026-NLR-NLR-V-79-1-P.-SEKVACHANDRAN-Defendant-Petitioner-and-D.-A.-D.-K.-SILVA-Plaintiff-Respon.pdf
RAT WATTE J.—Seivachandran v. Silva
229-
1977Present; Ismail, J. and Ratwatte, J.P. SELVACHANDRAN, Defendant-Petitionerand
A. D. K. SILVA, Plaintiff-Respondent
S.C 380/77—M. C. Mt. Lavinia 321 /ED
Rent Act No. 7 of 1972, section 27—Application for execution of writunder section 27(3)—Objections to such application—Notice ofappeal from judgment filed under section 325(1) of Administra-tion of Justice Law—Does filing of such appeal stay executionpending appeal—“ Generalia specialibus non derogant ”—Applica-tion of maxim to section 27 of Rent Act and section 325(1) ofAdministration of Justice Law, No.44 of 1973—Interpretation ofStatutes.
The defendant-petitioner filed this application to revise an ordermade by the Magistrate’s Court under section 27(3) of Rent ActNo. 7 of 1972 refusing to stay execution of an order for the deliveryof possession. It was submitted on behalf of the petitioner thatproceedings should be stayed pending an appeal from the judgmentin this case filed by the defendant under the Administration ofJustice Law, No. 44 of 1973, for the reasons that (a.) section 27(3)of the Rent Act applied only when there is an appeal against theorder allowing execution; (b) section 27(3) applied only if theconditions set out in section 27(1) (e) were established; and (c)section 325(1) of the Administration of Justice Law supersededsection 27(3) of the Rent Act.
Held:
That on a reading of sub-section 2 (b) of section 27 of the Rent
Act it was clear that the order for the delivery of possessionis mandatory along with the .main finding in favour of theplaintiff and that the order is in the main judgment itself.
That the clear intention of the legislature when it enacted
section 27(3) of the Rent Act was that there should not bea delay due to an appeal. It would be contrary to themanifest provision of section 27 (3) if one were to look intothe question of whether the judge’s finding is correct whenconsidering an order for the delivery of possession.
That section 325(1) of the Administration of Justice Law did
not have an effect of staying proceedings when a notice ofappeal is accepted by Court in cases coming under section 27of the Rent Act. Section 325(1) though the subsequent enact-ment is a general provision and therefore does not repealor supersede the special provisions of section 27(3) of theRent Act in the absence of a particular intention to do sobeing established.
Cases referred to :
Seward v. The Vera Cruz (1884) 10 A. C. 59; 52 L. T. 474; (1881^5)All E. R. Rep. 216.
Corporation of Blackpool v. Starr Estate Co. Ltd., (1922) 1 A. C. 27.126 L. T. 258 ; 38 T.L.R. 79.
^PPLICATION to revise an order of the Magistrate’s Court,Mt. Lavinia.
Rodrigo, for the defendant-petitioner.
L. de Silva, for the plaintiff-respondent.
Cur. adv. vult.
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RAT WATTE, J.—Selvachandran v. Silva
November 8, 1977. Ratwatte, J.
This is an application made by the defendant-petitioner(hereinafter referred to as the defendant) for the revision ofan order made by the Magistrate’s Court, Mount Lavinia, undersection 27 (3) of the Rent Act, No. 7 of 1972, refusing to stay theexecution of an order for the delivery of possession of a partof the premises in question in this case, to the plaintiff-respondent(hereinafter referred to as the plaintiff).
The plaintiff as the Trustee of the Koneswarie Maha Devaleinstituted action for the ejectment of the defendant who washis tenant under section 27 (1) of the Rent Act. The plaintiffpleaded that the premises in question were residential premisesand that both he and the defendant resided in different partsof the same premises and further that the part of the premiseswhich was let to the defendant was not separately assessed onthe day on which it was let. After trial the learned Magistrategave judgment for the plaintiff as prayed for in the plaint on11.04.1977. The defendant gave notice of appeal from the saidfinding and judgment to this Court. The plaintiff filed an appli-cation on 28.04.1977 for writ in terms of section 27 (3) of theRent Act. The defendant objected to the application for execu-tion and moved in terms of section 325(1) of the Administrationof Justice Law, No. 44 of 1973, that the execution of the orderof ejectment be stayed pending the hearing of the appeal. Thelearned Magistrate after inquiry made order of 24.05.1977 refusingto stay execution and allowed the application of the plaintiff forexecution. The defendant seeks to revise this order and praysthat the execution of the order to eject the defendant be stayed.
Learned counsel for the defendant urged three grounds insupport of his submission that the order of the Magistrate of24.05.1977 be revised : Firstly, that section 27 (3) of the RentAct applies only when there is an appeal against an order allow-ing execution. Secondly, in any event section 27 (3) will applyonly if the conditions set out in section 27 (1) (c) are established.And thirdly that section 325(1) of the A.J.L. supersedes section27 (3) of the Rent Act.
As regards the first ground urged by counsel for the defen-dant it would be convenient to set out here the provisions ofsub-sections 2 and 3 of section 27 of the Act: —
“ (2) Where any action or proceedings for the ejectment of atenant is is instituted in a court under sub-section (1),such court—
(a) shall as expeditiously as possible hear and determinesuch action or proceedings ; and
HAT WATTE, J.—Selvachandran v. Silva
231
(b) shall, where it decides that the tenant, shall beejected, make order for the delivery of possessionof the part of the premises to the landlord on adate not later than three months from the date ofsuch order and may, if necessary by the same orsubsequent order direct the Fiscal to eject from thepremises any person for the time being in occupa-tion of such part of the premises and to deliverpossession of, such part of the premises to thelandlord.
“ (3) Where an order under sub-section (2) is issued to theFiscal by a court, the execution of such order shall notbe stayed in any manner by reason of any steps takenor proposed to be commenced in any court with a viewto questioning, varying or setting aside such order.”
It is clear on a reading of sub-section 2 (b) that the order forthe delivery of possession is mandatory along with the mainfinding in favour of the plaintiff and that the order is in the mainjudgment itself. In the instant case the Magistrate after answer-ing the issues made order granting to the plaintiff the reliefsclaimed by him in the plaint. In paragraph (a) of the prayerthe plaintiff asked for an order of ejectment of the defendant.My understanding of sub-section 2 (b) is that the order for thedelivery of possession is the same as the judgment in the case.The order to the Fiscal flows from the decision in the plaintiff’sfavour. The object of sub-section (3) of section 27 is not tohalt execution pending appeals. If one were to limit the provisionsof sub-section (3) to an order to execute, the object of thatsub-section will be nullified. The word order in sub-section (3)must be given a wider meaning, that is, that it is the decision inthe case.
Regarding the 2nd ground urged by the learned counsel forthe defendant, I do not think that there is any such substancein this submission. The clear intention of the legislature whenit enacted section 27 (3) of the Act was that there should notbe a delay due to an appeal. When considering an order for thedelivery of possession and the consequential direction to theFiscal, if one were to look into the question whether the judge’sfinding is correct, that would be contrary to the manifest provi-sion of section 27 (3) of the Act.
In regard to the third submission of counsel for the defen-dant that section 325 (1) of the Administration of Justice Lawsupersedes section 27 (3) of the Rent Act learned counsel forthe plaintiff submitted that section 325(1) of the A. J. L., which
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RATWATTE, J.—Selvachandran v. Silva
states that upon a notice of appeal being accepted by court, allfurther proceedings in an action shall be stayed, is a generalprovision. Section 27 of the Rent Act provides for the grantingof relief in particular cases and section 27 (3) of the Act dealswith a special case. Learned counsel for the plaintiff furthersubmitted that the principle of “ generalia specialibus nonderogant ” applied and that section 325(1) of the A. J. L. beinga later general provision of law, it must be read subject tospecial particular provisions. Craies in his work “ On StatuteLaw” (5th Edition) at page 348 states as follows:—
“ (ii) Repeal of special by general enactment. Generaliaspecialibus non derogant. The general rule, that priorstatutes are held to be repealed by implication by subsequentstatutes if the two are repugnant, is said not to apply if theprior enactment is special and the subsequent enactment isgeneral,…. ”
In the case of Seward v. The Vera Cruz, reported in (1884-5)10 A.C. 59, Lord Selboume stated at page 68 as follows : —
“ Now if anything be certain it is this, that where thereare general words in a later Act capable of reasonable andsensible application without extending them to a subjectspecially dealt with by earlier legislation, you are not tohold that earlier and special legislation indirectly repealed,altered, or derogated from merely by force of such generalwords, without'any indication of a particular intention todo so. ”
Again in the case of Corporation of Blackpool v. Starr EstateCo. Ltd., reported in (1922) 1 A.C. 27, Lord Viscount states asfollows at page 34—
“ My Lords, in that state of matters, we are bound, inconstruing the general language of the Act of 1919, to applya rule of construction which has been repeatedly laid downand is fimly established. It is that wherever Parliamentin an earlier statute has directed its attention to an indivi-dual case and has made provision for it unambiguously,there arises a presumption that if in a subsequent statutethe Legislature lays down a general principle, thatgeneral principle is not to be taken as meant to rip up whatthe Legislature had before provided for individually, unlessan intention to do so is specially declared. ”
I am therefore of the view that section 325 (1) of the Adminis-tration of Justice law though a subsequent enactment is ageneral provision and therefore does not repeal or supersede thespecial provisions of section 27 (3) of the Rent Act in the absenceof a particular intention to do so in section 325 of the A. J. L.
TE1STNTS ECOON, C. J.—Meegoda v. Jayaainghe
233
For these reasons the defendant petitioner is not entitled tothe reliefs asked for and the petition is therefore refused withcosts.
Ismail, J.—I agree.
Application dismissed.