023-SLLR-SLLR-2008-V-1-MOHAMED-AZAR-v.-IDROOS.pdf
232Sri Lanka Law Reports[2008) 1 Sri L.R
MOHAMED AZARvIDROOSSUPREME COURT.
GAMINI AMARATUNGA, J.
S. MARSOOF, J. ANDANDREW SOMAWANSA, J.
S.C. APPEAL NO. 114/2007
A. L.A. 51/2006
C. GAMPOLA NO. 914/81 L.
FEBRUARY 02, 2008
Rent (Amendment) Act No. 26 of 2002 – Section 22(3), 8(a)- Benefitsconferred on the landlord to get the decree executed without waiting until theCommissioner of National Housing provides alternative accommodation -Section 22(1 )b and Section 22(1) C were repealed and new subsections weresubstituted in their places – Civil Procedure Code – Section 221, Section 320,Section 323, Section 337(1) – Time bar prescribed to the application for theWrit of Ejectment – maxim "lex non cogit ad impossibilia."
The plaintiff filed action under section 22(1) (bb) of the Rent Act, for the ejectmentof the tenant (defendant) on the ground that such premises are reasonablyrequired for occupation as a residence for the plaintiff (landlord). Judgment wasentered of consent in favour of the plaintiff and the decree was accordinglyentered directing the ejectment of the defendant. In view of Section 22(1 )C of theRent Act the decree entered in favour of the plaintiff contained a condition that theplaintiff shall have no right to obtain a writ for the delivery of possession to theplaintiff until alternative accommodation is provided to the tenant (the defendant)by the Commissioner of National Housing.
The Commissioner of National Housing allocated a house to the tenant (thedefendant), but the tenant who was not satisfied with the house allocated to him,filed a Writ application No. C.A. 65/1986 in the Court of Appeal seeking a Writ ofCertiorari to quash the notification of the Commissioner of National Housinginforming the tenant of the allocation of the house to him. The Court of Appealheld that the house offered by the Commissioner of National Housing was not inlaw an alternate accommodation contemplated in section 22(C) of the Rent Actand accordingly issued a Writ of Certiorari quashing the notification sent by theCommissioner of National Housing.
After the death of the original plaintiff, the present petitioner, a heir of the originalplaintiff complied with the requirements set out in Section 22(3)8(a), as the
SCMohamed Azar v Idroos233
Commissioner of National Housing failed to provide alternate accommodation to
the tenant, the petitioner sought writ of ejectment – which was refused by the
District Court. The Court of Appeal refused leave to appeal from the said order.
The Supreme Court has granted leave to appeal against the said order of the
Court of Appeal.
The two questions of law considered by the Supreme Court are as follows:
Has the Court of Appeal erred in law in reaching the conclusion that section337(1) of the Civil Procedure Code is a bar to the application for the Writof Ejectment made by the petitioner-appellant?
Did the Court of Appeal and the District Court fail to consider the purposeand the effect of the Rent (Amendment) Act No. 26 of 2002 in so far as itwas relevant to the consent decree entered in favour of the plaintiff?
Held:
The amendments made to section 22 of the Rent Act by the amending ActNo. 26 of 2002 provided a new mechanism for the landlord to get thedecree entered in his favour executed through court without indefinitelywaiting until the Commissioner of National Housing provided alternativeaccommodation to the tenant.
In order to extend the benefit conferred on the landlord by the amendingAct No. 26 of 2002, who had already obtained decrees for the ejectment oftheir tenants, a new provision was added at the end of section 22(3)(8).
The time bar prescribed by section 337(1) commences to operate onlyfrom the date on which the judgment creditor becomes entitled to executethe writ and as such it has no application to a case where the judgmentcreditor is prevented by a Rule of law from executing the writ entered in hisfavour.
The time bar will apply in cases where the judgment creditor afterbecoming entitled to obtain the writ has slept over his rights for ten years.
PerGamini Amaratunga, J. –
"It would indeed be unjust and inconsistent with the purpose of section337(1) to apply the time bar in a situation where the decree has becomeincapable of execution due to a rule of law."
Held further:
After the new section 22(1) C was introduced by the amending Act No. 26of 2002, the judgment creditor became entitled to deposit ten years rent ofthe premises or Rs. 150,000/- which ever is higher with the Commissionerof National Housing and apply for the writ one year after the date of suchdeposit.
The Rent (Amendment) Act No. 26 of 2002 repealed section 22(1 )(C) andenacted new provisions in its place and made it applicable to decreesalready entered at the time repealed section 22(1 )(C) was in force. The
234Sri Lanka Law Reports[2008) 1 Sri L.R
object of this amendment was to remedy the mischief resulting from thepre-condition contained in section 22(1 )(C).
When a judgment-creditor has made an application for the execution of thedecree, the Court to which that application has been made has to satisfyitself that the judgment-creditor is entitled to obtain execution of thedecree.
Cases referred to:
Mowjoodv Pussadeniya (1987) 2 SLR 287.
Jayasekera v Herath Vol. Ill BASL Journal (1999) Vol. VIII part 7 1999SLR 56.
APPEAL from the judgment of the Court of Appeal.
M. Farook Thahir with A.L.N. Mohamed for the substituted plaintiff-petitioner-appellant. .
L.A. Paranavithana for the defendant-respondent-respondent.
Cur.adv. vult.
February 2, 2008
GAMINI AMARATUNGA, J.The original plaintiff Hayathu BeeBee alias Sithy Nazeera filedaction in the District Court of Gampola for the ejectment of her tenant(defendant respondent) from the residential premises and the landmore fully described in the schedule to the plaint. The plaintiff broughther action under section 22(1 )(bb) of the Rent Act as amended byRent (Amendment) Act No. 10 of 1977. In terms of the said section22(1 )(bb) a landlord of any premises the standard rent of which did notexceed one hundred rupees for a month, has the right to instituteaction for the ejectment of the tenant of such premises on the groundthat such premises are reasonably required for occupation as aresidence by such landlord or a member of his family.
On 1st March 1982, judgment was entered of consent in favour ofthe plaintiff. Decree was accordingly entered directing the ejectmentof the defendant and all those claiming under him from the property insuit and for the delivery of vacant possession to the plaintiff. Section22(1 c) of the Rent Act contained a special provision with regard toexecution of decrees entered in respect of premises referred to insection 22(1 )(bb). Section 22(1 c) of the Rent Act at that time was asfollows:
Mohamed Azar v Idroos
SC(Gamini Amaratunga, J.)235
"22(1c) Where a decree for the ejectment of the tenant ofany premises referred to in paragraph (bb) of subsection (1) is entered by any court on the ground thatsuch premises are reasonably required for occupationas a residence for the landlord or any member of thefamily of such landlord, no writ in execution of suchdecree shall be issued by such court until after theCommissioner of National Housing has notified tosuch court that he is able to provide alternativeaccommodation for such tenant." (emphasis added).
In view of the above statutory provision, the consent decreeentered in favour of the plaintiff contained the condition that theplaintiff shall have no right to obtain a writ for the delivery ofpossession of the premises to her until alternative accommodation isprovided to the defendant (the tenant) by the Commissioner ofNational Housing.
On 17.12.1985, the Commissioner of National Housing allocated ahouse in the Ranpokunawatta housing scheme to the defendanttenant, but the latter, who was not satisfied with the Commissioner’soffer, filed Writ Application No. CA 65/1986 in the Court of Appealseeking a Writ of Certiorari to quash the notification sent by theCommissioner to him informing him of the allocation of theRanpokunawatta house to him. The Court of Appeal, following thedecision of the Supreme Court in Mowjoodv Pussedeniyaih, held thatthe house offered by the Commissioner of National Housing was notin law alternative accommodation contemplated in section 22 (1c) ofthe Rent Act and accordingly issued a Writ of Certiorari quashing thenotification sent by the Commissioner allocating the Ranpokunawattahouse to the defendant.
The plaintiff died in 1998, leaving the present petitioner appellantMohamed Azar and six others as her intestate heirs. Due to theinability/failure of the Commissioner of National Housing to providealternative accommodation to the defendant tenant, the plaintiff wasunable, upto the time of her death, to obtain a writ to eject thedefendant in terms of the decree entered in her favour.
The Rent (Amendment) Act No. 26 of 2002, which came intooperation on 24.10.2002, amended the existing provisions of
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section 22 of the Rent Act relating to the procedure for filing of actionsby landlords for the recovery of premises on the basis of reasonablerequirement and the execution of decrees entered in such actions,and substituted therefor new provisions in respect of those matters.The Amending Act repealed section 22(1 )(b) and substituted a newsubsection in its place. After the amendment, the relevant part ofsection 22(1) reads as follows.
"22(1) Notwithstanding any thing in any other law, no actionor proceedings for the ejectment of the tenant of anypremises the standard rent (determined under section4) of which for a month does not exceed one hundredrupees shall be instituted in or entertained by anycourt, unless where-
the rent of such premises has been in arrears forthree months or more after it has become due; or
such premises are in the opinion of the Court,reasonably required for occupation as a residence forthe landlord or any member of the family of thelandlord, or for the purpose of the trade, business,profession, vocation or employment of the landlord,and such landlord has deposited, prior to theinstitution of such action or proceedings a sumequivalent to ten years' rent or rupees one hundredand fifty thousand, whichever is higher, with theCommissioner for National Housing and has causednotice of such action or proceedings to be served onthe Commissioner;"
The amending Act repealed section 22(1 )(bb) of the Rent Act. Thesteps to be taken by the Commissioner on receipt of the deposit andthe notice of action are set out in section 22 (1 A), but those provisionsare not relevant to the present purpose.
Section 22(1c) which related to execution of decrees was repealedand the following new subsection was substituted in its place.
"22(1 c) Where a decree for the ejectment of the tenant of anypremises is entered by any court on the ground thatsuch premises are reasonably required for occupation
Mohamed Azar v Idroos
SC(Gamini Amaratunoa. J.)2^7
as a residence for the landlord or any member of thefamily of such landlord or for the purposes of thetrade, business, profession, vocation or employmentof the landlord and –
Where the Commissioner of National Housing hasunder subsection (1A) notified court that he is able toprovide alternate accommodation for such tenant; or
Where the Commissioner of National Housing hasfailed to notify to court of the availability of alternateaccommodation under the section (1A) for over aperiod of one year from the date of decree ofejectment and the court is satisfied on applicationmade by the landlord stating that –
the sum of money required to be deposited by himwith the Commissioner for National Housing underparagraph (b) of sub section (1) has been deposited;
the Commissioner for National Housing has failedto notify court of the availability of alternateaccommodation under subsection (1A); and
(Hi) a period of one year has elapsed since the dateon which the decree was entered and he is entitled toobtain a writ of execution.
the Court shall issue a writ of execution of the decree to the Fiscal ofthe court
The amendments made to section 22 of the Rent Act by theamending Act No. 26 of 2002 provided a new mechanism for thelandlord to get the decree entered in his favour executed throughcourt without indefinitely waiting until the Commissioner of NationalHousing provided alternative accommodation to the tenant.
In order to extend the benefit conferred on the landlords by theamending Act No. 26 of 2002 to the landlords who had alreadyobtained decrees for the ejectment of their tenants, a new provisionwas added at the end of section 22(3)(8). The new provision is asfollows:
238Sri Lanka Law Reports[2008) 1 Sri L.R
" the amendment made to the principle enactment by subsection (1) of this section shall mutatis mutandis apply todecrees entered prior to the date of commencement of thisAct subject to:
the requirement that the landlord of such premisesshall deposit the required sum with the Commissionerof National Housing, within two months of the dateof coming into operation of this Act.
the requirement that the Commissioner of NationalHousing shall, where decree has already beenentered, provided alternative accommodation to thetenant of such premises; and
the condition that the period of one year willcommence with effect from the date on which therequired amount is deposited with the Commissionerof National Housing.
The present petitioner Mohamed Azar, one of the intestate heirs ofthe deceased plaintiff, had deposited a sum of Rs. 150,000/- with theCommissioner of National Housing on 23.12.2002, within two monthsof the date on which the amending Act came into operation i.e.
Thus he has complied with the requirement set out insection 22(3)(8)(a) quoted above. Even after one year from the dateof depositing (23.12.2002) a sum of Rs. 150,000/- with theCommissioner of National Housing by the present petitioner appellantMohamed Azar, who had got himself substituted in place of thedeceased plaintiff, the Commissioner of National Housing had failedto provide alternative accommodation to the defendant respondenttenant. Thereafter, the petitioner appellant, after one year from thedate of depositing Rs. 150,000/- with the Commissioner of NationalHousing, has made an application, as he is lawfully entitled to dounder the provisions of the amending Act, to obtain a writ of ejectmentagainst the defendant-respondent.
After the defendant respondent filed his objections to the petitionerappellant's application for the writ of ejectment, the learned DistrictJudge, by his order dated 23.01.2006, refused the application for thewrit of ejectment. The learned District Judge had given two reasonsfor dismissing the application for the writ.
Mohamed Azar v Idroos
SC(Gamini Amaratunga, J.)239
The application for the writ has been made twenty one yearsafter the date on which the decree had been entered and assuch the application is barred by section 337(1) of the CivilProcedure Code which provides that no application toexecute a decree shall be granted after the expiration of tenyears from the date of the decree.
Since the consent decree contained the condition that theplaintiff shall have no right to obtain a writ for the delivery ofpossession of the premises to her until alternativeaccommodation is provided to the defendant tenant by theCommissioner of National Housing, the provisions of theamending Act No. 26 of 2002, in the absence of specificprovision to that effect, do not have the effect of varying orremoving that condition and as such the plaintiff is notentitled to obtain the writ until that condition is fulfilled.
The petitioner appellant filed a leave to appeal application againstthe order of the learned District Judge. The Court of Appeal by itsorder dated 12.3.2007 refused leave to appeal and dismissed theapplication. The Court of Appeal was of the view that since ten yearshad passed from the date of the decree, the petitioner's applicationwas barred by section 337(1) of the Civil Procedure Code.The Courtof Appeal has not dealt with the other reason given by the learnedDistrict Judge that the amending Act No. 26 of 2002 did not have theeffect of varying or removing the condition contained in the consentdecree.
This Court has granted leave to appeal against the order of theCourt of Appeal. Two questions of law arise for decision in thisappeal.
Has the Court of Appeal erred in law in reaching theconclusion that section 337(1) of the Civil Procedure Code isa bar to the application for the writ of ejectment made by thepetitioner appellant?
Did the Court of Appeal and the District Court fail to considerthe purpose and the effect of the rent (Amendment) Act No.26 of 2002 in so far as it was relevant to the consent decreeentered in favour of the (deceased) plaintiff?
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The relevant part of section 337(1) considered by the Court ofAppeal is as follows.
337(1) "No application to execute a decree shall be
granted after the expiration of ten years from •
the date of the decree"
In this case when the consent decree was entered on 1.3.1982 onthe basis of the reasonable requirement of the landlord, section 22(1 c)of the Rent Act, which related to such decrees contained the specificprovision that "no writ of execution of such decree shall be issued bysuch court until after the Commissioner of National Housing hasnotified to such court that he is able to provide alternativeaccommodation for such tenant" Thus the law prevented the courtfrom issuing a writ until the condition set out in the section is fulfilled.So long as this legal prohibition remained in force, the judgment-creditor had no right to obtain the writ of ejectment. In 1985 when theCommissioner of National Housing allocated a house in theRanpokunawatta housing scheme to the tenant judgment debtor asalternative accommodation, the latter obtained a writ of certiorari fromthe Court of Appeal quashing such allocation. After that no alternativeaccommodation was provided to the tenant by the Commissioner untilAct No. 26 of 2002 repealed Section 22(1 c) of the Rent Act andsubstituted a new subsection therefor. As such the legal prohibition toissue the writ and the corresponding, disability of the judgmentcreditor to apply for the writ continued for twenty years until 2002.When a judgement creditor has made an application for the writ, theCourt to which that application has been made has to satisfy itself that"the judgment creditor is entitled to obtain execution of the decree."(see sections 225, 320 and 323 of the Civil Procedure Code). Sincethe legal impossibility of the judgment creditor to obtain the writcontinued for twenty years, the judgment creditor was not entitled toobtain execution of the decree and accordingly he cannot be faultedfor not applying for the writ within ten years from the date of thedecree. Lex non cogit ad impossibilia. The law does not compel theperformance of what is impossible.
After new section 22(1c) inserted by the amending Act No. 26 of2002, the judgment creditor became entitled to deposit ten years rentof the premises or Rs/150,000/- whichever is higher with the
Mohamed Azar v Idroos
SC(Gamini Amaratunga, J.)241
Commissioner of National Housing and apply for the writ one yearafter the date of such deposit Thus the substituted plaintiff petitionerappellant became entitled to execute the decree onlyon 24.12.2003, being the date one year after the deposit ofRs. 150,000/- with the Commissioner. The limit of 10 yearscontemplated in section 337(1) commenced to run only from
The time bar prescribed by section 337(1) commences tooperate only from the date on which the judgment creditor becomesentitled to execute the writ, and as such it has no application to a casewhere the judgment creditor is prevented by a.rule of law fromexecuting the writ entered in his favour. The time bar will apply incases where the judgment creditor after becoming entitled to obtainthe writ has slept over his rights for ten years.
In Jayasekera v HerathW the Court of Appeal has held that theperiod of ten years begins to run only from the date on which thejudgment creditor becomes entitled to make an application for the writ.
I am in respectful agreement with the decision of the Court of Appeal.It would indeed be unjust and inconsistent with the purpose of section337(1) to apply the time bar in a situation where the decree hasbecome incapable of execution due to a rule of law which prevents itsexecution. The learned District Judge and the learned Judges of theCourt of Appeal were in error when they held that the petitionerappellant’s application made on 18.5.2004 to obtain the writ wasbarred by section 337(1) of the Civil Procedure Code. I accordinglyanswer the first question of law in the affirmative.
The second question of law is based on the second reason givenby the learned District Judge for dismissing the application for the writof ejectment. In his order, the learned District Judge has stated thatthe amending Act No. 26 of 2006 did not have the effect of varying thecondition in the consent decree that the plaintiff shall have no right toobtain the writ of ejectment until the Commissioner of NationalHousing is able to provide alternative accommodation to thedefendant tenant. This condition had been included in the consentdecree in view of the specific.provision contained in section 22(1c) ofthe Rent Act (Quoted at the beginning of this judgment).
In view of the broad interpretation given to the term 'alternativeaccommodation' by the Supreme Court in Mowjood v Pussedeniya(supra), the Commissioner of National Housing was unable to provide
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alternative accommodation to many tenants against whom decreehad been entered on the basis of the reasonable requirement of thepremises by the landlord. In view of the precondition contained insection 22(1 c) of the Rent Act, many landlords who had obtaineddecrees in their favour were unable to enjoy the fruits of their litigation.Their decrees were deduced to mere pieces of paper devoid of thesubstantive benefits which flow from decrees entered by Courts. TheRent (Amendment) Act No. 26 of 2002 repealed section 22(1c),enacted a new provision in its place and made it applicable to decreesalready entered at the time the repealed section 22(1 c) was in force.The object of this amendment was to remedy the mischief resultingfrom the precondition contained in section 22(1 c). When theLegislature has removed that precondition and extended the benefitof such removal to those who had already obtained decrees in theirfavour, there is no justification in law and equity to tie down the decreeholders to a condition which they were legally obliged under theexisting law to agree to. The mechanical approach adopted by thelearned District Judge would result in negating the object sought to beachieved by the amendments made to section 22(1 c) and section22(3)(8) by the amending Act No. 26 of 2002.
The Court of Appeal has not dealt with the second reason given bythe learned District Judge for dismissing the substituted plaintiffpetitioner appellant's application for the writ of ejectment.
For the reasons set out above, I answer the second question of lawin the affirmative and set aside the order of the Court of Appeal dated12.3.2007 and the order of the learned District Judge of Gampoladated 23.01.2006 and allow the substituted plaintiff petitionerappellant’s application for ejectment of the defendant respondentrespondent S.H.M. Idroos from the premises relevant to this case. Idirect the learned District Judge to issue the writ of ejectmentforthwith. The parties shall bear their costs in relation to executionproceedings.
The order of the Court of Appeal dated 12-3-2007 set aside.
MARSOOF, J.-I agree.
SOMAWANSA, J.-I agree.
Appeal allowed.