Yoosoof v. Rajaratnam
1970Present: G. P. A. Silva, A.C.J.M.S. M. YOOSOOF, Appellant, and Mrs. C. M. J. RAJARATNAMand 2 others, RespondentsS.C, 14[GO—C. R. Colombo, 80927jR.E.
<Civil Procedure Code (Cap. 101)—Sections 325-327A—Landlord and tenant—Execution of decree for ejectment of tenant—Resistance by third party on thebasis of a deed of transfer in his favour—Burden of proof.
AVhcro, in tho oxocution of a docroo obtained by a landlord for ojectmont ofhis tenant, a third party offored rosistanco claiming that ho had a right to bo inpossession of tho rontod premises on hi3 om account on tho basis of a salo ofan undivided share of tho promises to him by a co-ownor subsequent to thojudgmont in favour of tho judgmont-croditor—
Held, that tho burden of proving that tho transfer was fraudulent was on thojudgmont-croditor. In such a caso, if tho deed of transfor appears to bo oquallyconsistent with bona fides as woll as with mala ftdes, tho Court would bo justifiedin making an nrdor in terms of section 327 of tho Civil Procedure Code.
' (1965) 69 N. L. R. 287.
G. P. A. SILVA, A.C.J.—Yoosoof p, Rajaratnam
AlPPEAL from a judgment of the Court of Requests, Colombo.
N. E. Weerasooria, Q.C., with M. S. M. Nazeem, for the plaintiff-appellant. •
II. Rodrigo, with Asoka Abeysinghe, for the 3rd defendant-respondent.
Cur. adv. vult.
November 16, 1070. G. P. A. Silva, A.C.J.—
The plaintiff-appellant sued the 1st and 2nd defendants-respondents inthis case for the recovery' of arrears of rent and for ejectment from certainpremises and obtained judgment in his favour on the 16th of January1967. On the 29th of March, the proctor for the plaintiff moved for writsof ejectment to be issued against the defendants notwithstanding theappeal to the Supreme Court and writs were ultimately' issued on the 6thof April 1967. On the 4th Slay 1967, the Fiscal returned the writ ofpossession to the Court of Requests together with his report to the effectthat one Shahul Hameed was in occupation of the premises claiming tohave purchased it on Deed No. 41S7 (which was executed on 12thFebruary' 1967) and to be carrying on business in the said premises. Fivedays later the proctor for the plaintiff moved Court to reissue the writ ofpossession to the Deputy Fiscal to enable the plaintiff to take con-structive possession for the purpose of filing papers under section 325 ofthe Civil Procedure Code. The application was allowed and the writ ofpossession was re-issued to the Fiscal returnable on 31st December 1967.On the 25th May 1967, tho proct.or for the plaintiff moved the Court foran order under s. 326 of the Civil Procedure Code committing to jailShahul Hameed, who at that stage was made the 3rd respondent to thoapplication, or an order under ss. 326 and 327A that the Fiscal shouldeject .all the respondents and deliver vacant possession to the plaintiff.On the 26th May, the Court, being satisfied that a prima facie case wasmade out in terms of ss. 325-326, issued an interlocutory order unders. 377 (b) and appointed 16th of June 1967 as the day on which therespondents were to be heard. On the 16th June, the 3rd respondentfiled his proxy' and objections and eventually the matter came up forinquiry' on 2nd August 1967. The plaintiff gave evidence and the 3rdrespondent, who is also the 3rd respondent to this appeal, was heard inopposition supported by documents which included the deed of transferNo. 4187 of 2/3 of the premises, No. 232, Old Moor Street, Colombo,which formed the subject matter of this suit, to the 3rd respondent byone Madar Sahib Mohamcd Samecr alias Mohamed Sameer, who wasadmittedly a 2/3 owner of the premises in question. The considerationfor this deed was Rs. 10,000 which, according to tho attestation of theNotary, was paid in his presence and the date of attestation was 12.2.1967.Tho other important document produced in favour of the 3rd respondentwas a certificate of registration of a business called Fawmey Grinding
G. P. A. SILVA, A.C.J.—Yoosoqf v. Rajciralnam
Mills, conducted by the 3rd respondent, commencing on 1.2.19G7, at thosaid premises No. 232, Old Moor Street, Colombo 13. On the evidencebefore him the learned Commissioner, not being satisfied that there wasresistance or obstruction or that the presence of the 3rd respondent atthe time that the Fiscal visited the premises was caused by the 1st and2nd respondents who were the judgment debtors, dismissed the plain-tiff’s application. The plaintiff appealed to this Court against this order.The relevant portion of the order of this Court after argument was asfollows :—
“ Apart from filing an affidavit where the appellant has stated thathe was resisted by the 3rd respondent, he also gave evidence to thateffect. The learned Commissioner has dismissed his application . . .The 3rd respondent gave evidence and stated that he did not resist.The learned Commissioner should have come to a finding on thismatter and made one of the three orders which are referred to inthese cases (the cases being those reported in 5S N. L. R. at 512 and69 N. L. R. at 473). I set aside tire order and send the case backin order that there will be an adjudication in this matter. Afteradjudication the learned Commissioner should make one of theseorders which he is empowered to make.”
The orders referred to in these cases are those which are provided for inss. 32G and 327 and 327A of the Civil Procedure Code. I have set outthe order made by this Court in some detail in view of the argumentsraised by both sides regarding the interpretation to be placed on thesubstance of the order itself which I shall refer to later.
Counsel for the respondent in his submission appeared to be critical ofthe order that was made by Tatnhiah J. and suggested that that ordercaused some difficulty to the Commissioner of Requests as to the courseof action he should take. I think, however, that the order made byTambiah J. was unexceptionable and was the only order he could havemade in the circumstances. Sections 325 to 327A of the Civil ProcedureCode, when analysed, would appear to be most logical in the sphere ofexecution of decrees such as the one we are concerned with in this case.Counsel’s suggestion seemed to be that the appeal should at that stagehave been dismissed without a further order to the Commissioner tomake an adjudication in the matter. Had the appeal been dismissed, inmy view there would have been a stalemate or a deadlock. For, theplaintiff had obtained a decree in his favour ; he pursued tho matterfurther by applying for a writ of execution ; a third party made a claim ;the plaintiff resorted to his remedy of reporting the matter to the Courtwhich pronounced the decree ; that Court dismissed his application atthat stage and had this Court also dismissed the plaintiff’s appeal fromthat order, the plaintiff would almost have been left without a remedyand without being able to secure the advantage of the decree he obtainedin his favour. It is to avoid such a situation that ss. 326, 327 and 327Ahave been provided so as to enable the Court in those circumstances
G. P. A. SILVA, A.C.J.— Yooaoof v. JRajaratnam
either to grant possession to the decree holder under s. 326 or, if theclaim of the third party appears to be bona fide, to investigate the matterfully os if it was hearing a case between the decree holder and thoclaimant in terms of s. 327 and thirdly, if a third part}' was in possessionof the property and his claim was found to be frivolous or vexatious togive possession to the judgment-creditor in terms of s. 327A leaving itopen to the person in possession at the time to file a fresh action againsttho judgment-creditor within one month. The provisions of ss. 326, 327end 327A would thus appear to be most logical and comprehensive formeeting every situation that could arise after a person has obtained adecree in his favour and for reaching a finality in respect of the suit. Thoorder made by Tambiah J. in appeal was therefore entirely justified.
When the record reached the Court of Requests for compliance withthe order of this Court, counsel for the plaintiff commenced his sub-missions by making an observation that for a proper adjudication on thismatter as required by the order of this Court, there should be an inquiry,and he undertook to lead evidence, as it was sometime ago that evidencehad been recorded and it would'not be satisfactory to have an order onthe proceedings already recorded. Counsel for the 3rd respondent madesubmissions to the contrary and the learned Commissioner ultimatelydecided to make an order on the evidence already led before his earlierorder was made. This order of the 3rd July 196S, which is now appealedagainst, is one made in terms of s. 327 directing the petition of complaintof the plaintiff to be numbered and registered as a plaint in an actionbetwecii the decree holder as the plaintiff and the claimant asdefendant.
The initial submission of counsel for the plaintiff-appellant was thatthe learned Commissioner was wrong in not allowing the plaintiff to leadfurther evidence as there could be no proper adjudication as required bythe order of this Court without such evidence. It was admitted bycounsel however that the earlier order which was set aside by Tambiah J.was made by the same Commissioner of Requests as the one who madetho order which is now under appeal, both orders being based on the sameevidence. Counsel for the respondent submitted on the other hand thatthere was no application to lead further evidence as such by the plaintiffand that counsel only made certain observations in regard to the matterof leading fresh evidence. The record appears to support the sub-mission of counsel for the respondent, there being no specific applicationto lead evidence which was pursued by counsel for the plaintiff nor anorder refusing such an application. Furthermore, the order made byTambiah J. did not suggest that an}' fresh evidence should be recordedbefore making an adjudication but considered the Commissioner to be inerror in merely dismissing tho plaintiff’s application for delivery of vacantpossession, without proceeding to make an order as required by law. Hotherefore directed the Commissioner to reach a finding on the complaintmade by the plain tiff-judgment-creditor and to make one of the threoorders provided for in ss. 326, 327 or 327A. In the circumstances I am
G. P. A. SILVA, A.C.OL— Yoosoof v. Rajaratnam
unable to agree with this submission of counsel for the appellant, nor canI accept the further argument that the learned Commissioner has thusmade an adjudication without evidence. Both orders are made by thesame Commissioner, the second being necessitated by an omission on hispart, and there was ample evidence placed by the plaintiff as well as the3rd respondent on which he could make a proper adjudication as requiredby the relevant provisions.
The only other question for decision is whether sufficient grounds existto set aside the order of the learned Commissioner who has found that theresistance or obstruction complained of was occasioned by a person otherthan the judgment-debtor claiming in good faith to be in possession of theproperty on his own account having purchased a 2/3 share from a brotherof the plaintiff, and accordingly directed that the petition of the plaintiffbe numbered and registered as a plaint in an action between the plaintiffand the 3rd respondent. This question was not raised by the appellantamong his grounds of ap>peal but in view of certain submissions of thelearned counsel for (lie appellant I decided to consider it as a ground oflaw. Mr. Wecrasooria’s contention was that the documents on whichthe 3rd respondent relied, namely, the lease and the subsequent transferof a 2/3 share in Iris favour by its owner as well as the certificate ofregistration of a business of t he 3rd respondent in the premises in question,were all effected after the judgment in favour of the plaintiff and that thetiming excluded any bona fides on the part of the 3rd respondent. Mr.Rodrigo’s contention however was that the conduct of flic 3rd respondentin giving the plaintiff notice of a lease in his favour and a subsequentpurchase by him of the premises on the 30th January and 12th February1907, months before any steps were taken in execution of the decree,would negative any bad faith on his part. While the contention of theappellant is based on an inference which is not altogether unreasonable,the content ion of the respondent is based on the fact of an actual deed oftransfer, duly attested by a notary and, ex facie, for valuable consideration.Both principle and precedent would support the view that when a transferis effected for valuable consideration the burden of proving that it wasfraudulent rests on the plaintiff in these circumstances. It is an acceptedrule that such a burden even in a civil proceeding must be discharged totiie satisfaction of a Court. For that degree of satisfaction to be reachedthe standard of proof that is required is the equivalent of proof beyondreasonable doubt. The observation of Howard C.J. in the case ofLakshmanan Cheltiar v. Miiltiah Cheltiar 1 fortifies me in this view. If aclaimant, at the stage of delivery of possession upon a writ, relies on atransaction which is equally consistent with bona fides as well as withmala fides, I think that the Court should lean towards the view that isfavourable to the claimant. Even a strong suspicion that a transactionwhich has the effect of obstructing a decree in favour of a judgmentcreditor is mala fide or fraudulent will not justify a Court in making anorder under s. 32G of the Civil Procedure Code which involves a penal
1 (19JS) 40 O. L. IV. 65 ; 50 X. L. X. 337.
SomarcUne v. Munasinghe
provision. In the present case, on the limited material contained in thesummary inquiry, it would appear that the deed of sale in favour of the3rd respondent, executed by an admitted co-owner of the premises, whois not a stranger but a brother of the judgment creditor, for valuabloconsideration, may well be a genuine transaction and that the 3rdrespondent was claiming the premises as against the plaintiff in goodfaith. In iny view the learned Commissioner in these circumstances tookthe correct decision in making an order in terms of section 327 so thatthe plaintiff may have an opportunitj- of proving any allegations againstthe 3rd respondent at a proper trial. I therefore see no reason tointerfere with the order made by him.
The appeal is accordingly dismissed with costs.
M. S. M. YOOSOOF, Appellant, and Mrs, C. M. RAJARATNAM and 2 others, Respondents