MARICAR v. ISMAIL

092-NLR-NLR-V-16-MARICAR-v.-ISMAIL.pdf


1913.
( 362 )
Present: Wood Renton A.C.J.
MARICAR v. ISMAIL.
SOS—G. R. Colombo, 32,825.
Action for rent in Court of Requests—No appeal lies without leave—Ordinance No. 12 of 1895, a. 13.
An action for rent only (and not an action for declaration of titleor ejectment and rent) is not an action where an interest in landis in dispute ; no appeal lies in such an action, without leave.Meedin v. Meedin1 queried.
rpHE facts appear from the judgment.
Drieberg, for the appellant.
A. St. V. Jayewardene (with him, Canekeratne), for the respondent.
July 11, 1913. Wood Renton A.C.J.—
Two points require to be considered in the present case: a preli-minary objection on the part of the respondent’s counsel to theappeal being heard at all, and the appeal itself on the'merits. Theground of the preliminary objection is shortly this. The appellant-treated the present case as one in which leave to appeal was required.He applied for leave to appeal and obtained it. The respondent’scounsel contends that, as the action was in substance one relating toan interest in land, no leave to appeal was necessary, and if therewas no necessity to apply for leave to appeal, an appeal as of rightwould be out of time. Section 13 (1) of the Courts of Requests
* (1909) 5 A. C. R. 42.
( 363 )
Ordinance, 1895 (No. 12 of 1895), provides that there shall be noappeal from any final judgment pronounced by the Commissioner ofBequests of any Court of Bequests in any action for debt, damage,pr demand, unless upon a matter of law or with the leave ofthe Commissioner. Sub-section (2) provides that where leave isrefused by the Commissioner, it may be granted by the SupremeCourt. If the present action is to be viewed as an action for debt,leave to appeal was necessary. The plaintiff’s claim itself is one forrent alone. It is not coupled with any prayer for a declaration oftitle, or for the ejectment of the defendant from the premisesleased. Meedin v. Meedin 1 is relied upon by the respondent’scounsel, 'as showing that such an action as the present is one whereinan interest in land is in dispute. The facts in that case are distin-guishable, inasmuch as the plaintiff claimed not only rent butejectment, and was therefore directly seeking to enforce his interestin the premises demised to the defendant. The case was decidedunder section 8 of the Courts of Bequests Ordinance, which is nowembodied in section 823 of the Civil Procedure Code. The Com-missioner of Bequests in Meedin v. Meedin 1 had regarded the caseas one in which he was entitled to proceed ex parte; and the pointbefore the Supreme Court was as to whether that view of the factscould be justified, or whether the action came under the proviso tosub-section (2) of section 823, that in all cases in which the title to,interest in, or right to the possession of land shall be in dispute theplaintiff, even where his opponent is absent on the day of trial, shallbe required to adduce affirmative evidence in support of his claim.It is clear that in Meedin v. Meedin 1 the right to an interest in andto the possession of land was directly in dispute. But Sir John.Middleton, who decided the case, went a step further, and usedlanguage which is capable of bearing the interpretation that a mereclaim for rent, apart altogether from a claim for declaration of titleor ejectment, should be regarded as an action in which an interestin land is involved. “ I cannot,” he said, “ resist the conclusion:that rent of a house is an interest in land, whether it be for a monthor for a year. It is derived from the value of the land as augmentedby the building of a house on it.” That language was merely obiterdictum, and I venture to doubt whether it is a correct statementof the law. There is direct Indian authority upon- the point. Therespondent’s counsel referred me to the decision of Mr. JusticeStephen in Ibrahim Ismail Timol v. Provas Ohander Mitter a as anauthority for the proposition that a suit by a lessor for rent is a suitfor land. When the case is looked into, it does not, however,furnish authority for that proposition in any sense which couldmake it applicable to the present case. The facts on which theCourt acted are stated in the argument of the Advocate-General,which places the ratio decidendi beyond all doubt. " I admit,” hei (1909) 5 A. C. R. 42.* (1908) I. L. R. 86 Cal. 69.
1913.
Wood
Benton
A.G.J.
Mariearv. Ismail
MW.
W60D
Benton
A.C.J.
Maricori. Ismail
( 364 )
j$aid, “ tbut u suit for rent is not u suit for laud, but this is not a suitof that character. The prayer iu the plaint shows that the plaintiffis seeking to.obtain such title as he cuu have to the land. The suitis not merely for a declaration, but is a suit; to obtain control'andpossession of the house itself. The plaintiff under his plaint claimsthat, inasmuch as the defendant took over possession of the house,be is a trustee for the plaintiff, and that he has to receive the rentsand profits for the plaintiff. He does not claim the surplus rentsand profits, but claims to be entitled to the rents and profits." Inthe case with which I am dealing, the lessee of certain premisesoutside the jurisdiction of the Court having vacated the premiseson account of being sentenced to a term of imprisonment, on hisrelease brought a suit against the lessor, who had in the meantimetaken, over possession, claiming the rents and profits arising therefrompending the termination of the lease, and further claiming that, thelessor during his absence became a trustee for him. It is obvious .that this was something quite different from a mere suit for rent;that the lessor was seeking to obtain possession of the premises byclaiming the rents and profits from the lessor; and that he was,therefore, seeking to do something which directly affected theproperty itself. It was on that ground that the decision of Mr.Justice Stephen proceeded. But there is, as I have said, a directauthority on the other side. In the case of Bangu Loll Lohea v.Wilaon,1 it was held by Mr. Justice O’Kinealy that a suit by a land-lord against a tenant for rent at a rate agreed upon for one period,and fpr rent on the basis of use and occupation for a subsequentperiod., was not a suit for land. The recent decision of my brotherPereira in Punchirala v. Appuhamy * corroborates, so far as it goes,the view of section 13 (1) of the Courts of Bequests Ordinance,1895, which I am now adopting. The respondent’s counsel hasreferred me to the decision of Mr. Justice Ennis in 29—C. K. Negombo,19,668.’ But in that ease the plaintiff prayed for the cancellationof the lease itself, and therefore put forward a claim, part of whichat least directly affected the property. Apart altogether fromauthority, I cannot think that it could have been the intention ofthe Legislature that mere claims for rent, dissociated from anyquestions as to the title to or the posession of immovable property,should be subject to a right of appeal from a Court of Bequests tothe Supreme Court without leave. The preliminary objection fails.It remains only to deal with the merits, and as to these I havevery little to say. The ease was put in a nutshell by the respondent’scounsel. By the assignment of the lease, to which the lessors wereparties, the defendant can no longer claim rights under the instru-ment P 2. In dooument P 6 the defendant acknowledged theplaintiff not only as his landlord, but as the owner of the property,
i (180?) /. L. R. 26 Cal. 204.* (1913) 16 N. L. R. 360.
» S. C. Min.; Mar. 12,1913.
( 365 )
and has undertaken to pay rent to him. In order to obviate the effectof this acknowledgment, the appellant relies on the alleged executionof the document D 3, which was an authority to him by Abdul Hamid,one of the parties to his original lease, to pay the rent to the plaintiff.The plaintiff was no party to D 3. There is no reference to it in thedocument P 6. The only circumstances that can fairly be reliedupon in support of its authenticity are the facts that Abdul Hamidwas one of the original lessors, and that there is nothing in the recordto show that between the date of the lease and the date of theexecution of D 3 he had ceased to be a part owner of the propertyitself. These points deserve consideration, and I have consideredthem. On the other hand, they cannot outweigh the strongfinding by the Commissioner of Requests that the evidence ofAbdul Hamid as to the circumstances under which the documentD 3 was executed is false, and that the document itself is a merefabrication for the purposes of this case. On the grounds that Ihave stated the appeal must be dismissed with costs.
1918,
Wood
ReNtoN
A.Cj.J;
Mari car6. Ismail
Appeal dismissed*