009-NLR-NLR-V-49-REZAN-Petitioner-and-RATNAYAKE-Respondent.pdf
SOERTSZ S.P. J.—Rezan v. Ratnayake.
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1947Present:Howard C.J. and SoertsS: S.P.J.
REZAN, Petitioner, and RATNAYAKE, Respondent.
<S. C. 341—In Revision C. R. Colombo, 98,589.
Revision—Amendment of decree—Events not contemplated by petitioner—Powerof Commissioner to amend decree—Restitutio in integrum— Civil ProcedureCode, sections 189 and 839.
Petitioner sued the respondent for ejectment from certain premises anddamages at Rs. 20 per month till the date of ejectment. Decree was entered inhis favour with the proviso that if the respondent paid Rs. 20 on the 10th of each -month he was to continue in occupation while the Rent Restriction Ordinancewas in force. At the time of the decree the standard rent of the premises wasRs. 20 per month and the Rent Restriction Ordinance was to cease on December31, 1946. Subsequent to the decree the operation of the Ordinance wasextended till December 31, 1947, and the authorised rent to Rs. 23 • 60. Thepetitioner applied to the Commissioner of Requests for amendment of thedecree but the Commissioner held that he had no power to amend it. Thepetitioner then moved the Supreme court in revision.
Held, that the petitioner was not entitled to relief by way oither of revisionor restitutio in integrum.
r£iHIS was a case referred to two Judges by Dias J.
M.1. M. Haniffa, for the petitioner.
B. Wikramanayake, for tho respondent.
Cur. adv. vult.
October 30, 1947. Soertsz S.P.J.—
This is an unfortunate case for the petitioner who asks us to exerciseour powers of Revision in respect of an order made b3’' the Commissionerof the Court of Requests, Colombo, on July 17, 1947, dismissing an appli-cation made to him by the petitioner for the amendment of a decreeentered on September 24, 1946.
The petitioner had sued his tenant, the respondent to this application,to have him ejected from the premises he held on a monthly tenancyfrom the petitioner on the ground that the respondent was causingdamage to these premises, and was conducting himself in relation theretoin a manner calculated to cause nuisance to the petitioner and to theoccupiers of the adjoining premises.
The petitioner also claimed damages till possession of the premiseswas restored to him.
In his answer, the respondent denied these averments and prayed forthe dismissal of the petitioner’s action. After trial, the Commissioner entered the following-decree : “ It is ordered and decreed that thedefendant be ejected from premises No. 433, Bambalapitiya South,in Colombo, bounded on the North by a part of premises No. 2 Ken-sington Gardens, South by premises No. 435, and West by Galle Road,and that the plaintiff be placed in quiet possession thereof. It is furtherordered and decreed that the defendant do pay to the plaintiff damagesat Rs. 20 per mensem from August 1, 1946, till the defendant is ejectedfrom the premises.
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SOERTSZ S.P.J.—Rezan v. Ratnayake.
“ And it is farther ordered and decreed that if defendant pays the^August and September damages before October 10, 1946, and thereaftereach month’s damages on the 10 of the following month as from November10, 1946, plaintiff having one month’s advance in his hands, defendantto continue in occupation of the premises while the Rent RestrictionOrdinance is in force. In default both writs to issue.
“ And it is farther ordered and decreed that costs be divided.”
At the time this decree was entered, the standard rent for these pre-mises was Rs. 20 a month, and the Rent Restriction Ordinance as itstood was due to cease to operate after December 31, 1946, subject,of course, to any legislative action. But after decree had been entered,the operation of the Ordinance was extended and, at present, standsentered till December 31, 1947, and the authorised rent the petitionerwould be entitled to is Rs. 23'50 a month.
The Commissioner, in the course of the order he made refusing the-application for amendment, made the following observation :“ At
the time I made order, I must confess, I did not take into considerationthe amendments to the Rent Restriction Ordinance, permitting thelandlord to collect rent an additional 10 per cent, of the authorised rent,and of the extension of the period of the Rent Restriction Ordinance.
I am of opinion that when I ordered Rs. 20 per month as damages,
I meant the authorised rent then prevailing at the time. It is onlyjust that ‘•he plaintiff-landlords should be entitled to a 10 per cent,increase ; but the question is, am I empowered to amend the decreemade inter partes, however just or reasonable it may be? Section 189provides for the amendment of the decree under certain circumstances.The present application does not come within any of these provisions.Although I feel that the plaintiff is entitled to an amendment of"the decree, yet in my opinion, I have no power to do so. The SupremeCourt alone has that power. The plaintiff’s remedy is bjr way of restitutioin integrum.
“ 1 dismiss the application, but I make no order as to the costs of thisinquiry.”
It seems clear that the Commissioner was right in this view that hehad no powers to amend the decree. Section 189 of the Civil ProcedureCode is exhaustive of the causes for which a decree may be amended,and this case does not fall within any of them. As things stood at thetime when the decree was entered, it was an intelligible and fair orderto make. Both parties appear to have been satisfied for neither partytook any steps to appeal against it. Subsequently events, however,defeated the anticipations entertained by the Commissioner and bythe parties, and I have not been able to discover a single case in whicheither here or, in pari materia, elsewhere a decree has ever been soughtto be amended for such a reason. Counsel for the petitioner also in-voked the assistance of section 839 of the Civil Procedure Code, butit is impossible to construe that section as giving us power to intervenein a case like this. We were, then, addressed to ask us to treat thisapplication as one for restitutio in integrum on the ground that subsequentevents had defeated what was the intention of the parties. But before-going on to consider the grounds on wlich restitutio in integrum is given-.
WJ..J JfiYE WAEDENE J.—-Ahamadu Levvai v. Sylvester.
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even if we assume that the intention of the Commissioner was as hehas stated it to have been, and that the petitioner’s hopes were as hedeclares them to have been we do not know and cannot say what therespondent understood the decreee to mean. It is possible that hesnatched a fearful joy from the decree as it was entered expecting or,at least, hoping that an extension of the operation by the RestrictionOrdinance, -will defer for him the evil day of ejectment. Besides, theusual grounds on which restitutio in integrum is granted are fraud, mis-take, and the discovery of fresh evidence, except in the case of minors.
In this case, clearly there was no fraud or discovery of evidence. Norwas there mistake in the sense in which that word is understood in sucha context as this. What happened was that the parties, or some ofthem, took for granted that events would turn out as they expected.If such a ground was admitted for granting relief by way of restitutio,it should be open, for instance, for parties affected by the most authori-tative judgments of this Court, to ask for relief on the ground that thePrivy Council had, in some subsequent case, taken a different view.
The petition must be dismissed with costs.
Howard C.J.—I agree.
Dismissed.