004-NLR-NLR-V-60-S.-P.-K.-KADER-MOHIDEEN-CO.-LTD.-Appellant-and-S.-N.-NAGOOR-GANY-Respond.pdf
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Kader Mohideen <f> Co., Ltd. v. Nagoor Gang
'1958Present: Sinnetamby, J.•S. P. K. KADER MOHIDEEN & CO., LTD., Appellant, and S.-N.NAGOOR GANY, RespondentS. C. 73—0. R. Colombo, 45,586
.Bent Restriction Act, No. 29 of 1948—Section 13 (o)—"Reasonable requirement”—.
Power of Court to consider events that occur subsequent to date of institution of
action—Power of Court to delay execution of judgment.
Where a landlord seeks to eject his tenant on the ground that the premiseslet are reasonably required for his own use and occupation, in terms of section13 (c) of the Bent Kestriction Act, the Court cannot take into considerationevents that oocur subsequent to the date of the institution of the action.Accordingly, the Court cannot take into consideration the fact that, after the■ date of the institution of the action, the plaintiff’s landlord has, in anotheraction, obtained writ of ejectment against the plaintiff entitling the plaintiff’slandlord to eject the plaintiff from the promises- of which the plaintiff istenant.
Ismail v. Herft (1948) 50 N. L. R. 112, not followed.
Obiter : A Court of first instance has no power to stay for any stated periodithe execution of judgment, except with the consent of the parties.
SINNETAJMBY, J.—Kader Mohideen <b Cq/Ltd, v. Ndgoor Qany 17
A
iXPPEAL from a judgment of the Court of Requests, Colombo.
Sir Lolita Rajapakse, Q.G., with N. G. J. Rustomjee and D. G. W►Wickremasetcera, for Defendant-Appellant.
H. W. Jayewardene, Q.C., with A. Devarajah and C. P. Fernando, forPlaintiff-Respondent.
Cur. adv. vult.
July 23, 1958. SlNNETAMBY, J.—
The plaintiff instituted the present action against the defendant forejectment from premises No. 152, Old Moor Street, of which the defendanthad been in occupation for a period of about 13 years. The plaintiffwas a recent purchaser. The premises in suit were used as a store andthe plaintiff who occupies premises No. 158, Old Moor Street, with afamily of 27 persons desired to move into No. 152, Old Moor Street, withhis family. The main issue on which the parties went to trial waswhether the premises in suit were reasonably required by the plaintiff"as a residence for himself and the members of his family. The learnedCommissioner has answered the issue in the affirmative and, in doing so,was much influenced by the fact that in C. R. Case No. 52,424 the plain-tiff’s landlord Jamal had obtained writ of ejectment against the plaintiffentitling Jamal to eject the plaintiff from premises No. 158 on the 30thNovember, 1956. The appeal is against this decision.
The present action was instituted by a plaint dated 11/5/53 which wasfiled and accepted by Court on the 22nd May, 1953. The C. R. CaseNo. 52,424 was filed thereafter by a plaint dated 2/6/54. Decree in thatcase was entered against the present plaintiff on 6/12/54. The questionthat immediately arises is whether in dealing with the main issue on whichthe parties went to trial the Commissioner was entitled to consider theeffect of the decree in C. R. Case No. 52,424. It is impossible to statewhat view the learned Commissioner would have taken upon the issueframed but for the evidence led in regard to this decree.
Learned Counsel for the respondent submitted that it was well withinthe powers of the learned Commissioner to consider facts that came intoexistence after the institution of the action and in support of his contentionrelied upon the case of Ismail v. Herft1. That was an action institutedwhen the now repealed Rent Restriction Ordinance of 1942 was inoperation. Section 8 (c) of the repealed Ordinance is in identical termsas section 13 (1) (c) of the Act now in force, namely, the Rent RestrictionAct No. 29 of 1948. The facts of that case were as follows : the plaintiffhad successfully obtained a decree for ejectment against the defendanton the ground that the premises in question in that case were reasonablyrequired for the use and occupation as a residence for the plaintiff andhis family. After decree was entered and after the appeal was lodgedby the defendant the plaintiff died leaving his widow and four children.His executor was duly substituted. The learned Appeal Judge took the
1 (1948) SON. L. R. 112.
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SINNETAMBY, J.—Kader Mohideen <k Co., Ltd. v. Nagoor Cfany
view that the untimely death of the plaintiff before the issue of the writresulted in the “ ground being entirely cut from beneath the feet of theplaintiff’s case Dealing with the right of the plaintiff to occupy thepremises the learned Judge observed :
“ Until he had actually entered into occupation of the premiseswhich he never did, this was not a right which would be transmissibleto his heirs or successors, being personal to himself and founded on hispersonal requirements. It is certainly not a right which enuresfor his executor, for his executor’s requirements as to residence are notthe plaintiff’s. Nor can the learned Commissioner’s judgment beconstrued as holding that the premises were proved to be reasonablyrequired as a residence for the plaintiff’s family, apart from the plaintiffhimself. The plaint did not allege this (the words are “ for the plaintiffand his family ”) and the Commissioner’s judgment made two thingsquite clear. First, as I have already said, the respective needs of theplaintiff and of the defendant for the premises were considered to beabout equally balanced, so that the fact of the plaintiff’s being thelandlord had to be brought in to tip the scale in his favour. ”
'The learned Judge went on to hold that the time at which the conditionsset out in section 8 (c) must be shown to exist is the time when the Courtis required to make the ejectment order ; and, in cases where there is an-appeal, when the Appeal Court delivers its order. On this footing the-appeal was allowed as, in the opinion of the learned Appeal Judge, in thealtered circumstances the premises could not be regarded as reasonablyrequired for the plaintiff and his family. With this view of the learnedAppeal Judge, with all respect, I find myself in total disagreement.
. Prior to the enacting of the Rent Restriction Ordinance, under our-common law, a landlord was entitled to terminate the contract of tenancyby a valid notice to quit. Once notice was admitted or established the■ tenant had no defence and was obliged to leave. But with the introduc-tion of the Rent Restriction Ordinance a curb was placed on the landlord’s-common law rights and he was debarred from instituting an action inejectment and the Court was prevented from entertaining it unless theAssessment Board had in writing authorised the institution of the action.It is thus manifest that without such authorisation the action cannot beinstituted. Then comes the proviso which dispenses with the authorisa-tion of the Board if the stipulations embodied in (a), (b), (e) and (a)-or any one of them are fulfilled. The conditions enumerated in theseclauses must, like the authorisation of the Board, be in existence beforethe action is instituted. That is the view that our Courts have consistentlytaken in the interpretation of section 8 of the Ordinance No. 60 of 1942and of section 13 of the Rent Restriction Act No. 29 of 1948. Indeed,at one time it was an open question as to whether the Court could embarkupon the adjudication of the common law rights of the parties to terminatethe contract of tenancy without first holding a preliminary inquiry andsatisfying itself that one or more of the conditions imposed by section 8of the Ordinance exist. It is only if the Court was so satisfied, it wassuggested, that the Court had jurisdiction to adjudicate on the main
SINNETAMBY, J.—Kader Mohidem de Co., Ltd. v. Nagoor Gang 1S>
•question relating to the termination of the tenancy. This matterhowever, was laid at rest by a Divisional Court decision in Maroof v
Leaff1.
Section 13 (1) of the Bent Restriction Act is in the following terms :—
“ Notwithstanding anything in any other law, no action or proceed’ings for the ejectment of the tenant of any premises to which this Actapplies shall be instituted in or entertained by any Court, unless theBoard, on the application of the landlord, has in writing authorisedthe institution of such action or proceedings :
Provided, however, that the authorisation of the Board shall notbe necessary, and no application for such authorisation may be•entertained by the Board, in any case where—
rent has been in arrears for one month after it has becomedue; or
the tenant has given notice to quit; or
the premises are, in the opinion of the Court, reasonably
required for occupation as a residence for the landlord or anymember of the family of the landlord, or for the purposesof the trade, business, profession, vocation or employment ofthe landlord; or
. . .
The plain meaning of these provisions, it seems to me, is that a Courtis restrained or prevented from entertaining an action unless one at leastof the provisions of the proviso has been fulfilled. The Divisional Benchdecision, already referred to, declared that the Court may decide thisquestion in the same action itself and it is not necessary that there shouldfirst be a preliminary inquiry in regard to it. If the conditions referredto in the proviso or any one of them do not exist then the Court cannotproceed any further. In this view of the matter I fail to see how it ispossible to take into consideration events subsequent to the institutionof the action to decide the very point that has to be determined evenbefore the plaintiff’s action can be entertained. Quite apart from theconsideration of the provisions of section 13 of the Act or section 8 of theOrdinance there is the general principle of law that rights of parties mustbe determined as at the date of action—vide Silva v. Fernando (P. G.) ®.The Privy Council decision embodies a principle that has been consis-tently followed in our Courts from very early times. For instance,in Ponnamma v. Weerasuriya3 where the plaintiff in an action fordeclaration of title to a land obtained a Fiscal’s transfer upon which hebased his title nine days after the action was instituted although theFiscal’s sale was prior to the institution of that action it was held that theplaintiff had no title at the date of action and his action must fail. Inseveral cases where action was instituted by an assignee from the pur-chaser at a Fiscal’s sale for declaration of title to land and it was estab-lished that he had not obtained the Fiscal’s transfer at the date of
1 (1944) 46 N. L. R. 25.a (1912) 15 N. L. R. 499.
s (1908) 11 N. L. R. 217.
e
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VeChavanam v. Jtetnam
assignment but bad obtained it prior to tbe date of action it was heldthat he was entitled to succeed. Abubakker v. Kalu Ettena1 and
Selohamy v. Raphiel2.
If the trial Court in the present case had not taken into considerationthe existence of the decree in C. R. Case No. 52,424 it is not possible tosay that it would have come to the same conclusion in regard to thereasonable requirement of the premises by the plaintiff; nor is thisCourt in a position to do so. In the circumstances the only courso openis to send the case back for retrial before another Judge.
I observe in this case that the learned trial Judge after holding uponthe issues in favour of the plaintiff had directed that writ of ejectmentdo not issue till 30/11/56. I should like to observe, as I did in an earliercase, that a Court of first instance has no power to deny or delay a success-ful plaintiff from enjoying the fruits of his judgment except by consentof the parties. If upon the issues a trial Judge finds in favour of theplaintiff there is no provision in law which empowers him in his discretionto direct that writ of execution should not issue for any stated period.The power of a Court of Appeal to do this, however, has been recognisedand established in several cases that have come up in appeal and I wishto say no more about it.
I accordingly set aside the order of the learned Commissioner and sendthe case back for retrial before another Judge. The costs of appeal andof the abortive trial will be costs in the cause.
Order set aside.