008-NLR-NLR-V-46-MAROOF-Appellant-and-LEAFF-Respondent.pdf
Maroof and Leaff.
26
1994
Present: Keuneman, Cannon and JayetiUeke JJ,
MAROOF, Appellant, and LEAFF, Respondent.
171—C. R. Colombo, 94,683.
Rent Restriction Ordinance—No nete jurisdiction created—Right of appealfrom Court, of Requests—Ordinance No. 60 of 1943, s. 3 proviso (a) to (d).
No new jurisdiction is conferred on the Court of Bequests in respect ofthe cases (a) to ,(d) contained in the proviso to section 8 of the BentBestriction Ordinance and the right of appeal from a judgment orfinal order of the Court remains unaffected.
There is nothing in the section which makes a preliminary inquiryinto the matters contained in the proviso imperative or prevents theCourt from allowing those matters to be proved at the trial. Even if anew jurisdiction is created by section 8 of the Bent Bestriction Ordinancethat jurisdiction is conferred upon the Court of Bequests and theDistrict Court and the right of appeal from those. Courts is not takenaway.
C
ASE referred by Wijeyewardene J. to a Bench of three Judges.
The question referred was whether the right of appeal from a
judgment or final order of the Court of Requests in an. action in ejectment-instituted under section 8 of the Rent Restriction Ordinance was affectedby the Ordinance.
G. P. J. Kurukulasuriya (with him l'. Joseph), for the defendant,respondent, raised a preliminary objection.—There is no right of appeal tothe Supreme Court from a decision given by a Commissioner of Requestsin a ease arising under section 8 of the Rent Restriction Ordinance(Ordinance No. 60 of 1942). There are conflicting decisions on this point—Abeyewardene v. Nicolle Weerasinghe v. Azeez 2; Gunapala v. Mohideen The present action is one for the ejectment of a tenant brought by thelandlord on the ground that the premises in question are reasonablyrequired for occupation by the landlord. It is a special ground of actionprovided for by a special emergency enactment. The Rent RestrictionOrdinance applies, according to section 2, only in certain specified areasand is not applicable in all Courts of Requests and District Courts. Bythis Ordinance the ordinary jurisdiction of the Court of Requests undersection 75 of the Courts Ordinance is ousted and a new jurisdiction isconferred on it to entertain tenancy cases only under certain conditions.A preliminary inquiry as to whether such conditions are present isnecessary before the plaint is accepted—Rosaline Nona v. Jan Singho VThe words ‘1 no action shall be entertained 1 ’ in section 8 would qualify theproviso too—Madras and Southern Mahratta Railway Co., Ltd., v. Baz-wada Municipality '. The Court of Requests or District Court, for thepurpose of the Rent Restriction Ordinance, is thus a special tribunaland, in the absence of any section in the Ordinance enabling appeals,
*{1944) 45 N. L. R. 350.
{1944) 45 N. L. R. 381.
(1944) 45 N. L. R. 371.
(1944) 45 N. Z. R. 461.
5 A. I. R. 1944 P. C. 71.
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KET3NEMAE J.—Maroof and Lea If.
no appeal lies to the Supreme Court from its decisions—Abeyewardcnev. Nicolle (supra); Gunapala v. Moliideen (supra); Sangarapillai v.Chairman, Municipal Council, Colombo *; Soertsz v. Colombo MunicipalCouncil 2; Kanagasunderam v. Podihamine J; Vunderpoorten v. TheSettlement Officer *. The conclusive nature of the decision of the Court ofBequests or District Court is similar to that of the Assessment Boardunder section 12.
H. W. Jayawardene (with him G. T. Samarawickreme), for the plaintiff,appellant.—Section 8 of the Rent Restriction Ordinance does not conferany new jurisdiction on the Court of Requests. It merely limits thejurisdiction which the Court of Requests exercised previously unclersection 75 of the Courts Ordinance. As regards grounds (c) and (d)of the proviso a separate preliminary inquiry as to jurisdiction is notnecessary in order to entertain the plaint—The King v. Nat Bell Liquors.Ltd.3. In view of the fact that the jurisdiction which the Court ofRequests possesses under the Rent Restriction Ordinance is the oneconferred by the Courts Ordinance the usual right of appeal provided by-section 78 of the Courts Ordinance is available as long as it is not expresslystated as inapplicable.
ftven if a proceeding under the Rent Restriction Ordinance is to be-regarded as a special proceeding, appeal would lie even though there isno special section enabling it. ^ Attorney-General r. Sillem 6 to whichand The King v. Hanson 7 and Tfjfe Queen v. Stock 3 reference is made inAbryivardene v. Nicolle (supra) turns on its own facts and was decidedprior to the time when the High Court in Kngland was given a generalright to entertain appeals from an established inferior Court providedit was not expressly excluded by special enactment. The position nowis that “ when a question is stated to be referred to an established courtwithout more, it … imports that the ordinary incidentsof the procedure of the court are to attach, and also that any generalright of appeal from its decision likewise attaches—National TelephoneCo., Ltd. v. Postmaster-General 3 which is followed in Secretary of Statefor India v. Chellikani Kama KaoMaung Ba Thaw v. Ma Pin 11 and
Hem Singh v. Mahant Basant Das ,2. See also the Full Bench decision inThe Hon. the Government Agent. Central Province v. Mrs. James Ryan andSaunders 13. In the circumstances, however section 8 of the Rent Re-striction Ordinance may be interpreted, a right of appeal to the SupremeCourt does exist because the action in the present case is one which isreferred to an established court.
G. P. J. Kurukulasuriya replied.
December 5, 1944. Keuneman J.—
The plaintiff brought this action alleging that the defendant took thepremises No. 158, Temple Road, on a monthly tenancy at a rental of
Cur. ado. •vutf.
1 (1930) 32 N. L. R. 92.
* (1930.) 32 JV. L. R. 62.
3 (1940) 42 N. L. R. 97.
8 (1942) 43 N. L. R. 230.
7 (1821) 4 B and Aid. 519.‘ (1838) 8 Ad. and El. 405.
• L. R. (1913) A. C. 546 at 552.
» L. R. (1922) 2 A. C. 128 at 158.8 (1864) 10 L. T. (N. S.) 434.
18 A. I. R. (1916) P. C. 22.11 A. I.R. (1934) P. C. 81.18 (1936) 1 A. E. R. 356.
'• (1881) t S. C. C. 151.
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KEPXEMAX .1.—Maroof and LealJ.
Rs. 40 a month, having deposited a sum of Us. 40 as one month’s rent inadvance. She further stated that the defendant had not paid the rent due forMarch, 1944, and that she had by notice of February 25, 1944, requestedthe defendant to quit the said premises. Plaintiff also averred that thesaid premises were reasonably required for occupation as her residence,and prayed for ejectment of the defendant.
The defendant pleaded that the notice served was contrary to theprovisions of the Bent Restriction Ordinance of 1942, and denied that thepremises were required for the occupation of the plaintiff. The defendant-brought into court lis. 80 as rent for March and April, 1944.
After trial the Commissioner found that “ the plaintiff’s need for thepremises in question cannot be said to be reasonable or genuine forcertain ”, and dismissed plaintiff’s action with costs. Plaintiff appealedfrom that judgment, and at the healing of the appeal a preliminaryobjection was taken on the part of the defendant that there was no rightof appeal from this order. Wijeyewardene J. acting under section 48■of the Courts Ordinance reserved this question for the decision of threeJudges in view of the fact- that there were three conflicting decisionsof this Court on the point.
In Abey wardens. v. Nicollc ' Soertsz J. said that there was no rightof appeal from an order relating to section -8. provisos (a) to (J) of theOrdinance. The appeal had however been disposed of on otherpoints.
A similar objection was taken in IVecrasinghc v. Azeez – before deKvetser J. who pointed out that the earlier decision was made obiter.and added—” When we turn to section 8, that section does not give theright to the landlord to sue the tenant for ejectment. That is a righthe has independent of the Ordinance. What that section does is tocurb his right and to limit it to certain circumstances. In my opinion,therefore, the right of appeal which existed previously is not- affectedby the Ordinance.”
In Gunapala v. Mohideen 3 a similar matter came up before Soertsz J. whopointed out that- Ordinance Xo. 60 of 1942 introduced a material changein the law " by debarring landlords in certain areas from institutingsuch actions without the written authorisation of an Assessment Board,and also by prohibiting courts of law in those areas from entertainingsuch actions, were they instituted, unless in the opinion of the Court-the rent was in arrear, or the tenant had given notice, or the landlordrequired the premises reasonably, or the premises were' being used in animmoral, illegal, neglectful, or pestiferous manner ”. Soertsz J. added—“ The right of action and of appeal which existed previously is the rightof the common law action and the common law appeal fmm a finaljudgment or order having the effect of a final judgment ”. Bu.t in thecase where " the preliminary matters in section 8 (a) to (d) ” have to beconsidered, “ there is then an action for ejectment but only in posse.Till the court has held the preliminary inquiry in accordance with thefundamental rule of procedure that requires that the party to be affectedshall be heard, there is in reality no action for ejectment over which the
1 {1944) 45 N. T.. 7f. .350.1 (1944) 45 N. L. R. 381.
*U!U4) 15 ,Y. t_ j?. in.
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KEUN EMAK J.—Maroof and Leaf],
court has any power. If the court is of opinion that the landlord has .not made out a case under section 8 (a) to («/) and makes order accordingly,that surely is not an order in an ejectment action. An ejectment actionlias not yet come into being for .the purpose of trial."
A further point made by Soertsz J. was that in an action for ejectmentwithout authorisation by a Board, " a new jurisdiction has been con-ferred on certain courts to consider some preliminary questions thatdo not arise as preliminary questions in the ordinary tenancy case ’'.Soertsz J. held that a jurisdiction conferred on a court, is not subject to aright of appeal unless such a right has been given by clear words ni-inevitable implication. He followed the decision of L>ord Westbury inAttorney-General v. Sillen 1 and a number of cases decided in Englandand in Ceylon which followed that decision. Soertsz J. also made one-reservation, viz., that what he had said applied to matters arising in the-Court of Bequests, and pointed to the difference between section 73 andsection 78 of the Courts Ordinance.
In view of these conflicting decisions we have given this matter ourcareful consideration. Section 8- of the Bent Bestriction Ordinance-No. 00 of 1942. runs as follows: —
“ Notwithstanding anything in any other law, no action or proceed-ings for the ejectment of the tenant of any premises to which thisOrdinance applies shall be instituted in or entertained by any Court,unless the Assessment Board, on the application of the landlord.,has in writing authorised the institution of such action or proceedings:Provided, however, that the authorisation of the Board shall not henecessary in any case where—
(a) rent has been in art-ear for one month after it lias become due; or.(b) the tenant has given notice to quit; or(r) the premises are, in the opinion of the Court, reasonably requiredfor occupation -as a residence for the landlord or any memberof the family of the landlord or for the purposes of his trade-business, profession, vocation or employment; or(<7) the tenant or any person residing or lodging with him or beinghis sub-tenant has, in the opinion of the court, been guilty ofconduct which is a nuisance to adjoining occupiers, or ha^been convicted of using the premises for an immoral orillegal purpose, or the condition of the premises has, in theopinion of the Court, deteriorated owing to acts committedby nr to the neglect or default of the tenant or any suchperson.
For the purpose of paragraph (c) of the foregoing Proviso, ‘‘ memberof the family ” of any person means “ the wife of that person, or anyson or daughter of his over eighteen years of age, or any parent, brotheror sister dependent on him ’ ’.
The first part of this section is in imperative terms, and forbids the“ institution ” of proceedings for the ejectment of a tenant except on awritten authorisation of the Assessment Board, “ notwithstanding any-thing in any other law ’ ‘. I do not think it is profitable to consider
1 n K. Jt. 1200.
KEPNEMAN J.—Ma roof and Leaff.
29
whether this part of the section creates a new jurisdiction or merelyimposes a curb or fetter on an existing jurisdiction. In either case theplaintiff is effectively debarred from bringing the action without thisauthorisation. The real problem we have to solve is the effect of theproviso to the section. I think it is essential to consider the wordingof the proviso. The language is that “ the authorisation of the Boardshall not be necessary ” in the cases given, viz. (a) to (d). If the authorisa-tion of the Board is not “ necessary ” in those cases, I find it difficult toresist the argument that in those cases the jurisdiction of the court intenancy cases remains unaffected and in its pristine force. In thiB appealcounsel supporting the preliminary objection went so far as to suggestthat before the plaint was filed the plaintiff was bound to satisfy thecourt that one of the grounds (a) to (d) had been established, and that inreality the plaintiff had to obtain the leave or sanction of the court tobring the action. I do not think the words of the section can be stretchedto that length, and certainly this suggestion has not been made in anyof the judgments referred to. >-
It is also interesting to consider the cases (a) to (d). It is worthy ofnote that cases (a) and (b) depend upon questions of fact and that the“ opinion of the court ” is not involved. Indeed grounds (a) and (6) wouldhave been good grounds for bringing an action for ejectment against atenant before .the Ordinance, and would have been material matters fordetermination in a tenancy case. In cases (c) and (d) “ the opinionof the court ” is involved. Case (c) brings in matters which before theOrdinance were irrelevant to the tenancy action, and possibly case (d)also does so in some respects. Had case (c) and possibly case (d) been theonly cases contained in the proviso, these may have provided somesupport . to counsel’s argument. But in this case they do not standalone but are conjoined with cases (a) and (b) and all these grounds(a) to (d) are grounds whereby under the proviso the authorisation ofthe Board “ shall not be necessary ”. In my opinion, therefore, wherethe conditions in cases (a), (b), (c) or (d) have been established theimperative words of the earlier part of section 8 have no applicationwhatsoever.
I have considered the question whether section 8 requires a preliminaryinquiry by the court as to whether grounds (a) to (d) or any of themexist. No doubt in view of this section it is now necessary for a plaintiffwho has not obtained the authorisation of the Board to allege that hecomes in under one of these cases, and it is within the power of the courtto try any of these matters as preliminary issues. I do not however findanything in the section that makes such a preliminary inquiry imperative,or prevents the court from allowing these matters to be proved at thetrial itself.
I have therefore come to the conclusion that in the cases (a) to (d)the jurisdiction of the court to try tenancy cases remains unaffected,and that the written authorisation of the Board is not necessary. In allother cases the authorisation of the Board is necessary before actionis brought.
It is interesting to note that under section 12 a procedure has beenlaid down for proceedings before the Board, although the grounds on
ao
KEDNEMAN J.—Maroof and Leaff.
which the Board may grant or refuse authorisation have not been set out..No procedure, however, has been laid down for any application to(he court for leave or sanction to bring the action or for the trial ofuny matters under section 8 (a) to (d) as preliminary questions fordetermination.
As regards the question of law raised by Soertsz J., I think it will besufficient to mention the Divisional Bench case of Kanagasunderam v.Podihamine 1 which followed earlier decisions in England and Ceylon.The effect of those decisions may be summed up in the words of LordWestbury in Attorney-General v. Sillem (supra)—“ The creation of a newright of appeal is plainly an act which requires legislative authority. TheCourt from which the appeal is given and the Court to which it is givenmust both be bound, and that must be the act of some higher power.It is not competent to either tribunal, or to both collectively, to create■any such right. Suppose the legislature to have given to either tribunalthe fullest power of regulating its own practice or procedure, such powerwould not avail for the creation of a new right of appeal which is in effecta limitation of the jurisdiction of one court and an extension of thejurisdiction of another. A power to regulate the practice of a courtdoes not involve or imply any power to alter the extent or nature of itsjurisdiction.” This principle was accepted and applied in our DivisionalBench case.
The application of this principle to the present case is dependentupon the question whether in fact a new jurisdiction was conferred uponthe court by section 8 of the Rent Restriction Ordinance and no rightof appeal was expressly given. 1 have already discussed the questionwhether a new jurisdiction was conferred in respect of cases (a) to (d)contained in the proviso, and have come to the conclusion that in respectof those cases no new jurisdiction is conferred but the former jurisdictionis recognized. In my opinion the principle laid down in these cases is notapplicable to the present case.
It has been contended for the appellant that another principle, adoptedby the House of Lords and the Privy Council, is also applicable in thepresent case: see National Telephone Co., Ltd. v. Postmaster-General 5.Here the point taken was that no appeal lay from the determinationof the Railway and Canal Commission under the Telegraph(Arbitration) Act, 1909, because the reference contemplated is to thearbitration of a specified tribunal and is not a reference to the Com-mission as a Court of Record. In respect of this Argument ViscountHaldane, Lord Chancellor, said—" It is contended by the appellantsthat in a reference under this Act the Commission is not in the sameposition as in a reference under the general Acts establishing it, and thatns no right of appeal is expressly given none can be presumed.
‘" My Lords, if the reference is one on the same footing as a referenceunder the general Acts, that is, a reference to the Commission as a Courtof Record, with a right of appeal provided, this is decisive against thepoints raised in the argument for the appellants. And I find nothingin the Act of 1909 to cut down the effect of the words at the end of
» (191 3) A. C. 546.
> (1940) 42 If. L. R. 97.
The King ». Podimahatmaya.
31
section 1, which appear to me to provide for a reference to the Com-mission in its usual capacity. When a question is stated to be referred toan established court without more, it, in my opinion, imports that theordinary incidents of the procedure of the court are to attach, and alsothat any general right of appeal from the decision likewise attaches.”
This case has been followed by the Privy Council in Secretary of Statefor India v. ChcUikani Hama Rao and others in Maxing Ba Thaw v.Ma Pin 3 and in Hem Singh v. Mahant Basaxit Das 3. In thislast case it was held that jurisdiction conferred on the High Court was intend-ed to include the new subject matter as part of the ordinary appellate-jurisdiction of the High Court and that the case was within the principle-laid down by Viscount Haldane (see above). The right of appeal to the-Privy Council was upheld and the preliminary objection dismissed.
On the footing of these cases it is argued that, even if a new juris-diction was created by section 8 of the Rent Restriction Ordinance,that jurisdiction was conferred upon the ordinary courts, viz., the Courtsof Requests and District Courts—and that the rights of appeal fromjudgments of those courts were not taken away. This is a forcibleargument and I think it is correct.
In the present case the Commissioner has decided that the plaintiffhas not brought herself within any of the cases (a) to (d) and has dismissedher actiou. This is n final judgment or at any rate an order having theeffect of a final judgment. This is a tenancy case, and does not comeunder section 833a of the Civil Procedure Code. The appellant is there-fore entitled to appeal on matters both of fact and of law under section 78of the Courts Ordinance.
The preliminary objection is dismissed with costs. This is the only-matter that has been referred to us. The appeal will be listed for argu-ment in the ordinary course before a single Judge.
Cannon J.—I agree.
Jayetit.eke J.—I agree.
Preliminary objection over-ruled-