Robert Silva v. Goonewardena and Another
GOONEWARDENA AND ANOTHER
COURT OF APPEAL.
WIJEYERATNE, J. AND EDUSSURIYA, J.
CA/LA NO. 200/91.
DC COLOMBO NO. 7478/RE.
NOVEMBER 08, 1991.
Landlord and Tenant – Ejectment on the ground of subletting – Mis-joinder – Application for Revision and Appeal in respect of same order.
There is no misjoinder in joining the subtenant with the tenant is a suitfor ejectment on the ground of subletting.
Where an Appellant had made an application for Revision in respect ofthe same order he has appealed from and the Revision application had beenconsidered on its merits, and dismissed, the appeal cannot be maintained.
Cases referred to:
Ibrahim Saibo v. Mansoor 54 NLR 271
Perera v. Sarath de Zoysa 1986 Colombo Appellate Law Reports Vol.
2 p. 256
APPLICATION for leave to appeal from the Order of the District Judge.
F. C. Perera for 1st defendant – appellant – petitioner.
No appearance for plaintiff – respondent.
No appearance for 2nd defendant – respondent.
November 15, 1991.
In this case the Plaintiff/Respondent had sued the 1stDefendant/Petitioner and the 2nd Defendant/Respondent for
Sri Lanka Law Reports
ejectment on the basis of the subletting of premises No. 87,Dharmapala Place, Welikada, Rajagiriya by the 1st Defen-dant/Petitioner to the 2nd Defendant/Respondent.
The 1st Defendant/Petitioner and the 2nd Defendant/Res-pondent had filed answer denying the subletting alleged in theplaint.
Though several issues had been framed at the commence-ment of the trial the Court had, at the request of the Counselfor the 1st Defendant/Petitioner decided to try the followingissues as preliminary issues of law:
Is there a misjoinder of parties and causes of action?
(a) If issue 5 is answered in the affirmative is the plain-
tiffs action illegal?
(b) Should the plaintiffs action be dismissed?
Accordingly both parties had tendered written submissionsafter which the learned Additional District Judge had madeorder dated 15th October 1991 answering the said issues infavour of the Plaintiff/Respondent.
The 1st Defendant/Petitioner now seeks leave of this Courtto appeal from the said order.
The Counsel for the 1st Defendant/Petitioner has con-tended that there is a misjoinder of parties and causes ofaction since the cause of action against the 1st Defendant/Pe-titioner is based on contract and the cause of action againstthe 2nd Defendant/Respondent is based on delict and thatsuch a joinder contravenes s. 5, s. 14 and s. 36 of the CivilProcedure Code.
Quite apart from these sections of the Civil ProcedureCode it appears to be settled law that a Plaintiff seeking theejectment of a tenant on the ground of subletting can sue thealleged sub-tenant for ejectment in the same action and is theview taken by a Bench of five judges in the ciase of IbrahimSaibo vs. Mansoor (1) which stated as follows:—
Robert Silva v. Goonewardena and Another (Edussuriya, J.)
"We have now dealt with two courses which a landlordcan adopt for the purpose of obtaining possession.First to join the sub-tenant in an action against thetenant and thereby obtain a decree for the ejectment ofboth. Secondly if he has sued the tenant without join-ing the sub-tenant he can obtain a subsequent order forejectment against him under section 327. A third courseis open to him. Where the landlord has sued the tenantwithout joining the sub-tenant he may sue the latter forejectment in a separate action.”
It was contended on behalf of the Petitioner that a sub-tenant should be added as a party after obtaining leave ofCourt. However the passage that I have referred to above,from the .judgment reported in 54 New Law Reports page 217does not support that contention. Further if the sub-tenant canbe added after obtaining leave of Court I cannot see any rea-son for not doing so at the very outset: s. 10 (5) of the RentAct provides for a decree of ejectment to be obtained againstboth the tenant and the sub-tenant in one action.
In any event this same matter came up before us by way ofan application for the Revision of the said order of the learnedAdditional District Judge and this Court after having consi-dered it made a full order dismissing the said application forRevision No. C.A. 959/91.
According to the judgement in the case of L. K. Perera vs.Tiki – riyadvra Sarath de Zoysa (2) where an Appellant hadmade an Application for Revision in respect of the same orderhe has appealed from and the Revision Application had beenconsidered on its merits and dismissed, the appeal cannot bemaintained.
Therefore this Court refuses this application for leave toappeal.
WIJEYARATNE, J. — I agree.