057-NLR-NLR-V-64-M.-B.-HENDRICK-Petitioner-and-B.M.A.-PERERA-Respondent.pdf
Hendrick v. Perera
301
1962. Present: H. N. G. Fernando, J.
M. B. HENDRICK, Petitioner, and B. M. A. PERERA,
Respondent
S.C. 294 of 1962—Application for the stay of proceedings in C. R. Colombo
Case No. 81411, and for the transfer of the said case to the District Court
of Colombo
Court of Requests—Transfer of case brought therein to District Court—Permissibility.
Where, in an action instituted in a Court of Requests, the claim and counter-claim are intimately connected and right to possession of immovable propertyis involved in both the claims, the defendant would be entitled to have thecase transferred to the District Court if the Court of Requests has no jurisdictionto entertain the claim in reconvention. •
302
H. N. G. FERNANDO, J.—Hendrick v. Perera
Application for the transfer of a case from the Court of Requests,. •Colombo, to the District Court.
N. S. A. Goonetillelce, for Defendant-Petitioner.
S. Sharvananda, with 31. T. 31. Sivardeen, for Plaintiff-Respondent.
Cur. adv. vult.
September 24, 1962. EL N. G. Fernando, J.—
This is an application for the transfer to the District Court of an actioninstituted against the petitioner as Defendant, in the Court of Requestsof Colombo.
The plaint in the action averred that the Defendant had become thetenant of the Plaintiff on a monthly tenancy of certain premises atMaharagama at a rent of Rs. 70 per month. Plaintiff then stated thathe had given notice to the Defendant to quit the premises on 30 th Novem-ber 1961, but that the Defendant still continues in wrongful and unlawfuloccupation, and therefore sues for ejectment. In the answer the Defen-dant pleaded, inter alia, that the parties had in November 1952 enteredinto a notarial agreement under which the Defendant had paid a totalsum of Rs. 4,150 to the riaintiff, and that he spent that amount inconstructing a bakery and boutique on the Plaintiff’s land, whichpremises were let to him at Rs. 70 per month. He further statesthat he had spent a further sum of Rs. 7,000 on repairs and improve-ments and claimed to be entitled to a jus relenlionis for this aggregateamount of Rs. 11,150. The present application for a transfer of theproceedings is made on the ground that the Commissioner of Requestswould have no jurisdiction to entertain the petitioner’s claim inreconvention.
One of the matters urged by. counsel for the respondent is that theclaim in rcconvcntion is not made in good faith. It is argued that sincethe Defendant originally provided money and entered into occupationon a notarial lease, it is unlikely that he would subsequently have spentfurther moneys without again entering into a notarial transaction. Butit would seem that in fact the Defendant did make an advance additionalto that covered by the agreement of 1952 : that agreement only providedfor an advance of Rs. 3,600 whereas the Plaintiff in his affidavit filedin this Court refers to a further loaii of Rs. 550/- and admits that in con-sideration of that further loan the Defendant occupied tho premisesfor a period of six months after the expiration of the term of five yearBagi’ced to in the agreement. The circumstances do not therefore con-clusively exclude the possibility that there were further transactionswhich might justify the Defendant’s claim to a jus relenlionis. Counselhas also argued that neither in the answer nor in the affidavit in thisCourt did the Defendant specifically state that the additional sum of
Heralh Banda v. Dissanayake
303
Rs. 7,000 was spent in pursuance.of an agreement between the parties.If, it is said, there is no such agreement, there would in law be no jusretentionis. Indeed the fact that there had been some agreement addi-tional to that provided for by the transaction of 1952 is indicated by thefact that the Defendant had actually been in possession of the premisesfor something over seven years. In these circumstances, I am unableto say upon the material before me that the Defendant’s claim is notmade in good faith, and that he would not be able to satisfy a Courtthat he had in fact made improvements with the consent of the Plaintiff.
It seemakto me that the circumstances of this case fall within the
t or
third category of cases referred to in the judgment of Sinnetamby, J.,in Noorbhoy v. Husair1:
“ (3) When claim and claim in reconvention are intimately connectedandright to possession is involved in both'claims {Jinasena v. Moosajee);”
The two claims in this case are intimately connected in that each partyclaims a right to possession of the land. If the Plaintiff’s were to beinvestigated without reference to the counter-claim, the Defendantwould have to surrender possession even though he may well be in aposition to satisfy a Court of facts which would entitle him to thejus retentionis. I would therefore allow the application for the transferwith costs fixed at Ps. 157.50.
Application allowed.