015-NLR-NLR-V-63-F.-H.-G.-SILVA-Appellant-and-A.-ABEYSUNDERA-Respondent.pdf
94
Silva v. Abey sunder a
1961Present : Tambiah, J.
H. G. SELVA, Appellant, and A. ABEYSTJNDERA,
Respondent
S. C. 104—C. R. Colombo, 74,778
Landlord and tenant—Death of tenant—Landlord's suit against sub-tenant for damagesand ejectment—Jurisdiction of Court—Rent Restriction Act.
Upon the death of a tenant, the landlord sued the sub-tenant for damages andejectment. The plaintiff averred that the defendant was a trespasser. Thedefendant did not claim to be the tenant of the plaintiff. He raised the issuethat the Court of Requests had no jurisdiction to hear the case.
Held, tha 6 as the value of the premises in question was over Rs. 300 the Courtof Requests had no jurisdiction to hear the case.
Appeal from a judgment of the Court of Requests, Colombo.
H. Wanigatunga, with H. Mohideen, for the defendant-appellant.
H. W. Jayewardene, Q.C., with V. ThiUainathan, for the plaintiff-respondent.
Cur. adv. vult.
TAMBIAH, J.—S-ilva v. Abeysundera
95
June 7, 1961. Tambiah, J.—
In this case, the plaintiff had let the premises bearing assessment No. 16,Daisy Villa Avenue, Bambalapitiya, to one G. R. S. Gunasekera. Theplaintiff had filed action against the said G. R. S. Gunasekera in CaseNo. 68921 stating that the said G. R. S. Gunasekera sublet two rooms ofthe premises in suit to the defendant without obtaining her prior consentin writing, in contravention of the Rent Restriction Act. Mr. G. R. S.Gunasekera died on the 29th of March 1958 before service of summonscould be effected on him and the plaintiff thereafter obtained an Orderof Court substituting one L. D. S. Gunasekera in place of the deceased.Mr. G. R. S. Gunasekera was noticed on the 29th of September 1957 toquit the said premises by the 31st October of the same year. The plaintiff,in his plaint, pleaded that as the tenancy between the plaintiff and thesaid G. R. S. Gunasekera was terminated by reason of the death ofMr. G. R. S. Gunasekera on the 29th of March 1958 and/or by reason of thenotice to quit, the defendant’s right to remain in the two rooms of thesaid premises as a sub-tenant or as a licensee had come to an end and con-sequently the defendant was a trespasser after the 29th of March 1958.The plaintiff claimed damages and ejectment. The defendant, on theother hand, raised the issue that the Court of Requests had no jurisdictionto hear this case.
The learned Commissioner held that as the defendant was not a con-tractual tenant but a trespasser, he could not be sued unless the plaintiffproved ownership of the property. As regards the question of juris-diction, the learned Commissioner, purporting to follow the ruling in Saibov. Ameen 1, stated as follows :—
** The case of 60 N. L. R. 426 is very much in the plaintiff’s favour onthe question of jurisdiction, for it holds that where the plaintiff claimedthat defendant was a trespasser and the defendant contended that he washis lawful tenant, without disputing his title, the jurisdiction of theCourt to try the case did not depend on the value of the premises, but onthe rental value. I am satisfied that this Court has jurisdiction to trythis case and that the plaintiff is entitled to ejectment of the defendant. ”
In the instant case, the defendant does not claim to be the tenant ofthe plaintiff and has put the plaintiff to the proof of his title and theplaintiff, on the other hand, has averred that the defendant was atrespasser. I fail to see how the ruling in Saibo v. Ameen (supra) appliesto the facts of this case.
The owner of premises, who has a sub-tenant' on his premises, hasthree courses open to him to obtain possession. Firstly, he could bringan action against the tenant and add the sub-tenant as a party to theaction under Section 18 of the Civil Procedure Code. Secondly, if he
1 (1956) 60 N. L. R. 426.
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TAMBlAH, J.—Silva o. Abeyeundera
has sued the tenant without joining the sub-tenant he can obtain asubsequent order for ejectment against him under section 327 of theCivil Procedure Code. Thirdly, where the landlord has sued the tenantwithout joining the sub-tenant he may sue the latter for ejectment in aseparate action, (vide Ibrahim Saibo v. Mansoor1.) In the instantcase, as the plaintiff has sued the defendant as a trespasser, the value ofthe suit is the value of the said premises which admittedly are worth overRs. 50,000. The Court of Requests, therefore, has no jurisdiction tohear the case.
It is a matter of regret that the law has not been amended to giverelief to landlords to eject tenants by a speedier process in the Court ofRequests. Although they could bring an action against their tenants forejectment in the Court of Requests, if the rent is less than Rs. 300, theyhave to sue a sub-tenant as a trespasser in a District Court, if the value ofthe premises is over Rs. 300.
The defendant has not set out any title in himself and has raised thequestion of jurisdiction to resist the plaintiff’s action. His conduct hasbeen such that he deserves no costs in the lower Court. The appeal isallowed and the plaintiff’s action is dismissed. There will be no costs inthe Court of Requests, but he is entitled to his costs of appeal.
Appeal allowed.
1 (1953) 54 N. L. R. at 223.