Sri Lanka Law Reports (1978-79) 2 S.L.R.
Nagaria v. Gulamhussein and others
COURT OF APPEAL.
RANASINGHE, J. AND F.ODRICO, J.
C. A. (S.C.) 448/71 (F)—D.C. COLOMBO 2319/zl.
SEPTEMBER 10, 1979.
Death of plaintiff—Action for restoration to possession oj premises andfor damages consequent on trespass—Does cause of action survive—Whether widow entitled to be substituted as legal representative.
The original plaintiff sued the defendants seeking to be restored topossession of certain premises he alleged to have occupied or possessedat the material time and sought to establish his rights as against thedefendants to possession of this property. He also claimed damages forthe loss caused to him by defendants jointly by their collusive acts oftrespass. The original plaintiff died pending the action and his widowas legal representative sought to be substituted in his place. Thedefendants objected on the ground that the cause of action on whichthe plaintiff had come to court did not survive and this objection wasupheld by the learned trial Judge.
The appellant who was the widow of the original plaintiff was entitledto be substituted both by reason of the fact that he was seeking toestablish his rights as against the defendants to possession of the propertyin question and also because his claim for damages was based on delictand these causes of action survived to his legal representative.
Nagaria v. Gulamhussein (Rodrigo, J.)
Cases referred to
Deerananda Thero v. Ratnasara Thero, (1958) 60 N.L.R. 7.
Ramasarup Das v. Rameswar Das, (1950) A.I.R, Patna 184-
Fernando v. Livera, (1927) 29 N.L.R. 246.
APPEAL from the District Court, Colombo.
S. Kanagarajah, for the plaintiff-appellant.
Ben Eliyathamby, for the defendants-respondents.
Cur. adv. vult.
September 19, 1979.
RODRIGO, J.The appellant is the widow of the plaintiff who died pending thetrial of the action. There is no dispute that she is, the legalrepresentative of her late husband. Her substitution, however,in place of the deceased-plaintiff was resisted on the groundthat the cause of action on which the plaintiff came to Courthas not survived. The learned trial Judge upheld this objectionand this appeal has been preferred from that order.
The plaintiff was seeking damages from the defendants forhis unlawful eviction from the premises in suit by them andfor recovery of possession. It has transpired in evidence that hehad been a sub-tenant of one Rahuman who is alleged to bethe lawful tenant of the premises. Having become a sub-tenant,however, he had in turn sub-let the premises to the 2nd defen-dant against whom he had obtained judgment for recovery ofpossession of the premises. The premises were business premises.Writ of possession having been taken out, he had been resistedby the defendants. This action had been instituted by him againstthe defendants when he discovered that he had been deprived ofhis possession by the defendants acting eollusively. As to whyhe did not pursue his remedy in the writ proceedings itself isanother matter.
The plaintiff has not instituted this action for any breach ofcontract of tenancy between him and his immediate landlordRahuman. As long as the tenancy between the plaintiff’s imme-diate landlord Rahuman and Rahuman’s landlord, the owner ofthe premises who is the 1st defendant in the case, continued, theplaintiff in this case was entitled to be in possession and claimthe recovery of possession from whomsoever that deprived himof his possession. It is urged that in the course of the trial ithad transpired that Kahuman’s tenancy with the 1st defendant,the owner of the premises, had been terminated by Rahuman’sdeath as far back as 1965 while the action by the plaintiff had'commenced only in 1970. If this were so, consideration may arise
Sri Lanka Law Reports (1978-79) 2 S. L, R.
as to whether the plaintiff could have successfully maintainedthis action against the 1st defendant, the owner of the premises.Even so, the considerations that will arise as against the 3rd, 4thand 5th defendants will still be different. Whether the plaintiffcould maintain his; action against any one or more of the defen-dents is immaterial for determining the issue arising on thisapplication. What is required is to determine the character of hiscause of action as framed by him. He is seeking restoration ofthe possession of the premises alleged to have been in his occupa-tion or possession at the material time and was seeking toestablish his rights as against the defendants to the possessionof the property. This kind of cause of action survives on the deathof a plaintiff. In the case of Deere,nanda Thero v. llatnasara Thero
at 10, Sinha J. is cited as having observed in Ramsarup Das v.Rameshwar Das (2) that,
“If a plaintiff is suing to establish his right to a certainproperty in his own rights and not by virtue of his office,certainly the cause of action for the suit will survive, andhis legal representatives can continue the suit on the deathof the original plaintiff, either during the pendency of thesuit or of the appeal”
The plaintiff was also claiming damages for the loss caused tohim by the defendents jointly by their collusive acts of trespass.The claim is based in delict and it has been held in the case ofFernando v. Livera et al. (3) that the cause of action to recoverdamages for trespass survives to the legal representative of theplaintiff. It is there stated,
“Where the wrongful loss has caused patrimonial loss andcomes within the principles of the Lex Aquilia the actiondoes not lapse with the death of the plaintiff before litiscontestatio but enures to the benefit of the heirs. ”
The learned trial Judge had dealt with the application lorsubstitution on the footing that the action by the plaintiff was atenancy action pure and simple and that with the death of theplaintiff his contractual rights of tenancy terminated, withoutthe plaintiff’s cause of action, based as it were, in his view, onhis contract of tenancy with his immediate landlord, survivingto the petitioner. We are of the opinion that the learned Judgehas taken an erroneous view of the nature of the cause of actionaverred by the plaintiff when its character is as set out above.In the circumstances, the petitioner is entitled to be substitutedin place of the deceased-plaintiff as his legal representative tocontinue the action.
Perera v. Dharmadasa
We, therefore, allow the appeal and set aside the order of thelearned Judge refusing the application for substitution. We makeorder that the petitioner be substituted in place of the deceasedplaintiff. The petitioner is entitled to the costs of this appeal andthe costs of her application in the trial Court.
RANASINGHE, J.—I agree.Appeal allowed.
Nagaria v. Gulamhussein and others