058-SLLR-SLLR-2003-V-3-PERERA-v.-HALPITA.pdf
CA
Tilakaratne v Jayatilaka and others (Somawansa, J.)
321
PERERAv
HALPITACOURT. OF APPEAL
AMARATUNGA, J.
ABEYRATNE, J.
CA 1172/2002
D.C. MT. LAVINIA 495/99/98
Civil Procedure Code – Exparte Decree – Writ executed – Premises demol-ished – Application to have exparte decree set aside and an order to restore
possession – Can he be restored?
Held:
When the subject matter of the tenancy Agreement is demolished orcease to exist, the tenancy comes to an end. In such a situation thetenant cannot be restored to possession as the subject matter is nolonger in existence.
AN APPLICATION in Revision from the order of the District Court of Mt.
Lavinia.
322
Sri Lanka Law Reports
[2003] 3 Sri L.R
Case referred to:
Abeysinghe v Abeysekera – 1995 2 Sri LR 104
Daya Gurvge for plaintiff-petitioner.Defendent-respondent absent and unrepresented.
Cur. adv. vult
September 3, 2003GAMINI AMARATUNGA, J.
This' is an application to revise an order made by the. 01learned District Judge of Mt.Lavinia directing that the defendant-respondent be restored to possession of the premises fromwhich she has been ejected by the fiscal in execution of anexparte decree issued by Court. •
The plaintiff filed action in the District Court of Mt. Laviniato eject her tenant, the defendant, from premises No 13, NawalaRoad, Nugegoda and to recover damages. When summons wereissued to the fiscal, it was reported to Court that summons wereserved on the defendant. However, the defendant did not appear 10in Court on the summons returnable date. The plaintiff then filedan amended plaint and again summons were issued on thedefendant and the fiscal again reported that summons wereserved on the defendant. Thereafter an exparte trial was heldand the exparte decree was issued to the fiscal to be served onthe defendant. The fiscal reported that the decree was served onthe defendant but the latter did not appear to purge her default.Thereafter the writ was executed by the fiscal and the defendantwas ejected from the premises in question and possession wasdelivered to the plaintiff.20
The defendant thereafter made an application to Court tohave the exparte decree set aside and to get an order restoringpossession of the property to her. Her position was that sum-mons and the exparte decree were not served on her. The Courtheld an inquiry into this application and at the conclusion of theinquiry held that there was no proper service of summons. In
323
qaPerera v Halpita (Amaratunga, J.)
view of this finding the Court set aside the exparte decree anddirected that the defendant be restored to possession of the
property from which she was ejected in execution of the decree.This revision application is against that order.
At the inquiry before the learned District Judge, the plain-tiff’s position was that after delivery of possession of the premis-es in question to her the building was demolished and the bareland was thereafter sold to a third party and that there was nopremises to which the defendant could be. restored. However thelearned District Judge held that as the procedure adopted waswholly irregular the defendant should be restored to possession.At the inquiry the plaintiff has produced a letter from the GramaSeva Niladari to the effect that at No 13, Nawala Road,
Nugegoda there was no building but only a bare land. This letterhas been countersigned by the Divisional Secretary. •
The question to be decided in this application is whetherthe learned Judge’s order to restore possession of premises No13 to the defendant was correct. When the subject matter of atenancy agreement is demolished or ceased to exist the tenancycomes to an end. In such a situation the tenant cannot berestored to possession as the subject matter of the tenancy is nolonger in existence. Vide Abeysinghe v AbeysekeraW In such asituation, the remedy of the defendant, if at all, is an action fordamages. Acting in revision I therefore set aside that part of thelearned Judges order directing that the defendant be restored tothe possession of the building situated in premises No 13,Nawala Road, Nugegoda. Since a tenant cannot be restored topossession of a premises where there is no building the order forrestoration of the defendant to premises No 13 is quashed.Since the defendant – respondent did not appear at the stage ofhearing of this application I make no order for costs.
ABEYRATNA, J.I agree.
Application allowed
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