029-SLLR-SLLR-1994-V2-PARAMANATHAN-AND-ANOTHER-V.-KODITUWAKKU-ARAHCHCI.pdf
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PARAMANATHAN AND ANOTHER
v.
KODITUWAKKU ARACHCHI
SUPREME COURT.
AMERASINGHE, J.
DHEERARATNE, J. ANDWADUGODAPITIYA, J.
S.C. APPLICATION NO. 37/88.
C.A. NO. 48/87.
S.C. APPLICATION NO. 38/88.
A. NO. 383/87.
C. KANDY 1426/RE.
OCTOBER 19. 1992.
Civil Procedure – Execution pending appeal – Revision and application for leaveto appeal – Civil Procedure Code – sections 752(2), 753, 755(4), 756(5), (6), (7),761, 763(2). Lex non cogit ad impossibrlia.
In a rent and ejectment case the District Judge gave judgment for the landlord.The tenant appealed. The landlord then filed application for execution pendingappeal. The application for execution was allowed but the reasons for the orderwere not in the record though the relevant journal had an entry "videproceedings'. After the order allowing execution an order for deposit of securityby the landlord was made. The tenant moved in revision and applied for leave toappeal. Objection was taken in limine to these two applications of the tenant onthe ground that he had failed to comply with Rule 46 of the Supreme Court Rules.
Held:
A tenant against whom an order for execution pending appeal has been madecan proceed in two ways: File an application for leave to appeal (s. 752(2)C.P.C.). Here stay of execution can be obtained only if leave is granted after thelandlord is heard (section 756(5), (6) and (7) CPC). Before such leave is granted,there is nothing to preclude the landlord from getting the writ of ejectment againstthe tenant executed. The other method is to move the Court of Appeal in revisionand obtain a stay of execution order ex parte (s.753).
Neither the application for leave to appeal nor the application for revision hadthe reasons for the order to execute the writ pending appeal made by the DistrictCourt. Objection was taken based on this omission that there was non*
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compliance with Rule 46 of the Supreme Court Rules, as the copy of the reasonswas not filed in the record the tenant cannot be faulted for this omission on theground of non-compliance with Rule 46. Lex non cogitad impossibitia.
Cases referred to:
Kiriwanthe and Another v. Navaratne and Another BALJ Vol, III part 11 p. 15.
Samarasekera v. Mudiyanse [1990] 1 Sri LR 13.
APPEAL from order of Court of Appeal reported in (1988] 1 Sri LR 315.
K. N. Choksy P.C. with L. C. Seneviratne P.C., Faiz Musthapha P.C. andLakshman Perera for Appellant.
A. K. Premadasa P.C., with T.8. Dilimuni and G. H. A. Suraweera for therespondent.
Cur adv. vult.
December 02, 1992,
DHEERARATNE, J.
This is an appeal from a judgment of the Court of Appeal, rejectingin limine Itwo applications made by the appellants (defendanttenants). The first was a revision application (C.A. 383/87), and thesecond a-leave to appeal application (C.A. 48/87), both in relation toan order . dated 24.3.87 made by the learned Additional DistrictJudge, Kandy, allowing an application for execution of writ pendingappeal, made at the instance of the respondent (plaintiff landlord), interms of section 761 of the Civil Procedure Code. The only matter forconsideration by us is whether the Court of Appeal was right indismissing both applications in limine. This judgment of the Court ofAppeal reported in [1988] 1 Sri LR 315, was commented upon in thedecision; of this court in Kiriwanthe and Another v. Navaratne andAnother,1,1 decided on 16.10.1990. I may add that had it beenbrought: to the notice of this court in the course of arguments inKirmanihe's case that this judgment was pending in appeal beforethis court at that time, this court would probably have avoided anycommefnt on it as it did with reference to the Court of Appealjudgment in Samarasekera v. Mudiyanse H), which too was in appeal.
i
The respondent filed action against the appellants on 5.8.80, tohave them ejected from the rent controlled business premisessituated in the heart of the Kandy Municipality. The grounds ofejectment are immaterial for the purpose of this appeal. After trial, the
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learned Additional District Judge gave judgment in favour of therespondent on 20.11.85 and the appellants appealed from thatjudgment to the Court of Appeal. That appeal, we are informed, is stillpending having not yet passed the initial step of preparation of thebriefs. On 5.3.86. the respondent moved the District Court to get thedecree executed against the appellants pending appeal. Objectionsof the appellants were filed on 22.10.86. The inquiry into theapplication of the writ which took the form of submissions of counselonly, was concluded on 19.1.87 and the learned Additional DistrictJudge who held that inquiry (not the learned Additional District Judgewho heard the main case) gave the date for his order as 5.2.87. Theorder was not delivered on that day, but was postponed for severaldates viz. 11.2.87, 10.3.87, 17.3.87 and finally for 24.3.87. I shouldnot be misunderstood for mentioning these several dates ofpostponement as casting any aspersions on this Additional DistrictJudge; we were informed that he was not in the best of health duringthis time and that he later unfortunately succumbed in harness to theserious illness he was suffering from.
In order to appreciate the contending positions taken up by theappellants and the respondent, I think it is necessary to briefly outlinethe legal machinery available for the enforcement of respective rightsof a landlord who is a judgment-creditor and a tenant who is ajudgment-debtor. While a landlord will be most anxious to enjoy thefruits of a judgment obtained in his favour as expeditiously aspossible, his tenant will be (perhaps even stubbornly) desirous ofretaining possession of the rented premises until he exhausts all hisrights in getting the original court judgment reviewed by the appellatecourts. The filing of an appeal by the tenant, does not ipso facto stayexecution of the decree obtained against him (sections 755 [4] and761 of the Civil Procedure Code). The landlord can file an applicationfor execution of the decree obtained by him, after the expiry of thetime allowed for appealing from the decree (section 761) or where anappeal is preferred against such decree, he may forthwith apply forexecution (section 761 proviso). In the event of such an applicationbeing made by the landlord, on sufficient cause being shown by thetenant, the original court may require security be given by thelandlord for restitution of the property etc. before execution is allowed(section 761 [1]). The original court may also order stay of executionof the decree given in the landlord’s favour, upon such terms andconditions, if the tenant satisfies that substantial loss may result tohim and if security is given by him for the due execution of the decreeeventually (section 763 [2]). When the original court makes an order
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in favour of the landlord for execution of the decree pending appeal,the aggrieved tenant may desire to canvass the correctness of thatorder in the Court of Appeal. This could be done in two ways. Thefirst method^ is to file an application for leave to appeal in the Court ofAppeal (section 752 [2]). The important question of staying the orderfor execution of the decree will then arise only at the stage leave isgranted by the Court of Appeal, after having heard the landlord(section 756 [5], [6] and [7]). Before such leave is granted, there isnothing to preclude the landlord from getting the writ of ejectmentagainst the tenant executed. This brings into play the other remedyavailable to the aggrieved tenant to canvass the order of execution ofthe writ. That is, to move the Court of Appeal in revision (section 753)as expeditiously as possible and obtain a stay order having satisfiedthe Court of Appeal on an ex parte application. The order to stayexecution of the writ, could be granted by the Court of Appeal to beeffective until the landlord is heard in opposition or until the matter isdisposed of by court finally. This legal mechanism, understandably;demands ,-the most diligent and swift attention on the part of theattorney-at-law for the tenant, who is professionally obliged to do hisbest at all times to safeguard the interests of his client. The foregoinggeneral observations demonstrate the practical necessity of twoapplications being made – one of revision and the other seekingleave to appeal made to the Court of Appeal by the aggrieved tenant.We cannot turn a blind eye to these realities.
The revision application was filed on 25.3.87 and supported on26.3.87; the leave to appeal application was filed on 31.3.87 and wassupported on 6.5.87. The Court of Appeal issued notice on therespondent in both applications. Neither application of the appellantscontained the order of the learned Additional District Judge givingreasons for his determination to execute the writ. That is preciselywhat led .the Court of Appeal to reject both applications in limine onobjection being taken on behalf or the respondent that there wasnon-compliance by the appellants of Rule 46 of the Supreme Court(Appeal). Rules of 1978.
In both applications among other grounds, the appellantsalleged:- 1
1.that the learned Additional District Judge had not delivered hisreasons-for the said order but had merely made order for execution ofthe writ in the Journal entry; (emphasis added); and
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that the learned Additional District Judge had not ordered theplaintiff respondent to deposit any security as required by section763 of the Civil Procedure Code.
The appellants produced with the petitions a certified copy of thejournal entry of the case record obtained on 24.3.87, containing thesignature of the Registrar of the District Court of Kandy dated 24.3.87and bearing the seal of the Court indicating the same date. Therelevant journal entry (as translated), according to the certified copymarked G, reads as follows:
’[82] 87.3.24
Order
Plaintiffpresent.
1st Defendant present.
2nd Defendant absent.
(Vide proceedings)
I order execution of the decree.
Signed
A.D.J.”
When the revision application was supported in the Court ofAppeal on 26.3.87, learned counsel for the appellants brought to thenotice of court, that reasons for the Additional District Judge’s orderto execute writ was not available. The relevant portion of the ordermade by the Court of Appeal on 26.3.87 reads as follows:-
“Court has heard submissions of counsel for the petitioners.Mr. Choksy P.C., wishes it to be recorded that up to yesterdayafternoon no reasons have been given by the learned DistrictJudge for his order issuing writ of execution. Mr. Choksy furtherstates that on 25th March ‘87 the learned District Judge hadordered the plaintiff to deposit a sum of Rs. 10,000 as security".
The Court of Appeal ordered notice to be issued on the respondentand further directed that the writ of execution be stayed until 5.5.87on the appellants depositing a sum of Rs. 50,000 in the District Courtof Kandy.
Subsequently on 8.9.87, an affidavit of the registered attorney-at-law on record in the District Court of Kandy, N. W. Jayawardene,
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affirmed on 2.9.87, was filed in the revision application, the importantaverments of which are as follows:-
’2I am the instructing Attorney for the defendant-petitionersabovenamed in D.C. Kandy case No. 1426/RE and depose to thefacts hereinafter set forth out of my personal knowledge.
I have perused the record in D.C. Kandy case No. 1426/RE on24th and 25th March 1987. The record was in the custody of theRegistrar of the District Court of Kandy. On 24th March 1987 the1st defendant petitioner S. Paramanathan was with me at the timeI looked into the record.
I did not find any written reasons for the order issuing writ ofexecution in this case when I perused the said record on the datesstated above. There was the journal entry of 24th March 1987, acertified copy of which was obtained on 24th March 1987 itself,and this certified copy is filed in these proceedings before yourlordships court as (G).
When I perused the record on 25th March 1987, there was afurther order directing the plaintiff-respondent abovenamed todeposit Rs. 10,000 as security.
I informed counsel appearing for my client of the aforesaid, on25th March 1987 as my clients' application to your Lordships'Court was to be supported before Your Lordships Court on 26thMarch 1987."
The respondent filed his objections for the two applications madebylhe appellants, appending to them certified copies of the DistrictCourt proceedings in the writ application, including the journal entriesand the reasons given by the learned Additional District Judgedated 24.3.87. This certified copy issued under the hand of theRegistrar of the District Court of Kandy, bears the date 24.4.87. Inth£se certified copies the journal entry of 24.3.87 (as translated)reads as follows:-
(82) 87.3.24
Order
Plaintiff present.
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1st Defendant present.
2nd Defendant absent.
(Vide Proceedings)
I order execution of the decree.
Signed
A.D.J."
“Laterl order the plaintiff to depositRs. 10,000. Rs. 10,000 in cash assecurity.
Signed'
A.D.J."
The difference between the journal entry No. 82 in the certifiedcopy issued on 24.3.87 and that issued on 24.4.87 is significant; andit does support the version of the attorney-at-law for the appellants tosome extent. The respondent produced a letter from the Registrar ofthe District Court of Kandy dated 3rd February 1988, addressed tothe attorney-at-law for the respondent, sent by way of a reply to hisletter dated 1st February 1988. According to this letter, the Registrarhad perused the register maintained in the record-room of that courtfor issue of records for reference to attorneys and their clerks, for theperiod 1.3.87-31.3.87, and found that no application had been madeby any attorney or a clerk to obtain the record in case No. 1426/RE,for reference, on the 24th or 25th of March 1987, This letter does notdisprove that the attorney-at-law for the appellants did peruse therecord which was in the custody of the Registrar on the 24th and25th. Nor does it disprove that the attorney-at-law for the appellantsdid obtain a certified copy of the journal entries on 24.3.87, As amatter of fact, we have before us the journal entries issued by theregistrar on 24.3.87.
It is common ground that the journal entry of 24.3.87 states “videproceedings" but the question is whether those proceedings namelythe reasons given by the learned Additional District Judge hadreached the record on 24.3.87; or when it did reach the record. Itmay not have reached the record for several reasons; it may havebeen misplaced or the learned Additional District Judge may haveremoved it to correct typing mistakes. We need not enter into any
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speculation about that, and it is established as a fact that the reasonswere not in the record either on the 24th or the 25th. I am unable toagree with the submission of learned counsel for the respondent thatthe attorney-at-law or the appellants have attempted to “contradictthe record". If the order given by the learned Additional DistrictJudge was there in the record on 24.3.87, there is no reason for theattorney-at-law Jayawardene for not obtaining a copy of that order forthe purpose of submitting the same to the Court of Appeal. Neitherhe nor the appellants stand to gain anything by falsely denying theexistence of that order in the record on 24.3.87 if in fact it was there. Ican find no trace of wilful non-disclosure, deception or negligence onthe part of the attorney-at-law for the appellants.
On this crucial question, the Court of Appeal came to the followingimportant finding which cannot be faulted; “Thus it is beyond doubtthat the order X must in this case be accepted as an order made bythe judge on 24.3.87, but had not reached the record whendocument G was taken”. The order must reach the record for actionto be taken expeditiously to safeguard the interests of the appellantsby their attorney-at-law. I can find no positive proof, nor did the Courtof appeal find, as to when that order reached the record. In thesecircumstances, I am of the view, that to hold that there was non-compliance with Rule 46 of the Supreme Court (Appeal) Rules of1978 by the appellants would be to ignore the principle lex non cogitad impossibilia. See Kiriwanthe and Another v. Navaratne andAnother (supra).
The respondent filed the order of the learned Additional DistrictJudge specifically averring that it was “not meant to supplement theomission made” by the appellants. The appellants do not deny thatthe order of the judge found its way into the record sometime after25.3.87. The Court of Appeal appears to have misunderstood thisadmission as an attempt on the part of the appellants to retract fromtheir original position which they had pleaded. The purpose of therequirement of the appellants filing that document (which came to therecord subsequently) had been satisfied and the Court of Appealwas in full possession of the necessary material to do justice betweenthe parties. Any other view of the matter would be highly technicaland artificial.
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For the above reasons, I set aside the judgment of the Court ofAppeal delivered on 19.2.88 and further direct the Court of Appeal totake up the two applications C.A. 383/87 and C.A. 48/87 together (aswas done earlier) and to hear and determine them on their merits.The stay order issued by this court on 2.9.88 will remain in force untilthe two applications are finally disposed of by the Court of Appeal.
The appellants will be entitled to a sum of Rs. 2500 from therespondent as costs of this appeal.
AMERASINGHE, J. -1 agree.
WADUGODAPITIYA, J. -1 agree
Appeal allowed.
Further steps ordered.