026-NLR-NLR-V-51-NUGERA-Appellant-and-RICHARDSON-Respondent.pdf
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GRATFAEN J.—Nugera v. Richardson
1949Present: Gratiaen J.NUGERA, Appellant, and RICHARDSON, RespondentS. C. 155—C. R. Colombo, 10,018
Rent Restriction Ordinance—Suit for ejectment—Consent decree— Validity ofcompromise—Civil Procedure Code, section 408.
Thu limitations planed on the jurisdiction of a Court by the provisionsof the Kent Restriction Ordinance in an action against a tenant whois unwilling to vacate tho premises do not in any way fetter the rightor the duty of the Court to give effect to lawful compromises willinglyentered into in a pending action between a landlord and his tenant.
^LPPEAD from a judgment of the Commissioner of Requests, Colombo.
S. Canagarayar, with M. A. M. Hussain, for defendant appellant.
Ivor Mi mo, with H. B. White, for plaintiff respondent.
Cur. adv. vult.
December 7, 1949. Gratiaen J.—
The appellant was the tenant of a bungalow in VVellawatte to whichthe provisions of the Rent Restriction Ordinance, No. 60 of 1942, admit-tedly applied. In May, 1947, the landlord died, and the respondent, towhom probate was duly issued, administered the estate as executor.
On February 6, 1948, the respondent sued the appellant in the Courtof Requests of Colombo for rent and ejectment. The appellant filedanswer setting up various defences under the Ordinance, and the casecame up for trial on June 15, 1948. There can be little doubt Hint iutho normal course of events the Court would have had no jurisdictionto enter judgment in favour of the respondent at the trial except uponproof to its satisfaction of one or other of the relevant facts set out in theprovisions of Section 8 of the Ordinance of 1942. Whon a tenant is inpossession and unwilling to give it up, possession can only berestored to the landlord by order of the appropriate Court, andsuch an order can only be made after certain fact* specifiedin the Ordinance are proved or admitted to exist. Section 8restricts to this extent the jurisdiction of the Courts to inakoorders in the cases of premises to which the Ordinance applies—vide Burton v. Finckam 1 where the Court of Appeal decided that, not-withstanding tho fact that a tenant had prior to the institution of actionagreed to vacate the premises on a future date, the Court was not absolvedfrom the duty of calling for proof of the relevant facts prescribed by theanalogous legislation in England if the tenant subsequently refused toimplement his agreement. An order for ejectment in invitum cannototherwise be made because, as Atkin L.J. pointed out, “ parties cannot byagreement give the Courts jurisdiction which tho Legislature has enactedthey are not to have ”. Indeed, if the law were otherwise, tho veryobject of the Rent Restriction Ordinance would be defeated.
1 {1921) 2 K. B. 291.
GRATIAEN J.—Nugera v. Richardson
17
In the present action, the case did not proceed to trial on June 15,1948, because the parties effected a compromise in terms of Section 408of the Civil Procedure Code. The terms of the compromise wereembodied in a decree in the following terms:—
“ It is ordered and decreed of consent that the defendant be ejectedfrom premises No. 3 situated at St. Lawrence Road, Wellawatte,Colombo, bounded on the North by premises No. 307, Colombo-GallcRoad, South by St. Lawrence Road, East by premises No. 5,St. Lawronce Road, Wellawatte, and West by Gallo Road.
It is further ordered and decreed of consent that the defendant dopay to the plaintiff damages at Rs. 53*83 per mensem from Junel, 1948,till defendant is ejected from the premises. If defendant pays eachmonth’s damages by the 15tb of the following month as from July 15,1948, writs do not issue till July 31, 1949. In default both writs toissue. ”
The resulting position was that the appellant did not put the respondentto the proof of the various facto which would otherwise have to be estab-lished before the Court could enter a decree for ejectment against an un-willing tenant, and in effect the Court was relieved of its duty to callfor such proof. The appellant preferred instead to obtain from therespondent the concession of remaining in occupation of the premisesfor a further period of 13$ months provided that he made regular monthlypayments of Rs. 53*83 to the respondent.
This eminently satisfactory arrangement was implemented by bothparties until July 25, 1949. On that date the appellant, having nowenjoyed on his part the full benefit of the terms of the compromise, lookedfor some means whereby he might deprive the respondent of the corre-sponding advantage which the latter was entitled to claim under thesettlement arrived at in Court. Accordingly, barely a week before“ D Day ”, the petitioner applied to the Court to set aside the consentdecree of the previous year, alleging that notwithstanding the solemnagreement which had been entered into by them and sanctioned by theCourt as a lawful compromise, that decree was ultra vires and madewithout jurisdiction. This very startling proposition was rejected by thelearned Commissioner of Requests, who held that he was bound by thedecision of Rose J. in Thomas v. Bawa *.
The appellant now invites this Court to set aside the learned Com-missioner's order refusing his application to vacate the decree. I declineto do so, and only regret that it has been possible for the appellant, byresorting to the simple device of filing what I regard as a frivolous appeal,to obtain a further extension of time to remain in possession of thepremises which he was bound to vacate not later than July 31, 1949.
It is not suggested that the compromise effected on June 15, 1948,was tainted with fraud, duress or any other circumstance which wouldvitiate an agreement of parties in accordance with the principles of theRoman-Dutch Law {Sabapathy v. Dunlop1). The appellant does notsuggest that the terms of the compromise were not very acceptable tohim when he agreed to them, although the relentless approach of the date» {1945) 46 N. L. R. 215.* {1935) 38 N. L. R. 113.
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V, I'1- But Co. Ltd. i'. Commissioner oj Motor Transport
fixed for him to implement his part of the settlement must of course havecaused him many misgivings. It is, however, contended, ontheauthorityof Burton v. Fincham1,that the Court which sanctioned the consent decreein 1948 acted without jurisdiction because no evidence had been led beforeit at the relevant date to prove that the respondent was in fact and inlaw entitled to eject the appellant. This argument is without merit.Burton's cose dealt only with the case of a tenant who was unwillingat the date of trial to give up possession. Scrutton J,.J. saw “ no reason,however, why the Judgo, on being satisfied that the tenant was thenready to go out (not that he was once willing but had changed his mind)should not make an order for possession Atkin L.J. also took the viowthat “ if the partios admit that one of the events had happened whichgave the Court jurisdiction, and if there was no reason to doubt thebona fidos of the admission, the Court was under no obligation to makefurther inquiry as to the question of fact Rose J. came to the sameconclusion in Thomas o. Buna {Supra).
In my opinion the limitations placed on the jurisdiction of a Court bythe provisions of tho Rent Restriction Ordinance of 1942 (and the subse-quent Act of 1948) in actions between a landlord and a tenant who isunwilling to vacate the premises do not in any way fetter the right ortho duty of tho Court to give effect to lawful compromises willingly enteredinto in a ponding action between a landlord and his tenant. The provi-sions of Suction 408 of the Civil Procedure Code still remain intact.It is monstrous to contend that a defendant who, in a tenancy action,has entered into an unobjectionable bargain to give up an advantagein consideration of obtaining some other benefit should be relieved fromhis bargain after he has received in full measure the benefit accruing fromthe compromise. If a tenant is to be placed in a specially privilegedposition in such eases, the Legislature should say so in unambiguousterms. f dismiss tho appeal with costs.
Appeal dismissed.