RASHEED ALI v. MOHAMED ALI AND OTHERS

003-SLLR-SLLR-1981-2-RASHEED-ALI-v.-MOHAMED-ALI-AND-OTHERS.pdf


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Rasheed AH v. Mohammed AH
29
RASHEED ALI
v.MOHAMED ALI AND OTHERS
COURT OF APPEAL.
SOZA. J. AND L. H. DE ALWIS, J.
C. A. APPLICATION No. 997/80-D. C. COLOMBO 3290/ZL.DECEMBER 8.9.1980.
Civil Procedure Code, Chapter XXII, sections 325 to 329—execution proceedings—Resistance or obstruction—Delivery of constructive possession—Whether claim of personresisting frivolous or vexatious.
Revision—Application to revise order of District Court in executionproceedings—Preliminary objection that revision did not lie—In what circumstances isthe claimant entitled to relief by way of revision.
Supreme Court Rules, 1978, Rule 46— Requirement that documents material to the casebe filed—Whether Imperative—effect of noncemplisnee.
One M purchased the premises in suit on 22.2.1979 and thereafter instituted avindicatory action against his vendor in which he also sought an order or ejectment oithe vendor and “all those holding under him" and the recovery of damages. At the trialin December. 1979, the vendor (defendant) consented to judgment without costs anddamages. Writ of ejectment was thereafter issued on M’s application. However, theFiscal was able only to deliver constructive possession as R the present petitioner whowas in occupation of the main portion of the premises resisted n-cctrr.r.nt claiming tooccupy the same on an agreement entered into by him with one S. After the Fiscalreported the facts to Court there were proceedings under section 325 of the CivilProcedure Code. The petitioner's claim at the inquiry was twofold, namely, that he wasdirectly a tenant of the vendor who was the defendant in the main action and thereforeentitled to the protection of the Rent Act and alternatively that he was a sub-tenant,being the tenant ot 4' -who had himself been a tenant under the vendor. The learnedDistrict Judge after inquiry rejected the version of the petitioner and his findings showedthat he had treated the claim as one which was vexatious and frivolous and not madehona fide, and accordingly the respondent was entitled to be put in possession.
The petitioner filed papers in the Court of Appeal to revise this order. Two preliminaryobjections were taken in the Court of Appeal on behalf of the respondents whichwere also argued along with the main case on the facts. These objections were that thepetition must fail for non-compliance with Rule 46 of the Supreme Court Rules, 1978,and that an application for revision would not lie in the circumstances of the presentcase.
Held
On the facts the claims of the petitioner must fail. After constructive delivery hadbeen given to the respondent (judgment-creditor) the claims of both the petitioner and
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the judgment-creditor had been investigated and order made by the learned DistrictJudge as provided for in the Civil Procedure Code. An examination of the facts showedthat the petitioner's claim to be a tenant under the vendor could not be maintained andmust be regarded as frivolous or vexatious and not made bona fide. His claim that he wasa tenant of S which claim was based on a deed marked "A4" was, as a consideration ofthis deed together with the facts of the case showed, equally untenable, and the learneddistrict Judge rightly rejected this claim also. Accordingly the petition must fail.
The provisions of Rule 46 of the Supreme Court Rules, 1978, are imperative andshould be complied with by a party who seeks to invoke the revisionary powers of theCourt of Appeal. This is subject, of course, to the proviso that where a matter of greaturgency arises and a party has no time to obtain the documents required by the Rule,the Court would extend such indulgence as was necessary in order to enable a petitionerto make compliance subsequent to the filing of the petition. In a case wherecircumstances beyond the petitioner's control prevent compliance in this manner, thepetitioner should comply with the Rulo as soon as possible. In the circumstances ofthe present case, the petitioner failed to comply with the Rule at the time he filed hispetition and even though he could be excused for non-compliance because of theurgency of his application he had made no efforts since then to comply with the Rule.The preliminary objection was therefore entitled to succeed.
The powers of revision conferred on the Court of Appeal ere very wide unri the Courthas the discretion to exercise them whether an appeal lies or not or whether an appeal hadbeen taken or not. However, this discretionary remedy can be invoked only where thereare "exceptional circumstances" warranting the intervention of the Court. Although theCourts have not attempted to define the expression "exceptional circumstances'*the authorities show the guide lines which had been laid down and applying tnese therewas here a case for intervention by way of revision in the interests of justice, particularlyas the original Court had already ordered the respondent to be restored to possession andthere was every likelihood that the order would be carried on* before the petitionercould appeal and obtain stay of execution of the order complained of and this wouldmake the ultimate decision, if it went in favour of the petitioner, nugatory.However, the petitioner in the present care had not made a full disclosure of all materialfacts as a person who invokes a discretionary remedy such as revision was bound to do;and the Court would not extend relief to such a party.
Cases referred to
Navaratnasingham v. Arumugam and another, (1980) 2 Sri L. ft. 1.
Atukorale v. Samynathan. (1939) 41 N.L.Ft. 165; 14 C.L.W. 109.
Silva v. Silva, (1943) 44 N.L.R. 494;26 C.L.W. 3.
Fernando v. Fernando, (1969) 72 N.L.R. 549.
Rustom v. Hapangama & Co., (1978-79) 2 Sri L.R. 225.
Alima Natchiar v. Marikar, (1949) 47 N.L.R. 81.
Lebbaythamby v. The Attorney General, (1964) 70 C.L.W. 53.
Suranimala v. Grace Parent, (1964) 67 C.L.W. 37.
Ranasinghe v. Henry, (1896) 1 N.L.R. 303.
Sinnathangam v. Meeramohaideen, (1958) 60 N.L.R. 394.
In the matter of the insolvency of Hayman Thornhill. (1895) 2 N.L.R. 105.(12! Sabapathy v. Dunlop, (1935) 37 N.I.. ft. 113.
(131 Fernando v. Abdul Rahaman, (1951) 52 N.L.R. 462.
(14) Ibrahim Saibo v. Mansoor, (1953) 54 N.L.R. 217.
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Rasheed Ali v. Mohammed AH (Soza. J.)
31
APPLICATION to revise an order of the District Court, Colombo.
C. Thiagalingam, Q.C., with SI Mahenthiran and A. Gnanathasan, for the petitioner.
H. W. Jayewardene, O.C.. with N. S. A. Goonetilleke and N. Mahendra, for the 1strespondent.
January 30 1981.
SOZA, J.
Cur. adv. wit.
This is an application for revision made by the petitioner MohamedHan if fa Rasheed Ali inviting the Court to revise the order made bythe learned District Judge of Colombo on 1.8.1980 whereby herejected the claim of the petitioner to remain in possession ofpremises No. 19, Galle Road, Bambalapitiya as a tenant or as asub-tenant. The facts leading to the present application may bestated as follows: One Khan Mohamed Ali bought the premises insuit from one L. W. R. P. Marshal on deed No. 2208 of 22.2.1979.Khan Mohamed Ali instituted vindicatory suit bearing No.3290{ZL)in the District Court of Colombo against L. W. R. P. Marshal for adeclaration of title to the premises in dispute in the presentproceedings and for an order of ejectment of Marshal and "allthose holding under him" and for the recovery of damages. Thiscase came up for hearing on 19.12.1979. Marshal consented tojudgment without costs and damages and decree was enteredaccordingly declaring Khan Mohamed Ali entitled to the saidpremises and ordering the ejectment of Marshal and all thoseholding under him. On the application of Khan Mohamed Alithe Court ordered writ to issue. The Fiscal was able to make oniyconstructive delivery of possession to Khan Mohamed Ali becauseMohamed Haniffa Rasheed Ali the present petitioner claimed tooccupy the premises on the basis of an agreement entered intobetween himself and one Sangaralingam Muthusamy on deedNo. 182 of 27.8.1978 marked A4. There was also a gramsellerone M. Muthulingam occupying a portion of the premises. Heclaimed to be there having obtained the permission of
S.Muthusamy to carry on the business of selling gram on a writingdated 28.7.73. There was a case bearing No. 812/M pending againstMuthulingam which had been instituted by Muthusamy. TheFiscal reported these facts to Court and thereafter the proceedingswhich culminated in the order in favour of Khan Mohamed Alisought to be revised in the present application before us wereinitiated under the sections of the Civil Procedure Code dealingwith resistance to execution of proprietory decrees. Thepetitioner Mohamed Haniffa Rasheed Ali has named Khan
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Mohamed Ali as the 1st respondent, L. W. R. P. Marshal as the2nd respondent and M. Muthulingam as the 3rd respondent in hisapplication to this Court. This is the second hearing of thisapplication. Earlier the matter was argued before Wimalaratne, J.President of the Court of Appeal and Rodrigo, J. on 1.10.1980and judgment was reserved. But before the judgment could bedelivered Wimalaratne, J. was elevated to the Supreme Court andthis necessitated a hearing de novo before us of this case.
It was submitted by way of preliminary objection that thepresent petition should be dismissed as the petitioner has failed tocomply with Rule 46 of the Supreme Court Rulesof 1978 publishedin Gazette Extraordinary No. 9/10 of 8.11.1978. By virtue of thisrule an application for revision should be made by way of petitionand affidavit and should be accompanied by originals of documentsmaterial to the case or duly certified copies thereof in the form ofexhibits and also two sets of copies of the proceedings in theCourt of first instance. In the case of Navaratnasingham v.Arumugam and another (1)1 held that the provisions ot Rule 46are imperative and should be complied with by a party who seeksto invoke the revisionary powers of this Court. I would merely liketo add that what I said in that judgment should be read subjectto the principle that the law does not expect a person to do whatis impossible. There may be occasions when matters of greaturgency arise where a party has to seek the revisionary powers ofthis Court but is left with no time to obtain the documents asrequired by Rule 46. On such an occasion the Court no doubt willtake a reasonable view of the matter and extend such indulgenceas is necessary to enable a petitioner to comply with therequirements, subsequent to the filing of the petition. But itshould be remembered that a petitioner who is asking this Courtto act in revision is not exempted from complying with Rule 46.If circumstances beyond his control prevent his complying withthe rule at the moment of filing the application he should yetcomply with it as soon as possible. There is provision in the rulesfor amendment of the petition or tender of additional papers withpermission of Court to which a petitioner can resort so as tocomply with Rule 46—see Rules 50, 51 and 54. Where the rulesare not complied with the Registrar of the Court is obliged withoutany delay to list the application for an order of Court-see Rule59. In the instant case the petitioner failed to comply withRule 46 at the time he originally filed his papers. For this failurehe can be excused because of the urgency of his application.
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Rasheed AH v. Mohammed Ali (Soza, J.)
33
But since then he has made no effort to comply with Rule 46.It is true the first respondent filed a statement annexing anumber of documents so as to present an adequate picture of thedispute between the parties. Yet this does not absolve thepetitioner from complying with Rule 46 as soon as it was possiblefor him to do so by moving for amendment of the petition ortender of additional documents. Instead as late as 19.11.1980 hetendered one document—a copy of a complaint to the Police(2R3)—without verification and without obtaining the permissionof Court and after the pinch of the argument was ascertained atthe earlier hearing concluded on 1.10.1980. Two documents—acertified copy of the Magistrate's Court case No. JMC 34213relating to the payment of Rs. 40,000 by the petitioner to thefirst respondent and the Certificate of Business Registration ofthe petitioner—remain yet to be presented. For these reasons thepreliminary objection is entitled to succeed.
I will now turn to the argument advanced on behalf of the 1strespondent that in the circumstances of the instant case anapplication for revision wili not lie. it is well established that thepowers of revision conferred on this Court are very wide and theCourt has the discretion to exercise them whether an appeal liesor not or whether an appeal where it lies has been taken or not.But this discretionary remedy can be invoked only where there areexceptional circumstances warranting the intervention of theCourt—see the cases of Atukorsie v. Samynothan (2), Silva v.Silva (3), Fernando v. Fernando (4) and the unreported case ofRustom v. Hapangams & Co. (5). In the absence of exceptionalcircumstances the mere fact that the trial Judge's order is wrongis not a ground for the exercise of the revisionary powers of thisCourt—see Alima Natchiar v. Marikar (6).
The Courts have not attempted to define the expression"exceptional circumstances". But there are guidelines laid downin the decided cases. Where an appeal wouid take time to come upfor hearing and the ensuing delay would render the ultimatedecision nugatory then that would be an exceptional circumstancecalling for the interference of the Court by way of revision(Athukorale v. Samynathan (supra) and Lebbaythamby v. TheAttorney-General (7)J In the case of Suranimala v. Grace Perera (8)the Court acted in revision despite the fact that an appeal wasavailable but was not taken as the circumstances called for aspeedier remedy than was available by way of appeal. Where the
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order of the trial Court is wrong ex facie it will be quashed by wayof revision even though *no appeal may lie against such order(Ranesinhe v. Henry (9) or the appeal was abated owing to atechnicality (Sinnathangam v. Meeramohaideen (10). Where theinterests of justice demand it the Court will not hesitate to act inrevision (In the matter of the Insolvency ofHayman Thornhill (11)and Sabapathy v. Dunlop (12)J
In the instant case were there exceptional circumstances callingfor the intervention of this Court by way of revision? If what thepetitioner complains of is justified this was a case for theintervention of this Court in the interests of justice. Further, theoriginal Court had already ordered that the judgment-creditor berestored to possession and there was every likelihood that theorder would be carried out with the least possible delay beforethe petitioner could appeal and obtain stay of execution of theorder complained of. This would make the ultimate decision, ifit went in favour of the petitioner, nugatory. In such exceptionalcircumstances an application for revision would always lie. But theapplication has to fail for non-compliance with Rule 46 referred toearlier.
Further, a person who invokes a discretionary remedy likerevision must make a full disclosure of all material facts. In theinstant case the petitioner has failed to place before this Courtavailable proof of the facts and circumstances of the disputeThe Court will not extend relief by way of revision to such aparty.
It was submitted that the action which the present 1st respondentbrought against the 2nd respondent was a collusive one designedto encompass the eviction of the petitioner and Muthulingam the3rd respondent. Marshall as he legally might sold the premises.He undertook to hand over vacant possession to the vendee andthis is one of his obligations cast upon him by the law. When aperson acts on the basis of his legal rights and duties howsoeverimmoral his action, he cannot be penalised. So far as Marshall the3rd respondent was concerned he had no defence to the actionand he was a wise man to have settled the case without costs anddamages. In these circumstances the decree entered in this case isnot open to attack on the ground of fraud or collusion.
I will now consider the legal principles which should guidethe Court in dealing with the situation that arose in the present
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Rasheed Ali v. Mohammed AH (Soza,J.)
35
case. The sections I would be referring to are those of the CivilProcedure Code incorporating the amendments up to the 31stDecember, 1977. Under section 325(1) of this Code where theFiscal is resisted or obstructed or where within one year and oneday after he has delivered possession the judgment-creditor ishindered or ousted by the judgment-debtor or any other personin taking complete and effectual possession, the judgment-creditorcan complain to Court by a petition in which the judgment-debtorand the person, if any, resisting or obstructing or hindering orousting shall be named respondents. Such petition must be filedwithin one month of the date of the resistance or obstruction orhindrance or ouster as the case may be. It should be observedthat in this section the statute speaks of resistance or obstructionto the Fiscal and aiso, where possession had been handed overbythe Fiscal, of hindrance to or ouster of the judgment-creditor.
On receiving a petition under section 325(1) the Court shalldirect the Fiscal to publish a notice announcing the compiaintthat has been made and calling upon all persons claiming to be inpossession of the whole, or any part of such property by virtueof any right or interest and who object to possession being deliveredto the judgment-creditor to notify their claims to Court withinfifteen days of the publication of the notice—vide section 325(2).Subsection (3) of section 325 spells out the manner in which theFiscal shall make the publication. Upon such publication beingmade, in addition to the persons already referred to, any personclaiming to be in possession of the whole of the property or partthereof as against the judgment-creditor can within fifteen daysof the publication of. the notice file a written statement of claimsetting out his right or interest entitling him to presentpossession—see section 325 (4). On inquiry into the matter of thepetition and of any claim that has been made, if the Court issatisfied:
(a) that the resistance, obstruction, hindrance or oustercomplained of was occasioned by the judgment-debtor orby some person at his instigation or on his behalf;
(b) that the resistance, obstruction, hindrance or oustercomplained of was occasioned by a person other than thejudgement-debtor and that the claim of such person to bein possession of the property whether on his own accountor on account of some person other than the judgment-debtor is frivolous or vexatious; or
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that the claim made if any has not been established;
the Court shall direct the judgment-creditor to be put into orrestored to possession of the property. In addition the Courtmay deal with the judgment-debtor or such other person as forcontempt of Court. It will be seen that under section 326(1)there is being observed a difference between the level of proofrequired in regard to resistance, obstruction, hindrance or ousteras contemplated under section 325 (1) and the level of proofrequired in regard to the claim of a person not involved in anyof these acts but who has merely made a claim under section325 (4). Where a person has made a claim under section 325 (4)the Court must be satisfied that the claim has not beenestablished. Where there has been resistance to or obstruction ofthe Fiscal or hindrance to or ouster of the judgment-creditor theCourt must be satisfied that the claim of the person guilty of suchresistance, obstruction, hindrance or ouster is frivolous orvexatious. Here it is also necessary to refer to section 327 whereagain the distinction earlier observed persists. Where the resistanceor obstruction or ouster (the word hindrance is omitted) is foundby the Court to have been occasioned by any person other thanthe judgment-debtor, claiming in good faith to be in possession ofthe whole of such property, on his own account or on account ofsome person other than the judgment-debtor by virtue of anyright or interest, or where the claim notified (obviously a claimunder section 325 (4)) is found by the Court to have been madeby a person claiming to be in possession of the whole of suchproperty on his own account or on account of some person otherthan the judgment-debtor, by virtue of any right or interest, theCourt shall make order dismissing the petition. It will be observedthat section 327 does not deal with hindrance of the judgment-creditor. So far as resistance or obstruction or ouster goes if it hasbeen occasioned by any person on his own account or on accountof some person other than the judgment-debtor claiming in goodfaith to be in possession of the whole of such property by virtueof any right or interest then the petition will be dismissed. So aclaim in good faith to a share of the property is not covered bythis section nor is hindrance to the judgment-creditor after he hasobtained possession. So far as claims under section 325 (4) go, ifthe claim is found by the Court to have been made by a personclaiming to be in possession of the whole of such property onhis own account or on account of some person other thanthe judgment-debtor by virtue of any right or interest the Court
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Radioed Ali v. Mohammed Ali (Soza, J.)
37
shall dismiss the petition. No good faith is necessary and the claimneed not be established. Such claimant need only show that he hassome right or interest and that to the whole of the property.On the other hand section 328 (2) makes provision for claimsbeing established to a share of the property. It will be observedtherefore that there are inconsistencies between the two sections326 and 327. The sections need amendment but that is a matterfor the Legislature.
Limiting the provisions to the question before us, we see thatif the resistance or obstruction to the Fiscal is frivolous orvexatious then section 326 stipulates that the judgment-creditorshall be put back into possession of the property. Or the Courtshould find that the resistance or obstruction has been made bythe petitioner acting in good faith on the basis of a claim to aright or interest in the whole of the property on his own accountor on account of some person other than the judgment-debtor.To reconcile the inconsistent statutory provisions one has toregard the expression frivolous or vexatious as the antonym ofgood faith. In the instant case the Court should be satisfied thatthe claims of the petitioner and the 3rd respondent are notfrivolous or vexatious or find that they have been made in goodfaith by virtue of some right or interest in the whole of theproperty and on their own account of a person other than thejudgment-debtor.
One requirement is that the claim should be made by a personon his own account or on account of some person other than thejudgment-debtor. That is the initial qualification that a personshould have to claim the protection offered by sections 326 and327.
Here I should observe that the petitioner claims he is not boundby the decree as he was not made a party to the case. No doubtthe petitioner could have been added before the trial under section18 of the Civil Procedure Code. This was one course of actionopen to the petitioner. As this was not done the petitioner is notbound by the decree (Fernando v. Abdul Rahaman (13)). In sucha situation the proper procedure for the Court to adopt is to directthe Fiscal to hand over constructive delivery of the premises to thejudgment-creditor and thereafter to' investigate the judgment-creditor's claim to complete and effectual possession in accordancewith the' provisions relating thereto of the Civil Procedure Code.
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(Ibrahim Saibo v. Mansoor (14)). This was substantially what wasdone in the instant case. The claims of the petitioner and thejudgment-creditor have been investigated and the order has beenmade as provided for in the Civil Procedure Code.
Now to get back to the facts it will be seen that the presentpetitioner has two strings to his bow. One is that he was directly atenant of the former owner Marshall, and therefore entitled to theprotection of the provisions of the Rent Restriction Act. Theother is that he was a tenant of one Sangaralingam Miithusamywho is not a party to the present proceedings but who it hastranspired in evidence was a tenant of the premises under theformer landlord. The petitioner's claim to be a subtenant hingeson deed No. 182 of 27.8.1978 marked A4. These two claims mustbe examined in order to ascertain whether the Court should besatisfied in these proceedings, that the claim of the petitioner isfrivolous or vexations or that his claim has been made in goodfaith by virtue of some right or interest in the whole of theproperty.
On the question whether the petitioner was a tenant under theformer owner L. W. R. P. Marshaii the evidence proceeds on twolines. The petitioner claims that he made a direct payment toMarshall of one month's rent in a sum of Rs. 750/-. The second isthat when he paid his rent to Muthusamy a portion of it wasmeant for Marshaii. The claim is that every month an amount ofRs. 1,350/- was paid to Muthusamy and of this sum Rs. 750/- wasto be appropriated by Muthusamy the tenant and the balanceRs. 600/- was to be chanelled through Muthusamy to Marshall.It should be observed that there is no documentary evidence ofeither of these claims, i.e., there is nothing to show that anymoney was channelled to Marshall from the amount the petitionerpaid to Muthusamy and there is nothing to show that the petitionerpaid Rs. 750/- on one occasion to Marshall on account of rent.The petitioner mentioned none of these matters as entitling himto remain in possession to the Fiscal when that official visited thepremises to execute the writ. The account books of the petitioneralthough listed have not been produced to prove any of theseclaims of payment. There is only the oral evidence of the petitionerhimself. It has been submitted that as no evidence to the contraryhas been placed before Court and this is a civil case the Court isobliged to accept the version of the petitioner. I agree with thegeneral proposition that ordinarily in a civil case where evidence
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Rasheed AH v. Mohammed AH (Soza, J.)
39
is placed on a certain point in issue by one party and there is noevidence contrary to that led by the opposite side, then the Courtwould act on the footing that the uncontradicted evidence hasbeen proved by a balance of probabilities. But this is not aninvariable rule. It cannot be used to oblige the Court to acceptevidence that is demonstrably or palpably false. No Court can beobliged to accept evidence that is false. It was submitted that infact the petitioner had given by way of advance to Marshall a sumof Rs. 40,000/- on an unwritten agreement and without any receiptto buy the property. There were Magistrate's Court proceedingsin respect of this which ended with the return of the money byMarshall to the petitioner. A copy of the proceedings of theMagistrate's Court has not been placed before us. The complaintwhich the present petitioner made to the police has been tenderedjust before the hearing of the present application before uscommenced. The learned District Judge who heard and saw thewitnesses was not prepared to accept the story of the petitionerthat he paid Rs. 750/- directly to Marshall on any occasion with aview to becoming Marshall's tenant. Indeed it would seem unlikelythat he made such a payment in view of the fact that he was tobuy the premises and had even paid the advance. Muthusamy diedon 1.3.1979 and therefore his evidence was unfortunately notavailable to the Court. In the light of the infirmities and short-comings in the evidence on the question of payment I cannot faultthe learned District Judge for disbelieving the petitioner's statementthat he paid Rs. 750/- to Marshaii directly or that of the sum ofRs. 1,350/- which he paid monthly to Muthusamy a sum ofRs. 600/- was meant to be channelled to Marshall. The versionof the petitioner that he was the tenant under the former ownerMarshall was rightly rejected by the learned District Judge. Thatclaim was obviously an afterthought and must be regarded asfrivolous or vexatious and not made bona fide.
The claim that the petitioner was a subtenant on the basis of aletting out by Muthusamy is equally untenable. This claim is basedon deed 182 of 27.8.1978 marked A4. This deed is a partnershipagreement for a period of three years operative from 1.11.1978.By this agreement Muthusamy handed over the management of ahotel of the name and styie of Dhawalagiri Hotel which was beingrun in these premises along with the stock-in-trade. In no part ofthis agreement is there any clause which says that thepremises are being sublet to the petitioner. Every item of thisagreement deals with the management of the business called
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Dhawalagiri Hotel. There is provision for payment of salaries andwages of the employees, electricity bills and water tax by thepresent petitioner. Muthusamy undertook to pay the rent Thepresent petitioner undertook not to sublet the premises and hehad to pay a sum of Rs. 45/- per day to Muthusamy. This was inrespect of the business. The responsibility for paying any rentwhether to Muthusamy or Marshall has not been cast on thepresent petitioner. Further, this agreement is in respect of abusiness called Dhawalagiri Hotel. It is conceded that the businessnow being run in these premises is that of a hotel under the nameand style of New Wappa Eating House. The position of thepetitioner, so far as the Court can ascertain it, is that he came inhere to run the business called Dhawalagiri Hotel in terms of apartnership agreement which he signed. The mutual obligations ofthe two partners are set out in the deed. The petitioner alteredthe name of the business to New Wappa Eating House. The claimthat petitioner was a subtenant based on this deed 132 of
was therefore rightly regarded as without anyfoundation. The findings of the learned District Judge show thathe has treated the claim of the present petitioner as vexatious andfrivolous and not made bona fide. On the facts the petition mustfail and must be dismissed. The position of the third respondentstands in far worse light than that of the petitioner. Accordinglythe judgment-creditor i.e., the present 1st respondent must be putback into possession and the claims of the petitioner and the 3rdrespondent dismissed. I make order accordingly. The order of thelearned District Judge is affirmed. The application is dismissedwith costs.
L. H. De ALWIS, J.—I agree.Application dismissed.