019-NLR-NLR-V-51-MOHAMAD-et-al-Appellants-and-SAHUL-HAMEED-Respondent.pdf
8«WIJEYEWARDEtfE C.J.—Mohamtd v. Snhul Moment]
Prutnt: Wljeyewardene C.J.
MOHAMED *t cU., Appellants, and SAHUL HAMEED, RespondentS. C, 267—C. R. Kandy 2MULandlord and tenant—Partnership—Contract of tenatmy between partners—Action for ninft and tjectm*nt—.Val maintainable.
Gnu partnor, o* landlord, onnnot »u(» the <><inrr partner*, *• uak;nts,
for rent mid (‘joetment in respect nf premise# where'the busunss of <ltepuvtnrriihip is carried op.
j^.PPlv*Tj from r judgment of the Oummi.wtonei- of Requests, Kandy./(. W. Tainblah, for defendants appellant).
//. V. Perera, K.C., with C. E. S. Perera and 31. A. M. Ifwuein, forplaintiff respondent.
Car. adv. volt.
dune 6,19-19. Wmbykwabdeke CJ.—
'This is an action for rent and ejoctmont Hied by the plaintiff againstthe defendants.
The question that has to bo decided is whether tlie plaintiff can maintainthis action as he and the defendants are partners. In view of thatquestion it is necessary to sot out the following paragraphs in the plaint:—Para 2: '' The plaintiff and the defendant are persons carrying onbusiness under tlio name, style and -firm of M. K. A. Mohamed Mutalibat premise* No. 132, Colombo Street, Kandy . . .
Para 3: “ Tho plaintiff let to the said partners premises No. 132.of Colombo Street, Kandy, at a monthly rent of Rs. 60Pam 4: “ The defendants wrongfully and acting in concert refusedand tailed to pay plaintiff such tent as from October 1,1946, tad thereis now due to the plaintiff as arrears of rent np to February 28, 1947,the sum of Ha. 300
WIJEYEWARDEKK C.J.—Mo/iomfrf v, Nohul Homeerf87
Para 6; “ Tho plaintiff on December ,17,1940, notiood the defendantsto quit and vacate, on or before January 31, 1947, tho said promisesas he required the same for his nwu u;<c, hut the defendants have failedand neglected to quit ”,
It will be seen from paragraphs 2 and 8 of the plaint that the contractof tenanoy was between tho plaintiff and the “ partners ” whom hedescribed in paragraph 2 as consisting of himself and tho two defendants.The position was made cleaver by the specific admission made by plaintiff'scounsel at tho trial “ that tho promises wore let out to the plaintiffhimself and tho two defendant? who wore partners by the plaintiff”.In tide action the plaintiff claims the entirety of t-lic arrears of rent andasks for a writ of ejectment against the two defendants. Tho evidencein the case shows that tho plaintiff and the defendants were at the timeof the action carrying on the business of the partnership at the premisesin quostion.
It Is contended by the appellant’s Counsel that on the contract set outin 1 he plaint the plaintiff has to sue the firm of which he is a partner andthe plaintiff would then apjioar as a defendant in tho action filer! by him.Moreover, it is contended that under the English Law of pavtnership nolegal contract could subsist between the plaintiff nul the firm ami thatthe plaintiff could have entered into a contract only so far as to vendorhim liable in equity {vide Jiotunqucl tlal. *>. If‘ray el al.1 and Dc Tu/del v.Shaw eh al.*). Such an u equitable debt ” would be an item in a partnershipaccount and it would be necessary to go into partnership ace Mints toascertain tho amounts due to the party sued.
The respondent’s Counsel argued that the law os laid down in theearlier cases was modified by the operation of the Judicature Acts,1873 and 1875, and the rules made thereunder and he made particularreference to Ol der 48a Rule Id. No doubt, the Judicature Acts providodgenerally that the Rules of Equity should prevail in various matters inwhich tiiere was a conflict lietwcen the Ilulcs of Equity and the Rulesof the Common Law. But referring to these rules Lord Stcrudale, M.R.,said in Meyer <£• Co. i>. Faber 3 :•—
;i The rules do not in any way, as it seems to inc, alter the substantivelaw as it existed before, or alter the rights which in law and equitypartners have one against tho other; all they do is to provide thatthe procedure which is laid down in the order shall apply to actionsbetween partners and that the firm name will be used for those actions
These rules being rules of procedure are not binding on us, though indeciding questions with respect to the law of partnership, the law to beadministered is the some as would be administered in England (Civil LawOrdinance, section 3). Moreover, the rule particularly referred to isrestricted in its operation oven in England as it applies only in ease ofpersons who are carrying on business within the jurisdiction of theHigh Court (LindJoy on Partnership, Ninth Edition, page 344).
It has also to be noted that the deed of partnership executed by tbeplaintiff and the defendants requires the business to be carried on “ atNo. 132, Colombo Street, Kandy, or at such other place as the partners
’ (1313) C, Taunton $07.3 (ISIS) 1B, and Aid. 601.
• (19*3) 1 Oh. 4S1.
St> WINDHAM J.- -M'Ki -jGrlt'rcT.t Life 1 imaratire Co. lArt. v. Cowi>iiasi‘,u><‘r
cf I Kcomc Trx
shali iVoTii lime to Viuw a«i;;o or : The giving of notice by the. puuntiirand the refusal ot* the defendants to vacate the juvMSiiwa Appear to ^133to show thrb the partner* are nt variance with regard to tlio plneo ofbush fas,
I would allow tlio appeal and direei. deciva to be entered dismissingthe plninthTs action. The appellants will have cost* here and in theCourt below.
Apjxal aUoiotd.