SILVA v. OBEYESEKERA

026-NLR-NLR-V-24-SILVA-v.-OBEYESEKERA.pdf


(97)
Present ; Bertram C.J. and Porter J.
* * * ■ > »
SILVA v. ' OBBYBSEKBB^L;
233—D. C. Negombo, 14)509.Lease of coconut estate—Negligent cultivation—Forfeiture—ts malignant
abuse necessary- for forfeiture—^Urban and rural tenements—
Framing of additional issues during the trial.
la every case it is a question for the Judge whether any particularabuse of the leased property may be more appropriately dealt withby damages only, or by cancellation of the lease.
Negligent cultivation may in any particular case, according tothe circumstances, be a ground for cancellation of a lease.
Voet’s observation that it would not be just to cancel .a lease,except on the ground of gross and malignant abuse, must be readwith the context in which it occurs, and with special reference toleases or urban tenements where, in. the nature df things, anyabuse entitling the lessor to cancellation would almost necessarilybe malignant.
It is a matter within – the discretion of the Judge whether he willallow fresh issues to be formulated after the case has commenced,but he should do so when such a course appears to be in the interestsof justice; and it is not a valid objection to such a course beingtaken that they do not arise on the pleadings.
T
HE ^plaintiff instituted this action against the defendant (a)for a cancellation of a lease on the ground of violation of
covenants in' the lease to uproot all the ' cinnamon bushes aroundand about the young coconut plants and to protect all the youngcoconut plants from cattfejL and (b) for Bs. 2,595 as damages inconsequence of the destruction'of the-plants.
The defendant-appellant* in his. answer denied that he hadviolated the covenants of the lease, or that he had caused anydamages to the plaintiff, and stated that this was a' dishonestattempt on the part of the plaintiff to- have the lease canceUed. as .the price of coconuts had risen and the- land became valuable.
The following issues were framed
(*.) Has the defendant in violation of the terms and conditionsof the lease—
Allowed cattle to destroy some of the coconut' plants in theleased premises ?.
Failed and' neglected to uproot the cinnamon bushes ?
(ii.) Has the defendant failed' and neglected to: take due audproper care of the leased premises ?
1928.
-(iii.) What damages, if any, is the plaintiff entitled to recove*from the defendant ?
(iv.) Was . the defendant bound to uproot the‘ cinnamon bushesas soon as he took possession of the leased premises ?
(▼.) Is the plaintiff entitled to have the lease cancelled ?
The District Judge (W. T. St ace, Esq.) delivered the followingjudgment —
The plaintiff leased to the defendant hi 1915 a coconut land of 69acres odd for a period of fifteen years. The defendant -agreed to – rootout the cinnamon on the land, tend the coconut plant&i keep them from,injury by cattle, and generally to care for the land. The plaintiffasserts that the defendant has generally neglected to cany out theseterms of the lease, that he has failed to uproot the cinnamon, hasallowed cattle to eat t-he young plantation, has allowed jungle to choke-and stunt the young, trees, and generally abused the land. He asksfor a cancellation of . the lease and damages at Bs. 2,595.
The case really turns upon the question whether 1 am to believeMr. Beven and Mr. G. Schrader on the one hand, or whether I am tobelieve Mr. C; L. de Zylva on the other. The former two gave evidencein support of the plaintiff; the latter, assisted by one Karunaratne, forthe defendant. These threegentlemen all claimto beindependent wit-
– nesses, who, as coconut experts, or at least, as coconut planters andvaluators of wide -experience, visited the land for- the purpose of thiscase, Mr. Beven visited it on September 27, 1920; Mr. Zylva onOctober 81, 1920; and Mr. Schrader on March, 8, 1921. The main pointsin their evidence are ap follows: —Mr. Beven says the young plantation' was choked with – jungle. That there were numerous vacancies,caused (it is-suggested by plaintiff) by- neglect of the lessee, that of the40 acres of cinnamon 'only about 10 acres had been uprooted, thatnumerous young coconut plants had been burnt and singed, and manymore eaten – by cattle.Hesaw many headofcattlewandering about
in the . estate. Mr. Schrader’s evidence is similar. When he went,- 6months after Mr. Beven, a good deal of cinnamon' had been uprooted,but about 15 acres'was still left, there were about six hundred vacancies,more;than half the young plants'had been eaten by cattle, and there wasjungle;'in the land. Mr. Zylva tells a different story. There was only alittle jungle, and they did not interfere with the plantation. There .weresigns of manuring, Mr. Schrader said there were no signs of manuring.The cinnamon had been systematically cat away in circles of about' 5 feetround the coconut trees (it is admitted that, if this is so, little or noharm would be causedto the coconuts). Not-asingleplant within the
estate had been eatenbycattle except twoorthreeaccidentally. near
the entrance gate. The vacancies were over 5 years old (so must have.existed when defendant took the lease, and are not attributable toneglect of the lease)
If only half the evidence of Messrs. .Beven and- Schrader were accepted,it would show scandalous neglect by the lessee, The latter himself.. gave evidence, and made a very poor impression which I will sum up bysaying that one could well believe him to’ be an incompetent and neglect-ful planter. On the question of how the vacancies were caused there isnot much evidence. Messrs. Beven and Schrader admitted' that it wasnot possible to: say positively bow old they, were, although Mr. Zylvamade no bones about declaring /them to be more than five years old.But on such evidence as there is, and in view of the general circum-stances of the case, it seems to me by far the most probable 'thing thatthey have been caused by-the lessee's neglect.
( )
The defendant has put forward as part of his defence the plea that 1988.the lease does not stipulate when the cinnamon was to be up uprooted.j~—r-
Seeing that the lease was for 16 years, I think it would be reasonable Obeue&ekerato read it as meaning that the uprooting should begin as soon as thelessee entered upon occupation, and should be completed at as early aperiod as reasonable. But even if this view is not taken, the other■damage by itself amounts, as is shown by the evidence of Messrs. Bevenand Schrader, to far more than the plaintiff has claimed. He appearsgreatly to have underclaimed.
Lastly, can the. lease be cancelled ? It. is clear that the damage doneto the estate is not of a. temporary character. Trees have been eatenby cattle and permanently set back. Others are stunted by neglect.
The whole estate will necessarily be worth mueb less at the end of thelease than it would have been, but for defendants .abuse of it. I think itis clear from the case of Per era v. Peris 1 that in such circumstances alease may. be rescinded. The defendant is not a fit person to be incharge of valuable lands.
I answer the issues—
(i.) (a) Yes.
<b) Yes.
(ii.) Yes.
(iii.) Damages claimed (at least).
(iv.) As soon as reasonable after taking possession.
(v.) Yes.
Bausa, K.C. (with him Samaraivickreme, R, L. Pereira, F. de Zoysa,
and Navaratnam), tor defendant, appellant.
*
H. J. C. Pereira,-K.C. (with him E. W. Jayawardene and Amara-sekera), for plaintiff, respondent.
October 9, 1922. Bebtbam C. J.—
This is an appeal against a judgment of the District Court of'Negombo. The action was brought for the forfeiture of a lease andfor damage caused to the lessor by breach of the covenants of thelease and by negligent cultivation. The learned Judge has foundthat the covenants of the lease were not observed, and that apartfrom the covenants the; lessee was guilty of gross negligence. in thecultivation of the property, a coconut estate.. He has found for theplaintiff. He has accordingly decreed a forfeiture of the lease andpayment of the damages claimed.
The question was primarily a question of fact. The learnedJudge heard two expert witnesses on one side and another expert'witness, together with various other witnesses, on the other. Hewas entitled to accept the expert evidence called for the .plaintiff,and there is undoubtedly ample evidence to support his conclusionthat the lessee was guilty of gross negligence. In rejecting theevidence of the expert witness called for the defence, the learned
1 {1912) IS N. L. ft. 313.
( 100 )
IMS. Judge took occasion to comment upon that evidence in very severe3^^ terms. I – cannot' help thinking that it would have been better ifCJ.the learned Judge, in rejecting the evidence, as he no doubt was
SaSTv. entitled to do, had expressed himself in a Usb impassioned andObegtMkera rhetorical manner. A judge may sometimes have occasion tocomment on evidence given before him, but it is generally best thathe should do so in measured terms. These judicial denunciationsremain on. record and. inflict a permanent stigma on the personaffected. The learned Judge’s iznpressions, derived from thebehaviour of the witness in the witness box, may of course be wellfounded, but it is always possible that he is mistaken. I shouldmyself have been more impressed by .the view of the learned Judgeilk this case, if he had seen ilis way personally to inspect the land inquestion and so to test, as far as it was possible to test, the evidenceof the witness!. It is not necessary, however, for us to express anopinion ; the learned Judge has weighed the two bodies of testimonyand has decided in favour of that adduced by the plaintiff, and theevidence, fepeaking generally, is of such a nature that we should notbe justified in revising his conclusions that there was negligentcultivation, and, indeed, cultivation which may be described asgrossly negligent.
' The principal question which arises in this case is a question oflaw, namely, the degree of misuser of an agricultural property- which would justify the Court in forfeiting the lease. The questionarises, not as it would normally arise under the English Law on anexpress- condition for forfeiture contained in. the lease, but upona supposed principle of the Roman-Dutch common law. I wasurged by Mr, Bawa that according to that principle a Court wouldnot forfeit a lease for misuser unless it is shown that the misuserwas “malignant." He relies upon a passage of Voet 19, 2, 18>which declares that in Voet's opinion it would not be just that alessee' should be ejected except on the ground of misconductwhich is at onoe gross and malignant. Ita quoque eum nonnisi ob notabiliorem in re condu'cta versationem malignant dejici,cequum est./
It certainly cannot be said that there was any malignant abuse ofthe property in :this case. All that was found was gross negligence.It remains to examine how far this expression of opinion on the partof Voet must be taken to declare the law. The question as to what-is the nature of the misconduct which would entitle the lessor toeject his lessee before the expiration of the term, and whether thatmisconduct must necessarily be “malignant," is part of a largerquestion^ i.e., under what circumstances is a lessor entitled to ejecthis lessee before the expiration of the term ? It would be con-venient that we should first discuss this general question.
The source of almost everything which has been written by theRoman-Dutch commentators on this subject to a brief passage
( 101 )
in Justinian's Code, Chapter 65, De Locato et Conducto, 3. Thatpassage is as follows: —
Idem (i.e., The Emperor Antoninus) A. Flavio Callimorpho.Dicetce, quam te conduct am habere dicis, si pensionem dominoinsulee solvis, inviium to expelli non opertet, nisi propnisusibua dominus esse necessafiam earn probaverit out corrigeredomum maluerit out tu male in re locata versatile es.
It is the final .phrase in this passage—aut tu male in re locataversatus es—which is the .subject of all the comments we have hadoccasion to consider. It should be observed that fthe paragraph is-not a general statement of the law by a jurist, but is a particularenactment in the form of a rescript by the Emperor Antoninus(presumably Antoninus Pius). It should also be observed that itrefers solely to urban tenements. The particular tenement men-tioned is a dieeta. At the time of the Roman-Dutch commentators,the accepted reading was here apparently erroneous, and the
word cede was substituted for dieetee. Dieeta means an. apart- *ment—generally an apartment in an insula, that is to say, ablock of lodgings. It may be compared to a flat in a block ofmodern “ mansions. ” It is sometimes translated “ dining room, ”and dining rooms appear to have been let separately in the buildingsreferred to. (See Voet in the paragraph under discussion and thepassage in the Digest to which he refers 19, 2, 2T.) But Forcelliniinsists that though a dieeta may be a dining room, it is notnecessarily a dining room. The Emperor thus declares that alessee of a dieeta who has paid his rent to the owner, of theinsula cannot be ejected against his will, except for three causes :(1) the fact (proved to the satisfaction of the Court) that the landlordrequires the apartment for his own use.; (2) the fact that he wishesto undertake repairs ; (3) mala versatio on the part of the tenant.
As I have above observed, this rescript relates purely to urbantenements. Urban tenements (urbana prcedia) are throughout.referred to separately in the text- and in the commentators. Theword used for a tenant of the former is inquilinus, and he is saidto inhabit (habitare) the tenement. The word for the latter iscolonus, and he is said to enjoy .it (frui). It is important that weshould bear this distinction in mind.
Let us now turn to Voet’s comments on this passage; it should beobserved that these begin in paragraph 16. He discusses the circum-stances under which a tenant may be ejected from either of thesetenements (de domo vel fundo). He distinguishes first of all cases inwhich the expelled tenant is entitled to no damages, but only toa remission of such rent as may have been paid in advance, fromcases in which he is entitled to claim damages. Proceeding todiscuss the former class, he refers to the passage in the Code abovecited, and using a text in which the mistaken reading' cede wassubstituted for dieeta, he speaks of a domus eloegta, and specifies
1922.
Bebzbax
C.J.
Silva*.
Obeyvsekerts
( 102 )
mm.
Buomm
CJ.
Sitvav.
Obtyesekera
three grounds on which a landlord might eject a tenant. Hestates the third in the exact words of the Code :—Vel conductor inre conducta male versetur.
It will be observed that he was here speaking solely with referenceto urban tenements. The other causes for ejectment which hementions, that is, non-payment of rentr the expiration of the lessor’stitle and the fact that the lease was gvaned by enemies in tempo-rary occupationofthecountry, refer to both urban and rural
tenements.
These causesfortheejectment of a tenant, enunciatedin
paragraph 16, are the subject of fuller comment in paragraph 18.He is still generally dealing with both rural and urban tenements.Note the phrase coZonos ac inquilinos. But as I read it, in hisfuller commentonthisparticular cause,:—-Mala versatio inre
conducta, he is still referring only to urban tenements. He insiststhat the malaversatioreferred to must not be negligible,or
merely a breach of the covenants which stipulate for .the manner in.which the property .is to be used but must be some grave andinjurious misuser of the property. He observes .that inasmuch''as the lessee of a dining room (ceenaculum) could hot put an end tohis tenancy because of,'the non-execution of repairs ■ which onlygave him slight inconvenience, so also it is reasonable (cequum est)that he himself should not be ejected except for some signal andmalignant misbehaviour in the property leased. Voet so far ishere speaking not of the tenant of a farm, but of the lessee of .aceenaculum in an insula. He says that to justify his expulsionthe misbehaviour of the tenant, must be "'malignant,” butit is. indeed, difficult to imagine in such a case any misuser of thepremises such as would entitle the landlord to cancel the lease,which would not be “ malignant. ”*
Most of the other commentators, whom I have consulted, also treatthe passage as having reference to. urban tenements. Christinccus(II. Decisio CXV.) whose comments in one of the fullest says : —
Tertio expelli potest in quilinus quando in re locata male versatur, hocest, facit rem deteriorem quam accepit tempore contractus.
It will be observed that he uses the word ” inquilinus. ” The.-examples he gives are the cutting down of trees (presumably in an-urban garden) and the burning down of staircases, and he further.observes that in all leases there is a tacit condition that the lesseeshall behave on the leased property :—“Bona fide eo modo quosolent frugi et temperantes homines verson.” By the examples bequotes, and by his reference to the necessity of the observance ofbona fides, Chris tin® us appears to be of the same view as Voet,viz:—That the abuse entitling a landlord to cancel must be malig-nant abuse. But it must be observed that subject to a further
* Van. Leeuwen. quotes Siehardus as suggesting that what the Emperor primarilyhad in his mind was the user of the premises as a brothel.
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observation of Voet, which I will consider immediately, both ofthcmn are speaking with reference to an Imperial rescript, referringsolely to urban tenements. –
The question next arises : Do the principles of this Imperialrescript, though originally enacted with regard to urban, tenements,extend to rural tenements ? Here we find ourselves on controversialground. Van Leettwen (2, 4, 22, 1) mentions that, two views wereheld. Carpzovius, contrary to. the general opinio^, maintainedthat the enactment should not be restricted to urban tenements.Van Leeuwen, with all respect to the eminence of Carpzovius,prefers to follow the general body of commentators, who took theopposite view, considering the weight of opinion – to be over-whelmingly on their side.
Ubi fuse eadem non solum in domo, sed etiam in fundo aUave relooata obtinere sentit contra Sichard, & alios communiter,qui dispositionem d. leg. S. Cod. Locat. ad pradia urbanarestringi volunt : quorum tamen sententiam propter nimianraUonts disparitatem, pace tanti Viri fummique Practid.sequi malim.
It seems to me that Voet, at any rate as far as the question ofmisuser is concerned, must be taken to be on the side of Carpzovius.After ths passage quoted above, he proceeds to add that, inasmuchas the methods of abuse which should be considered sufficientto justify ejectment are net found to be enumerated in the law, itwould .appear that the whole question must be left to the determi-nation of a prudent and careful judge, as to whether the particularabuse is to be restrained by ejectment or simply hy damages, orwhether, it should be, on the ground of its trivialityj be ignoredaltogether. It is clear that he does not mean this expression ofopinion to be restricted to urban, tenements, because he proceeds toadd that he is of this opinion whether the abuse In question is mani-fested in private matters or in public matters, and even in the caseof exactions by farmers of taxes.
The question of the applicability of tbis rescript to rural tenementsis discussed by the eminent French civilian, Domat (Bk. 2 Tit. 4.Having first quoted the rescript with reference to urban tenements,section 3t paragraph 13-16, and section 4, paragraph 1), he observesas follows : —
“All that has been said in the first three sections is common toleases of farms, and ought to be. applied to them, exceptsome articles of which it is easy to judge that they haveno relation to them. Thus what has been said of thelandlord's right to turn the tenant out of his house, if hehas occasion for it himself, has no relation to a lease ofland. In the saine manner it would be easy to judge of theother rules which ought not to be applied to leases of farms.**
( 104 )
IMS.
Bertram
CJ.
Bffoav.
Obe&eetkera
We are, therefore, in this position, that both in the original textsand in most of the commentators, mala versatio, as a ground forejection, is referred to only in connection with urban tenements, and itis by no means certain that the principles of the enactment, in whichthe phrase occurs, are to be considered as having been extended torural tenements. The question therefore arises :—Is therer no otherpassage in the original texts, which has been referred to and adoptedby .the Roman-Dutch commentators as stating the law with refer-ence to agricultural properties ? There is such a passage, thoughstrangely enough it is left without comment or reference by Voet,Van Leeuwen, Grotius, Groenewegen, Christineeus, and othercommentators. Voet, indeed, does refer in file fullest apid mostillustrative manner to the obligations of a tenant of a farm. (See19, 2, 19.) He refers to unseasonable cultivation, deterioration oftrees and vines by unskilful cultivation, neglect of buildings andwater channels, change of methods of cultivation, cutting down offruit-bearing trees, and. all sorts of other abuses f but he speaks ofthese solely fvOm the point of view of We lessor’s rights to damages,and nowhere suggests that they also confer upon 'him a. right tocancel the contract.
The passage above referred to is an opinion by the jurist, Paulus,and will be found in the Digest in the Chapter Locati et Oonducti19. 2, 64. The case submitted was that of a lease of a farm wherethe lessee and lessor had bound themselves by mutual penal stipu-lations, in the event of the lessor ejecting the lessee, or in the event ofthe lessee quitting the holding before the expiration of the term.The lessee had made default for two years in the payment of therent. Can he be ejected without apprehension of an .action for thepenalty ? The reply of the jurist was that though there was noexpress reference in the penal stipulation to the payment of rent,neverthless that it was reasonable to treat the agreement not toexpel the tenant during the term as subject to the payment of lentand proper cultivation. It should be observed that Paulus does notsay that a tenant will be expelled during his term for impropercultivation, ' but he treats the obligation to pay rent and theobligation to cultivate properly as being on the same footing, andexpresses the opinion that a tenant may be ejected for breach ofthe former obligation during the term, even though there is a penalstipulation to the contrary. By coupling rent with proper cultivationhe seems to imply that' the tenant may similarily be ejected during■ the term for. improper cultivation. This is the sense in which thepassage is understood by two commentators, Gerard Noodt andZcesius. Gerard Noodt (see 19, 2) discusses the obligations oftenants and insists on the duty of rural tenants : —
Ante omnia veto placet Oaio colonum curare, ut opera rusiicaSuo quoquo tempore faciat, nimirum, tie intempestivacultura deteriorem fundum faceret.
( 105 )
m
BBsmmCJ.
SUva v.
Obeyesekerrr
Nam vert simile est (quod Paulus respondit) ita convenisse de nonexpellendo colono infra tempora pr&finita: si duo obnervaverit,unum eat; si ut oportet, colnerit; alterum, si pcnxionibusparuerit.
Similarly Zaesius combines the opinion of Paulus with the res-cript of Antoninus, and, enumerating the causes for which a tenantmay be expelled, states as the third of such causes^—misconduct inthe leased property : —
“ Sub ext enim r.onditiae, ita colat, ita intiabitet, ut oportet: qua nonxervata non■ eat, quot qiueratur *e expelli.
“ For there is an implied condition that he shall so cultivate, spoccupy, as he ought to do and this condition not beingobserved there is no reason why he should complain thathe is ejected.” {XIX., s?, 36.)
It would appear to me, therefore, that the authorities availableto us for the proposition that a lessee of agricultural property maybe ejected before the expiration of his lease on the ground of negligentcultivation, consists of the opinion of Paulus, above cited, and thetwo comments by Gerard Noodt and Zcesius. It remains to be. determined whether the expression of Voet, with regal’d to thenecessity of misconduct being “malignant” in the case of urbanleases, should be held to be authoritative, with regard to impropercultivation under rural leases also.
It always seems to me interesting, in cases such as the iiresent, toexamine the parallel development of the Homan law in France.
I have quoted the opinion of Domat that it is for a Court to deter-mine to what extent the provisions of the Roman law, with regardto the obligations of urban tenants, must be considered as applyingto rural tenements. This"question was considered in the course ofthe preparation of the Code Civil, after the French Revolution. Theredactors there decided that the Roman principle, that a landlordmight eject a tenant if he required the property for himself, was notfounded on justice, and confined it only to cases in which the landlordhad so stipulated in his lease. (Art. 1761.) The obligation of thetenant-, under the Roman law, to occupy as a good pater fa milias
With regard to town tenants he. quotes the institutes as declaringthat they must behave in the houses leased to them as befits a goodpater familiatt :—In donio conducta versari ut oportet bonum patremfamilias. The commentator then recites the causes for which atenant may be expelled, even although there is an express agreementthat he shall not be ejected from the farm during the term of thelease. One of the causes is improper cultivation.
( 106 )
iraa.
Bbbsham
C.J.
Silva v,Obsyestkera
{Institutes 3, 24, 5) was adopted in the Code (Art. 1728); with regardto resiliation for misuser the Code declares (Art. 1766).
Si le preneur d’un heritage rural ne le gamit pas les bestiaux etlea ustensilea necessgires a son exploitation, s’il abandonnela culture, s'il ne cultive pas en bon petre de famille, s’ilemploie la chose louee oe un autre usage que celui auquel ellea ete destinie, ou, en general, s’il n’- execute pas les clauses dvbail, et qu’il en results un dommag.e pour le bailleur, celui-cipent, suivant les circonstances, faire resilier le bail.
The French Code thus in effect declares that it is a question of factEor the Judge, whether negligent user or management or breach ofcovenants should entitle a lessor to cancel a lease, to be decidedaccording to the circumstances of the case.
In the South African Courts there seems very little authorityas to the right of the lessor to terminate the lease for negligentcultivation and the conditions subject to which such action may be.taken. Nathan quotes ho South African decision on the particularpoint under consideration. Maasdorp cites a case where the Courtdecreed a cancellation on the ground of failure to feed ostriches onan ostrich farm. {Maasdorp, vol. 3, p. 233), and also another casewhich appears to be a case of an urban tenant. Morice {Englishand Roman-Dutch Law, 2nd ed. p. 177) says ;—
“If it appears from the terms of a lease that the fulfilment ofcertain stipulations are conditions of the lease, the Courtswill enforce forfeiture;”
hut he cites no very convencing authority for this general proposition.
The only case on our own books, in which the right to cancel a leaseof agricultural property for misconduct is discussed, is the case ofPerera v. Peris {supra.) The judgment was a decision of Lascelles C.J.sitting alone, and though it is one of very great cogency, the learnedChief Justice who bases his judgment on the phrase -in re ,conductamale versetur takes no note of Voet’s opinion that the maid versatioonly gives a right to cancellation, if it is malignant.
This being the position of the authorities, my opinion is as..follows: —, 1 2
(1)We ought, I think, to adopt as of general application Voet’s
suggested rule that in every case it is a question for theJudge whether any particular abuse may be more appro-priately dealt with by damages only or by cancellation ofthe lease.
(2)-Negligent cultivation may in any particular case, according
to the circumstances, be a ground for cancellation of alease.
(107 )
(8) Voet's observation that it would not be just to caucel a lease 1922*except on the ground of gross and malignant abuse mustbe read with the context in which it occurs and withCUT.
special reference to leases of urban tenements where, inthe nature of things, any abuse entitling the lessor .to Obeyestk&acancellation would almost necessarily be malignant.
(4) In the present case the learned District Judge must be taken- to have found that the negligent cultivation was of sucha degree and character that it could not appropriately bedealt with by damages alone, but called for the cancellationof the lease, and, I think, that there i£ adequate evidenceto justify his finding.
There are,, however, certain other aspects of the case which haveto be considered. I will proceed to set out these points for considera-tion. After the first expert witness called for the plaintiff had givenhis evidence, Mr. de Zovsa, for the defendant, submitted threeadditional issues:—r
Has plaintiff since the lease to the defendant transferred the
property in question to a third party? If so, can hemaintain this action ?
Has the plaintiff by bis conduct waived any right he may have
vhad to have the lease cancelled and claim damages?
Is the plaintiff’s claim prescribed ?
Counsel for the plaintiff raised the objection that these issues didnot arise on the pleadings, and that defendant should have got hisanswer amended so as to raise these issues. On this objection .beingtaken the learned District Judge disallowed the issues. Here thelearned Judge was certainly led into a mistake. No doubt it is amatter within the discretion of the Judge whether he will allowfresh issues to be formulated after the case has commenced, but heshould do so when such a course appears to be in the interests, ofjustice, and it is certainly not a valid objection to such a coursebeing taken that they do not arise on the pleadings. See Dureya v.Siripina,1 Fernando v. SoyzaAttorney-General v. Smith,3 Seneviratne.v. Candappa4 see also Jayawickreme v. Amarasuriya.s It wouldundoubtedly have been better had the learned Judge added theseissues in such terms as he thought just.
It now becomes our duty to consider what action should be takenwith regard to them at this stage of the case. With regal’d to thefirst of these new issues, it appears from a certified copy which hasbeen submitted to us that since the institution of the action, theplaintiff has made a gift of the property leased to his son, who is aBuddhist priest. It is. suggested that it is possible that this
Of
i
t
! (1908) 4 A. C.R. 125.3 (1906) 8 N. L. It. 229.
• &890) 2 N. L. R. 40.4 (&?7) 20 N. L. R. 60.
5 (1918) 20 N. L. R. 289.
( 108 )
1U22.
BERTRAM
C.J.
Silva v.Obeyesckera
Buddhist priest, who is now the real person interested in the rightof cancellation, might prefer to adopt the lease and continue thetenancy, or that it might appear that he had himself waived anyclaim to forfeiture, by accepting rent from the tenant. See D. C.Kalutara 9,107.1 It is also urged that he should, at least, be addedas a party under section 404 of the Civil Procedure Code, and thatthe Judge should have fully considered what might be the legaleffect of the assignment of the claim for cancellation. I think ithighly improbable that if the donee were added as a party, he woulddesire to repudiate his father’s action, and I see no reason to doubtthat it is the intention' of 'the Code, by providing for the addition orsubstitution of parties where there has been an assignment pendingaction, that the assignee should be entitled in the same action topursue the remedies of his assignor. This is a principle of Englishprocedure which I take our Code to have adppted. See' Order17, Buie 1. Nevertheless, as it is this donee, if anyone, who isentitled to the cancellation, I think the case should go back to allowof a motion for his addition as a party and for a framing of anyissue which may seem to arise on this being done.
With regard to the question of waiver, this is a most important oneand ought certainly to have been considered. The plaintiff thoughin his plaint he speaks of “repeated protests”, does not go into thewitness box, so that he could not be asked any question with regardto these protests. Very little appears in the evidence to show thathe was aware of the negleeted condition of the property, though thefact that he lived in the neighbourhood'may be considered to suggestthat he is likely to have been-. As the issue of waiver was excluded,it was not possible for Counsel for the defence to go into the matter,and it may be that had he addressed himself to the subject somefuller material might have been presented. There is no doubt that,the plaintiff accepted rent after the proprty was allowed to fall intoa neglected condition, but this in itself would not create a waiverunless the circumstances were known to him. The law, on thesubject of waiver of forfeiture by receipt of rent will be found dis-cussed in Smith’* Leading Cases in the notes to Dumpor’s Case.2See also the recent Privy Council case, cited by Mr. Bawa (King »•Poison.) 3 It seems desirable that the case should go back for thisissue to be raised and decided.
The third of the suggested new issues was that of prescription.Mr. Bawa suggested that it might well be that some of the damagecomplained of was caused by cattle at some time beyond the periodof prescription, and he even urged the extraordinary proposition,that, inasmuch as our Code authorizes a Judge to reffiect a'plaintwhere it appears on the face of it that the claim is prescribed, it isthe duty of every plaintiff in every case to prove affirmatively 1
1 S. C. Min., Dec, 5. 1921-* Smith’s Leading Cases, vol. /., p. 32.
3 {1921) 1. A. C* 271.
( 109 )
that this claim is not statute barred. It is hardly necessary to sayanything with regard to this proposition. In this cade the breachalleged is a continuous 'breach, and a fresh cause of action arisesduring each moment of its continuance. I do not see any reason forpermitting this issue to be raised at this stage of the case.
I am therefore of opinion that the case should be remitted for theconsideration of the issues indicated. For the' purpose of thatconsideration* the finding of fact of die learned Judge that there wasIn this case grossly negligent cultivation entitling the plaintiff in theabsence of waiver on his part, to the cancellation of the lease, shouldbe treated as final. With regard to costs, I think that the fairestorder would be that – defendant should pay the costs of this appeal,and that the costs already incurred in the Court below should becosts in the cause. Defendant has failed in the main issues of factand law. He has succeeded in getting the case sent back on thequestion of addition issues, but he might have appealed at onceon the point, and had he done so much time and expense wouldhave been saved.
Porter J.—I agree.
1088.
Bbbibah
C.J.
Silva v.Obeyeaekera
Sent back.