075-NLR-NLR-V-22-SIRIWARDANA-v.-BANDA-et-al.pdf
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1220.
Present: Schneider A.J.
SIRIWARDANA v. BANDA et al181—C. R. Regatta, 16,526.
Lease— Vendor and 'purchaser—Action against lessee in ejectment—Failure of lessee to appeal against judgment—Subsequent actionby lessee against lessor for damages for failure to warrant anddefend.
The plaintiff, who was a lessee under the defendants, was suedin ejectment by a third party in C. R. Kegalla, 16,109. Thedefendants had notice of the action, was present in person at thetrial, and was a party to the action. Judgment went againstthe plaintiff, and he was ejected. He did not appeal. He suedhis lessors (defendants) in this action to recover damages forfailure to warrant and defend.
Held, that in the circumstances the fact that plaintiff had notappealed in case No. 16,109 was not a bar to his present claim.
H. V. Perera, for defendants, appellants.—It was not sufficientfor the lessee to have given his lessors notice to warrant and defendtitle, it was his duty to have defended the action with all his power(Voet 21, 2, 20). He should have appealed. Voet (21, 2, 30)says that the actio de evictions fails “ when the purchase has notappealed when defeated in the suit, the vendor being absent;. . . . contrary to what obtains if the vendor had been present,for in that case the function of appealing lies on him if he thinks thatthis step should be taken/1 (Berwick's Translation.) The contextshows that the word “ absent ” refers to non-participation in theaction in the sense of not being a party to it. Although the presentappellants gave evidence in the previous action, they were notparties to the action and could not have appealed.
Counsel cited Jinadasa v. Duraya.1
1 (1918) 20 N. L. R. 158.
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• J. 8. Jayauxardene, for plaintiff, respondent.—The wordB “present ”lflSO.
and “ absent ” in the passage cited from Voet bear their ordinary Sir^^anameanings. Even otherwise the passage dees not apply, as the «. Bandaappellants had given a proxy to a proctor and were, therefore, partiesto the action. In any case it was not the duly of the lessee to havepreferred a hopeless appeal. The judgment in that case is dearlyright.
Counsel eitecUAhamadu Lebbe v. Maris Appax and Menika v.
Adakappa Chetty.a
H. V. Perera, in reply.—We are not concerned with the merits ofthe previous action. It is not correct to say that the appellantswere parties to that action; what the Commissioner finds is that“ the defendants in this oase had full knowledge of the proceed-ings in 16,109, and they were given an opportunity of warrantingand defending their title, which, however, they failed to do in thatcase.” *
September 16,1920. Schneideb A .J.—
The plaintiff in the present action was in possession of a sharein a chena under a lease by the defendants. He was sued inejectment by a party claiming adversely to his lessors. Judgmentwent against the plaintiff and he was ejected. Plaintiff did notappeal. He sued his lessors in this action to recover damages forfailure on their part to warrant and defend the title to possessionunder the lease. They resisted this claim by contending that theomission to appeal debarred the plaintiff from maintaining thisaction. The learned Commissioner held against this contention,and gave judgment for the plaintiff. The defendants have appealed.They have no right of appeal, except upon a matter of law.The matter of law was formulated in the issue upon whioh theaction was tried: “ Is plaintiff entitled to maintain this actionin view of the fact that he failed to appeal from the decree inNo. 16,109 ? ”
The word “ failed ” is not the correct word. It implies thatthat duty lay upon him and he failed to discharge it. The truemeaning of the issue would have been better expressed by thewords “ did not appeal.” The learned Commissioner finds that thedefendants were noticed and had intervened in C. R. No. 16,109.This finding is justified by the evidence. Even if it were not,I must take the findings of fact by the Commissioner as con-clusive in this case. The Commissioner holds that as the defendantshad notice of the action, and had failed to warrant and defendtitle, no duty lay on the plaintiff to appeal from the judgment.
(1903) 9 N. Zr. B. 289.
• (1913) 17 N. L. 5. 93.
1920.
SCBNBXDBR
A.J.
Siritcardanav. Banda
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In support of the defendants’ contention on appeal, a passagefrom the judgment of my brother De Sampayo in Jinadasa v.Duraya1 was cited. That passage, in my opinion, does not supportthe contention. It is based upon what Voet states when speakingof oaseB in which there is no liability on the part of the autor forfailure to warrant and defend title. (Voet 21, 2, 30.) From whatVoet says it is dear that the duty to appeal in 0. R. No. 16,109was not upon the plaintiff, but upon the defendants. He says theaction in damages against the autor fails “ when the purchaserhas not appealed when defeated in the suit, the vendor beingabsent, or has appealed indeed, but has abandoned the appeal;contrary to what obtains if the vendor had been present, for inthat case the duty of appealing lies on him if he thinks that thisstep should be taken.” (Berwick's Translations 536, rev. ed.).
The Commissioner finds that the vendor was present, nofc onlyin the sense of having received notice and being actually presentin person at the trial, but also in that of being a partyHo the action.I would add that if it had been necessary to consider whatVoet means by the vendor being “ present ” or “ absent,” I wasprepared to hold that those words connote no more than theirordinary meaning.
The appeal is dismissed, with costs.
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1 (19IS) 20 N. L, Rt 168.