004-SLLR-SLLR-1985-V1-NANAYAKKARA-v.-NAVARATNE.pdf
NANAYAKKARA
v.NAVARATNE
SUPREME COURT.
WIMALARATNE, J„ COLIN-THOM'E, J. AND RODRIGO, J.
S. C. APPEAL No. 55/81 – C. A. APPEAL No. 382/74 (F) – C. R. MATALENo. 16152.
OCTOBER 1,1984.
Landlord and Tenant – Tenant evicted under partition decree from premises to whichRent Restriction Act applied – Right of Tenant to sue for restoration topossession – Actio Conducti – Civil Procedure Code, section 328.
The plaintiff, the tenant of one Davith Appuhamy occupied premises situated on a landin respect of which a partition suit was filed. Davith Appuhamy who was the 22nddefendant died during the pendency of the action and in his room Agnes (the present
appellant), her sister and the sister's husband were substituted as 25th, 24th and 23rddefendants respectively. The plaintiff treated Agnes as his landlady. By the final decree,a lot in which was situated the house occupied by the plaintiff was alloted to Agnes, hersister and the sister's husband. Although the Rent Restriction Act applied to thepremises occupied by the plaintiff, Agnes, her sister and sister's husband took out writunder section 62 of the Partition Act and had the plaintiff evicted. Thereafter they soldthe premises to a third party who installed his own tenant in the premises. The plaintifffiled this suit naming Agnes as defendant, to be restored to possession. The DistrictJudge dismissed the action as Agnes had parted with possession but the Court ofAppeal reversed this finding.
Held –
{1) Privity of contract had been established between the tenant (plaintiff) and the newowner (Agnes).
Although the plaintiff failed to seek redress in the partition suit yet the plaintiff wasnot debarred from invoking the provisions of s. 328 of the Civil Procedure Code.
One of the duties of a landlord is to guarantee to the tenant quiet possession of thepremises let and a personal bona fide action the actio conducti (not possessory action)is available to the tenant to claim the use and occupation of the property let and theperformance of the duties imposed on the landlord. The action may be brought by thetenant or by any person who succeeds him in his capacity of tenant and it lies againstthe landlord or any person who succeeds him in his capacity of landlord.
APPEAL from the judgment of the Court of Appeal.
J. IN. Subasinghe, P. C. with Miss E. S. M. Edirisinghe for defendant-appellant.
A. P. Niles with Lalith Gamlath for plaintiff-respondent.
Cur. adv. vult.
October 22, 1984.
WIMALARATNE, J.
The plaintiff-respondent was the monthly tenant of premises No. 12,Matale Road, Rattota from about the year 1954. The premises weresubject to the Rent Restriction Act. The original landlord was one W.P. Davith Appuhamy, the father of the defendant-appellant. An action(D. C. Matale case No. P263) was instituted for the partition of theland in which the premises are situated, and Davith Appuhamy wasthe 22nd defendant in that action ; the plaintiff-respondent washowever not a party. Davith Appuhamy died in 1965, during thependency of the partition action, and the defendant-appellant Agnes,her sister and sister's husband were substituted as the 25th, 24th and23rd defendants respectively in the room of the 22nd defendant. It iscommon ground that after the death of Davith Appuhamy, Agnes wasrecognised as the landlady. Agnes had once sought to have theplaintiff ejected, but without success ; that was after DavithAppuhamy's death, but before final decree.
Final decree in the partition action was entered on 13.05.1969,and lot 11 in partition plan No. 903C, in which lot the premises inquestion are situated, was allotted to the 23rd, 24th and 25thdefendants. On 09.03.1971 they made an application under section62 of the Partition Act (Cap. 69) for delivery of possession of lot 11 tothem. The fiscal effected delivery on 16.03.1971 by ejecting theplaintiff and his family, and placing the defendants in possession. Fourdays later, on 21.03.1971, the defendants sold and transferred thepremises to one Peiris on deed D9 and Peiris's tenant oneSamarasinghe went into occupation. The plaintiff instituted thepresent action against Agnes on 22.03.1971 seeking that he be put,placed and quieted in possession as tenant under her, and that anorder for ejectment be entered against her and her agents. Hereserved the right to claim damages in a separate action.
Although the learned trial Judge correctly held that the plaintiff'stenancy rights were not wiped out by the final decree entered in thepartition action, he dismissed the plaintiff's action for the reason thatthe defendant had divested herself of title the day before this actionwas instituted, and hence no relief could be granted against her.
The Court of Appeal reversed this finding of the trial judge holdingthat the defendant did not cease to be the landlord of the plaintiff onthe mere sale of the property, until privity of contract was establishedbetween the tenant and the new owner. Answering anothercontention made on behalf of the defendant, the Court of Appeal tookthe view that notwithstanding the failure of the plaintiff to seek redressin the partition action itself by invoking the provisions of section 328 ofthe Civil Procedure Code, yet the plaintiff was not debarred fromasking for a decree in a separate action for the restoration ofpossession on the basis of the tenancy. Answering yet anothercontention, that of the futility of a decree for possession against thedefendant who was out of possession and because such a decree cannever be enforced against the defendant as long as the tenant of thevendee is in possession, the Court of Appeal took the view that thatquestion does not arise at this stage, and could only arise when theplaintiff seeks to enforce the decree.
It seems to me that the Court of Appeal was correct in itsconclusion on all the above findings. Learned Counsel for thedefendant-appellant contended before us that there is no basis for thepresent action either on any principle of the common law or on anystatutory provision. Learned Counsel for the plaintiff-respondentargued that this is a possessory action instituted by a tenant inpossession who had been ousted. I do not think so, because apossessory action can be instituted only if a person in possession hasbeen dispossessed of immovable property otherwise than by processof law. Here the plaintiff had been dispossessed as a result of an orderfor delivery of possession entered under the Partition Act. The factthat the plaintiffs rights were not wiped out by the partition decree is adifferent matter altogether.
What then, is the basis for the present action ? Admittedly thedefendant was the plaintiff's landlord on the date of ejectment. One ofthe duties of a landlord is to guarantee to the tenant quiet enjoymentof the premises let. The landlord is under a duty not to interfere withthe tenant's occupation. He commits a breach of that duty if he eitherdispossessed the tenant or if he disturbs him in his beneficialenjoyment. Dispossession may take the form of actual ejectment ofthe tenant from the leased premises, or on any conduct by thelandlord having the same effect – Wille, Landlord & Tenant in SouthAfrica. (4th Edition) page 139.
The 'actio conducti' is the action available to the tenant in claimingfrom the landlord the use and occupation of the property let, and theperformance of the duties imposed on the landlord. Wille, page 123 /Voet 19.2.14. The action may be brought by the tenant or by anyperson who succeeds him in his capacity of tenant and it lies againstthe landlord or any person who succeeds him in his capacity oflandlord. The action is a personal bona fide action which is granted tothe lessee and to his heirs against the lessor and against his heirs -Voet 19.2.14 Gane's translation Vol. 3 page 418).
The conduct of the landlord had the effect of dispossessing thetenant. The landlord was a party to the application for an order fordelivery of possession. She proceeded with the fiscal to execute thatorder. The fiscal ejected the plaintiff and his family on that order. Thefiscal thereupon placed the landlord in possession. This was conductamounting to dispossession by the landlord himself, by abuse of the
SCNanayakkara v. Navaratne (Wimalaratne, J.)39
process of Court. A cause of action therefore arose to the plaintiff tosue the defendant to have himself restored to the possession of thepremises as well as for damages.
This Appeal is accordingly dismissed with costs.
COLIN THOME, J. – I agree.
RODRIGO, J. – I agree.
Appeal dismissed with costs.