004-SLLR-SLLR-1983-1-WIGNESHWAREN-v.-MAMBIPILLAI.pdf
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. WANASUNDERA, J, RATHATTE, J-.,
AND ABDUL CADER, J.
S.C.NO.47/82,
S.C.SPECIAL LEAVE TO APPEAL NO.69/82APPLICATION NO. C.A.(L.A.)NO.60/81D.C. MOUNT-LAVINIA, CASE 110. 667/RE.October 10, 19S3.
band-lord and' Tenant -notion for ejectment ofReasonable requirement – Seation 22 (2)(b) of the
,-,325.
Tenant-Rent Act
Sri Lanka Law Reports:
[1983] 1 Sri LA.
326
Nr.7. of 1972 and Section 22 X2)(bb) of the Rent (Aeendment) Act No. 55 of 1980 – Whether an amendment of plaintcan be permitted unless an action was validly instituted -Sections 39,46(2). 55 and 147 of the Civil Procedure Code.
The Petitioner* ( a . Tamil Lady)* filed actionseeking to eject the defendant from the premises*on the ground of reasonable requirement under theRent Act No.7 of 1972. During the trial* twofurther issues numbering 3 and 4 were broughtforward by the defendant.
vis:
Whether the plaintiff is subject &on¥hesa~valasaai®
If so* could the plaintiff maintain thiscase according to tho manner in which itis filed?
In the meantime* the Rent Act was amended by•Ret No. 55 of 19S0 and the petitioner sought toamend the plaint in terms of Section 22(2) (bb) ofthis Act* and her application was allowed by theDistrict Judge. The defendant objected contendingthat the plaintiff being a Thesavalamai wife* couldnot validly institute legal actions without joiningher husband* and no amendment can be permittedunless an action was validly instituted. The Courtof Appeal decided that issues 3 and 4 be triedfirst to establish that the claim was validlyinstituted by the plaintiff and thereafter make anorder for the amendment of the plaint.
Held –
There is no reason to disagree with the decisionmade py the District Judge as
_ SC,Wgeneswarah v. Thaipbipiilai (Abdul Catter. X)327
a deaision on the Issues of status viz : 3and 4 will not decide the entire case ifthe plaintif succeeds;and
This action being a tenancy case it is inthe . interest of justice to decide theentire case together, so as to avoid inter-mediate appeals.
Cases referred to
Mango Nona vs. Hants Appu (1929) 31 NU..R.
218
Fernando vs. Fernando (1923) 25 N.L.R. 197
Appeal from an Order of the Court of Appeal
K.M. Chok&y, 5.A., with K. Kanag Iswaren with Kutaar.
N&dessn for the appellant.
E. 1. de Silva•S.A.* with S.Mahenthiran for the
Respondent.
Cur. adv. vult.
October 27, 1983.
ABDUL GA8E5,J.,
The appellant, a Tamil lady, filed actionseeking to eject the defendant from the premises insuit on the ground of reasonable requirement interms of Section 22 (2) (b) of the Rent Act No.7 of1972.
On the date of trial, the following issueswere framed
"(1)Are the premises relevant to this caserequired for reasonable occupation as aresidence for the plaintiff and members of her. family?
(2)If so.
.328
Sri Lanka Law Reports
[1983] l Sri LA
Is the plaintiff entitled to ask for adecree of ejectment of the defendant asprayed for in the plaint?
Hhn.t is the amount of damages which theplaintJ/C can recover from the defendant?*'
The defendant did hot frame any issues.'
On 12th January, 1981, when the plaintiff wasunder cross-examination, and in consequence ofcertain statements made by her, the defendantraised further issues
"(3)Whether the plaintiff is subject to1Thesavalamai’?
(4)I£ so, could the- plaintiff maintain
case according to the manner in which itis filed ?8’
The trial was postponed .further for 12th Hay.1981.
In the meantime, the Rent Act was amendedby Act Ho.53 of 1980 which introduced a new groundof ejectment under Section 22 (2)(bb) and on 31stMarch, 1981, the petitioner sought to amend theplaint in terms of this Section. The defendant ob-jected to this application, but the District Judgeby his Order of 12th May, 1981, allowed theapplication.
The defendant appealed to the Court ofAppeal against the Order of the learned DistrictJudge corts.iding that the plaintiff being aThesavalamai wife, could not validly institutelegal proceedings without joining her husband, andno amendment can be permitted unless an action wasvalidly instituted and, therefore issues 3 and 4 asregards the status of the plaintiff should bedecided before the amendment can be allowed. Therelevant section (21(1) of the amending Act) reads
SC.Wigeneswaran v. Thambipillai {Abdul Cadur, J.i229
i••
as fo*lavs:—
'Where any action or proceedings .instituted inany Court for the ejectment of a tenant fromany premises under subsection (2)(b) ofSection 22 of the principal enactment, is orare pending on the day immediately precedingthe date of cooanencement ■ of this Act, thelandlord of such premises may, where he seeksto rely on any new ground specified insubsection (2)(bb) of Section 22 of the prin-cipal enactment, make application to the Courtto amend the plaint and the court shall,notwithstanding the provisions of any otherlaw, permit the landlord to amend the plaintin such action or proceedings and make suchother orders as may be necessary, where thecourt is satisfied that the landlord hasdeposited with the Commissioner of NationalHousing a sum equivalent to five years' rentof such premises to be payable to the tenantthereof, and proceed fo hear and determine theaction or proceedings oh the newground
adduced, and make order in accordance withsection 22 of the principal enactment."
The Court of Appeal decided (a) that the word"instituted" in this Section means "validly insti-tuted," and, therefore, the plaintiff should firstestablish that the claim was validly instituted' byher without joining her husband and (2) if theplaintiff is permitted to amend the plaint as re-quired in this Section before she established (a)above, defendants will be precluded from having thecase tried on issues 3 and A.
The Court of Appeal directed that issues 3 and Abe tried first and thereafter (presumably if theplaintiff succeeds) make an order for the amendmentof the plaint.
As regards the first, an action is institutedwhen a plaint is presented under Section 39 of the
[1983Jl Sri LR.
-330—-Sri Lanka Law Reports
l>i ■■ *■ ■C..P.C. The decisions in HangQ. Nona vs. HantsAppu(l) and Fernando__ vs. PereraC2) support this(▼lev. Unless it is rejected by Court in terns of 'Section 46(2) of C.P.C., summons will issue interns of Section 55 C.P.C. ou the basis that theaction has been properly instituted. Counsel forthe defendant cited decisions as regards minorswhich have to be distinguished as the fact ofninority was disclosed in the plaints unlike in thecase where the plaintiff did not admit that she wasunder coverture and. therefore, the Court had nomaterial to consider that the plaint was irregular.This action remains validly instituted until theCourt is satisfied on evidence that the plaintiffis a woman governed by the law of Thesavalamai.
In reply to plaintiff’s contention that Section147 C.P.C. requires only issues of law to be triedpreliminarily and where the facts are in dispute.m order to' have two separate trials cannot bemade. Counsel for the defendant urges that theDistrict Judge had a discretion to decide to hearcertain issues preliminarily if they will go to theroot of the case. There is no reason to disagreewith the decision made by the District Judge as (a)a decision on the issue of status, via:3 and 4
will not decide the entire case if the plaintiffsucceeds and (b) this action being a tenancy caseit is in the interests of justice to decide theentire case together, so as to avoid intermediateappeals.
Under these eircumstariees, it is not necessaryto interpret ' V meaning of Section 147 C.P.C.
The second of the reasons given by the Court ofAppeal is*clearly wrong, se. much so that evenCounsel for the defendant did npt seek te supportit. "The action or proceedings on the new groundadduced which the Court is called upon to hear anddetermine" necessarily presupposes the ordinarylegal framework consisting of both procedural andsubstantive law which provide for the orderly
.331: Wfgeneswaran v. Thambipillai (Abdul. Cader, J.).SC.
determination •£ disputes between parties.
Counsel for the defendant having admitted thatthe permission to amend the plaint willnot
preclude defendant's right to challenge the statusof the plaintiff, the present exercise of thedefendant is nothing other than an attempt toobtain further time in an action which has beenalready delayed from 12.5.81, thereby defeating theprovisions of Section 22(2)(c)•
The appeal is allowed. The order of the learnedDistrict Judge is restored. The amendmentis
accepted. After issues are framed consequent to theamendment trial will proceed on all issuestogether. The defendant-respondent will pay theplaintiff-appellant the costs of this Court and ofthe Court of Appeal.
In terms of Section 22(2)(c) this action shouldhave been disposed of in its entirety over an yearago. The Registrar is directed to forward therecord to the District Court within,., two weeks of
this order and the Mstriet Judge is directed tohear and conclude proceedings within 4 souths ofthe. receipt of the record.
. WANASUNDERA , J. I agree.
RATWATTE, J.I agree.
_ Appeal allowed –