasheen made then it would have been much easier to use the expression
judgment-debtor ’ in the rule instead of the descriptive clause
any person bound by the decree ’.
Now it has to be seen whether the petitioner is a person who isbound by the decree. Under Section 115, T. P. Act, he being asublessee his interest ceased with the forfeiture of the lease and heceased to have any tangible right to the property. It seems to methat it would be unreasonable to force a landlord to make in a suitfor ejectment against his lessee all the under lessees or even personsunder such under lessees who may be in actual possession, parties tothe suit the nature of which may change from a simple suit for ejectmenton forfeiture or determination of the lease. So far as the landlordis concerned the possession is with his lessee. The possession of thelessee may be by his occupying the premises himself or by his allowingother persons to occupy the premises on his behalf either as sublesseesor licensees or as servants. It would be most oppressive to insistupon the landlord to make all such persons parties to a suit. Forinstance in the case of a house in Calcutta which is popularly called‘ mansion5 or ‘ Court * there may be some 150 sub-tenants inoccupation of different portions of it. The owner, if the view urgedby the petitioner is accepted, will have to make all these personsparties in a suit for ejectment against his lessee. Take another commoninstance of a market or bazaar held under lease. If the owner seekspossession of it by ejecting the lessee, it will be absurd to hold thathe must make every squatter or stall-holder party to the suit.”
The learned Judge after expressing his disapproval of the judgmentin Ezra v. Oubbay {supra) continued,
“ A decree in ejectment passed against a lessee' at the instance ofa lessor is not only binding upon the lessee but also upon his subtenantsprovided they have no right independent of the right of their lessor inthe demised premises.”
The learned Chief Justice obviously did not consider it necessary torefer to Order 21, Rule 36 corresponding to the proviso of our section 324for the reason that the view had been taken in the Indian Courts that
66
NAGALINGAM J.—Kudooa Bhai v. Visvalingam.
that rule did not apply to sub-tenants but to tenants under a judgment-debtor who was not sued in his capacity as a tenant by a landlord.See the cases of Shama Soonderee v. Jar dine. Skinner <& Company, 1•and Uppala Raghava v. ZJppala Ramanuja z.
Following the principles underlying these judgments, I would holdthat a sub-tenant is bound by the decree for ejectment entered againstthe tenant and that it is the duty of the Fiscal to remove the sub-tenantas he is a person bound by the decree and deliver possession to thelandlord. But, if for any reason the Fiscal is unable to deliver overpossession by removal of the sub-tenant from the premises the landlordwould have to take proceedings under section 325 of the Code and ifthe Court finds that the person obstructing was a sub-tenant under thetenant the Court would then direct the ejectment of the sub-tenant,for as was said by Macleod C.-J. in the case of Jairam Jalowji and otherv. Nowreji Jamshedji Plumber {supra),
“ Now, the only justification for the fruitseller (the sub-tenant)being in occupation of the premises is the agreement of tenancy which■originally existed between himself and the judgment debtor. Hedoes not claim to be in possession on his own account or to be holdingon account of some person other than the judgment debtor.”
I should however add that in some of the earlier Indian cases it hasbeen .suggested that although a sub-tenant may not be a necessary partyto an action by a landlord against his tenant for ejectment, neverthelessit may be advantageous to add the sub-tenants as parties. But thisview has not prevailed later and in the case of Sheik Yusuf v. JyotishChandra Barterjee {supra) Suhrawardy J. observed in regard to it asfollows :—
“ A question similar to this came for consideration incidentallyin England in Geen v. Herring where the plaintiff had made all sub-tenants parties to an action for recovery of a house. The Courtdisallowed the costs of serving all the sub-tenants with writs or noticeson the ground that it was not necessary to make all the sub-tenantsparties to the action. In delivering the judgment of the Court ofappeal Stirling L.J. observed-—
‘ It was not disputed, and I think rightly so, by the counsel fothe plaintiff that the action for recovery of these houses wouldhave been well brought against Herring (the lessee) alone, withoutjoining his weekly tenants.’
The position will be more intolerable if a person in the position ofthe decree-holder in this case is compelled on resistance being offeredby each of the sub-tenants to bring a suit for possession of this propertyagainst each of them. A valid notice to quit not only determines theoriginal- demise, but any under-lease which the tenant might havemade. Fox on the Law of Landlords and Tenants, Edn : 6, p. 683.The petitioner therefore is a person who has no right to remain on theland and whose right, if any, came to an end along with that of hislessor.”
1 7 W. R. 376.
" I. L. R. 26 Madras 78.
BASNAYAKE J.-
uan Appu v. Fernando.
67
Having regard to the principles of Roman-Dutch Law there is allthe more reason to adopt the later Indian view.
In view of the foregoing reasons the conclusion I reach is that the 2nddefendant was improperly added and that the action against him shouldbe dismissed with costs, both in this court and in the court below. But,I think, I have said enough to indicate my view that the 2nd defendantis one who is bound by the decree entered against the 1st defendantand is liable to be ejected under it.
Appeal allowed.