RASHEED ALI v. MOHAMED ALI AND OTHERS

025-SLLR-SLLR-1981-1-RASHEED-ALI-v.-MOHAMED-ALI-AND-OTHERS.pdf


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RASHEED ALI
v.
MOHAMED ALI AND OTHERS
SUPREME COURT
WEERARATNE J„ SHARVANANDA J.,
AND WANASUNDERA J„
S. C. APPEAL NO. 6/81
A, APPLICATION NO. 997/80
C. COLOMBO NO. 3290/2LJULY 21,1981, AUGUST 31,1981& SEPTEMBER 1, 1981.
Civil Procedure — Execution proceedings — Constructive possession – Resistance toFiscal — S. 325 and 236 C.P.C. — Can revision lie from order under s. 326 C.P.C. Article128 of Constitution? Is the order a final order?
Held
The powers of revision vested in the Court of Appeal are very wide and the Court canin a fit case exercise that power whether or not an appeal lies. .Where the law does notgive a right of appeal and makes the order final, the Court of Appeal may neverthelessexercise its powers of revision, but it should do so only in exceptional circumstances.Ordinarily the Court will not interfere by way of review, particularly when the law hasexpressly given an aggrieved party an alternate remedy such as the right to file a separateaction except when non-interference will cause a denial of justice or irremediable harm.
The preliminary objection that the appeal is not properly constituted because theorder appealed from is an interlocutory order or judgment and special leave to appealshould have been obtained is not entitled to succeed because the order in question is afinal order. There can be a final judgment in execution proceedings.
Held further (a) (Sharvananda J. dissenting) the Court of Appeal has erred in takingthe view that unless the application for revision was entertained the appellant wouldnot be able to obtain a stay order until he files an appeal; and the ultimate remedywould be rendered nugatory and that constituted exceptional circumstances. The factthat a Judge's order is merely wrong is not a sufficient ground for exercisingthepowersof revision.
(b)The appellant had not complied with Rule 46 of the Supreme Court Rules 1978 andhas suppressed from the appellate Court some essential material. The claim to titleand/or tenancy rights and/or rights of a licensee show a lack of consistency and cohe-rence in the appellant's case and the preliminary objection that material facts weresuppressed is entitled to succeed.
Cases referred to:
iH Ibrahim Saibo v. Mansoor (1953) 54 NLR 217.
Marikar v. Oharmapala Unnansr (1934) 36 NLR 201.
Artis Appuhamy v. Simon (1947) 48 NLR 298.
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Palaniappa Chatty v. Mercantile Bank of India (1942) 43 NLR 352
Usoof v. Nadarajah Chettiar (1957) 58 NLR 436.
Subramaniam Chetty v. Soysa (1923) 25 NLR 344.
Arnolis Fernando v. Selestina Fernando (1922) 4 CL Rec 71.
Usoof v. The National Bank of India Ltd. (1958) 60 NLR 381,383.
Zahir v. Perera (1970) 73 NLR 424.
Somawathie v. Cooray (1961) 64 NLR 495.
Krishna Pershad Singh v. Motichand (1913) 40 Cal. 635.
Ramchand Manjimat v. Gower Dhandas AIR 1920 PC 86.
Salaman v. Warner (1891) 1 OB 734.
Boron v. Altrincham U.D.C. [1903] 1KB 547.
Abdul Rahman v. Cassim 8 Sons AIR 1933 PC 58.
APPEAL from judgment of the Court of Appeal reported at [1981 ] (2) SLR 29.
C. Thiagalingam Q.C. with S. Mahenthiram for'petitioner-appellant
H. W. Jayewardene Q.C. with N. S. A. GoonetiUeke, A. Mahendran, Lakshman Perera
and Miss P. R. Seneviratne for the Plaintiff-respondent.
Cur. adv. vult.
November 20, 1981.
WANASUNDERA, J.
In this matter, the applicant (who is a person claiming in goodfaith to be in possession of certain premises seized in executionproceedings) appeals against the order of the Court of Appealrefusing to revise an order of the District Court in favour of theexecution creditor — the plaintiff-respondent in execution procee-dings. The main action was filed by the plaintiff-respondent KhanMohamed Ali against his vendor one Marshall, the present defen-dant respondent, for a declaration of title to and vacant possessionof the property he had purchased.
Khan Mohamed Ali had bought this property on deed 2208 of22.2.1979 from Marshall and the vendor had undertaken to givehim vacant possession of the premises by 30th June 1980. Failingto get vacant possession, Khan Mohamed.Ali filed this action on18th October 1979 against Marshall. When the case came up forhearing, the defendant Marshall consented to judgment, anddecree was entered in favour of Khan Mohamed Ali declaring thathe was entitled to the premises and ordering the ejectment ofMarshall and "all those holding under him."
On the 7th of February 1980, when the' Fiscal went to executethe writ he found two persons on the premises. The first was agram seller in occupation of the front portion of the premises, butwe are not concerned with him in this case. The other was theappellant Mohamed Haniffa Rasheed Ali, who stated that he wascarrying on business in the premises by virtue of an agreementwith one Sangaralingam Muttusamy, which he produced (now
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marked as A4). The writ was accordingly returned unexecuted. Ona later date, the Fiscal, in accordance with the legal positionenunciated in Ibrahim Saibo v. Mansoor, 54 N.L.R. 217H) gaveconstructive delivery of possession of the. premises to the judg-ment-creditor, without prejudice to his right to take proceedingsunder section 325, Civil Procedure Code, for a complete andeffectual delivery of possession.
In the objections filed by the present appellant in the inquiryunder section 325, he appears to have taken a number of differentpositions. He first stated that he had been placed in possession ofthe premises by S. Muttusamy who was a tenant of Marshall. Thenhe went on to add that —
Muttusamy was collecting a sum of Rs. 1350/- per mensemfrom him and paying a sum of Rs. 600/- to Marshall.
the appellant was in occupation of the premises with theknowledge and acquiescence of Marshall.
about the end of 1978 Marshall had asked the appellant"for an increased rental and a sum of Rs. 750/- was paidfrom January 1979."
Marshall had negotiated with him for the sale of the premi-ses for a sum of Rs. 140,000/- and a sum of Rs. 40,000/- asan advance was paid by him to Marshall on 6th February1979.
Along with the objections, an affidavit had also been filed; butit has not been included in the papers filed by the appellant in theCourt of Appeal or before us, although produced in the trial courtas2R5.
At the inquiry appellant's counsel, in justifying the resistance. and obstruction by his client to the execution of the writ to posse-ssion, explained and clarified what was stated in the statement of-objections. Counsel had stated that the appellant "remains thereon his own rights or that he is there as the tenant of the sellerMarshall." The appellant, when he gave evidence, further ampli-fied his position by not only suggesting that he had a directrelationship with Marshall, but went further and produced a certi-ficate of registration under the Business Names RegistrationOrdinance (2R1), showing that he has been carrying on a businessunder the name "New Wappa House" in these premises from asearly as 23rd July 1975. He also stated that Marshall had wantedto sell these premises to the appellant for Rs. 140,000/- and the
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appellant had agreed to buy them and had actually paid Marshallan advance of Rs. 40,000/-. When the appellant heard thatMarshall had sold this property to the judgment-creditor behindhis back, the appellant had complained to the Police and had goneto the extent of seeing that criminal proceedings were filed in theMagistrate's Court against Marshall. He produced a copy of theplaint 2R3. In the same context, the appellant also referred to theagreement he had with Muttusamy by which Muttusamy hadhanded over to the appellant the management of the businesscalled "Dawalagiri Hotel" carried on by Muttusamy in thesepremises. This evidence was clearly contradictory in nature.
The learned trial Judge had disbelieved the appellant and rejec-ted his claim. He held that the evidence did not' show that theappellant was either a tenant of Marshall or of Muttusamy, underwhom the appellant had merely a management agreement in res-pect of an eating house called Hotel Dawalagiri. Accordingly,in terms of the provisions of section 326, the learned DistrictJudge held that the resistance and obstruction on the part of theappellant was frivolous and vexatious and directed that the judg-ment-creditor be placed in possession of the premises.
Now an order made under section 326 against any party otherthan the judgment-debtor is not appealable. But, any aggrievedparty has been given the right to institute an action to establishhis right of title to such property (vide section 329). The appe-llant however came directly to the Court of Appeal and applied tohave that order revised. A preliminary objection, whether or notan application for revision would lie from an order under section326 of the Civil Procedure Code, was one of the matters debatedbefore the Court of Appeal and also before us.
It may be convenient to dispose of this matter at the outset.The Court of Appeal, after an examination of numerous authori-ties, has rightly taken the view that the powers of revision vestedin the Court of Appeal are very wide and the Court cari in a. fitcase exercise that power whether or not an appeal lies. .When,'. however, the law does not give a right of appeal and makes theorder final, the Court of Appeal may nevertheless exercise itspowers of revision, but it should do so only in exceptional cir-cumstances. Ordinarily the Court will not interfere by way ofreview, particularly when the law has expressly given an aggrievedparty an alternate remedy such as the right to file a separateaction, except when non-interference will cause a denial of justiceor irremediable harm.
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The Court of Appeal has however erred in the application ofthese principles to the facts of this case. The Court was of theview that, unless this application for revision was entertained, theappellant would not be able to obtain a stay order until he files anappeal; and if a stay order was not granted at this stage, the ulti-mate decision in the case would be rendered nugatory. The Courtwas of the opinion that this constituted exceptional circumstan-ces. This reasoning is not tenable for more than one reason and thefact that Court by an oversight had forgotten that there is no rightof appeal in this case is alone sufficient to invalidate its decision. Itwould be sufficient in the present context also to state that thefact that a Judge's order may be merely wrong.should not be asufficient ground for the exercise of the'powers of revision in acase such as this and, as far as I could see, the appellant could nothave placed his case any higher. In an application for revision ofthis nature, the threshold is much higher than that required froman appellant exercising a mere right of appeal. When the facts areexamined, it will be seen that this was not such a case and theCourt of Appeal should not have properly exercised its powers ofrevision in this matter.
Another matter taken up before the Court of Appeal on behalfof the judgment-creditor was a preliminary objection that theappellant had not complied with Rule 48 of the Supreme CourtRules 1978 and has suppressed from the appellate court someessential material. This rule which is applicable to the appellateprocedure before the Court of Appeal requires the appellant toplace before Court, along with his petition, all "documents mate-rial to the case." This objection had been taken when this revisionapplication first came up in the Court of Appeal before a benchpresided by Wimalaratne, J. After this bench heard arguments andhad reserved its order, Wimalaratne, J., was elevated to the Supre-me Court and the case was then argued de novo before anotherbench consisting of Soza, J., and L. H. de Alwis, J. Counsel forthe respondents said that the non-production of this material wasnot a mere omission but a studied suppression of relevant material.The respondent alleges that the Business Registration Certificatewhich was always available to the appellant for production waskept away from the Court of Appeal when the first bench heardthe case, but at a later stage the appellant sought to produce itafter that Court had made some adverse comments regarding itsnon-production. When the case was re-argued, this same documentwas again withheld presumably because the first bench had givenan indication that this document went against the case of theappellant. The same was said of the Magistrate's Court proceedingswhich have not been produced.
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The appellant, on the other hand, has stated that he had to filethe revision papers with the utmost urgency with whatever mate-rial that was available since he ran a real risk of being evicted fromthe premises if there had been the slightest delay on his part. It isunderstandable that in such circumstances a party may well findit difficult or impossible to furnish a complete brief with all thematerial documents at such short notice. The Court of Appeal has,therefore, taken a practical view of the matter and was prepared toexcuse the initial lapse on the part of the appellant in not filingthe relevant documents along with his petition.
But the complaint against the appellant does not rest there. TheCourt of Appeal upheld the preliminary objection, because it tookthe view that the provisions of regulation 46 have a mandatoryeffect and any omission must be made good even at a late stage.As the Court of Appeal pointed out, there are provisions in theRules enabling an amendment of the petition and for the tende-ring of additional material with the permission of court. This theappellant has failed to do. Referring to this, the Court of Appealsaid—
. . . yet this does not absolve the petitioner from com-plying with Rule 46 as soon as it was possible for him to doso by moving for amendment of the petition or tender of addi-tional documents. Instead as late as 19.11.1980 he tendered onedocument — a copy of a complaint to the Police (2R3) — with-out verification and without obtaining the permission of Courtand after the pinch of the argument was ascertained at theearlier hearing concluded on 1.10.1980. The documents— acertificated copy of the Magistrate's Court case No. JMC 34213relating to the payment of Rs. 40,000/- by the petitioner to thefirst respondent and the Certificate of Business Registration ofthe petitioner — remain yet to be presented. For these reasonsthe preliminary objection is entitled to succeed."
As an excuse for the appellant not complying with Rule 46 evenat a late stage, it has been submitted that before he cotild furnishthese documents the respondent had come into the Court ofAppeal even before the notice returnable date, and filed thdsedocuments. The appellant therefore considered it unnecessary toduplicate that material. Let me examine this excuse a little moreclosely. While I am against mere technicalities standing in the wayof this Court doing justice, it must be admitted that there are rulesand rules. Sometimes courts are expressly vested with powers tomitigate hardships, but more often we are called upon to decidewhich rules are merely directory and which mandatory carrying
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certain adverse consequences for non-compliance. Many proce-dural rules have been enacted in the interest of the due adminis-tration of justice, irrespective of whether or not a non-compliancecauses prejudice to the opposite party. It is in this context thatJudges have stressed the mandatory nature of some rules and theneed to keep the channels of procedure open for justice to flowfreely and smoothly. The position of course would be worse ifsuch non-compliance also causes prejudice to the opposite party'.
If we ar.e to accede to the appellant's plea that he should beexcused from complyfng with the rule, because the respondent hasfiled some of these documents, we would be virtually investing anappellant with a discretion whether or not to comply with therule, because the required material has already been filed by theopposite party or iris anticipated that they would be filed by thatparty. Such I thiiik is not the law. The material filed by a respon-dent is in support of his own case and is in no way intended tosupplement the appellant's case or to make good any omissions onthe part of the appellant. I am having in mind here not mereformal documents, but material that have a direct bearing on theissues in a case.
Even assuming that the appellant's excuse is acceptable, itwould still cover only those documents which have been producedby the respondent. Mr. Jayewardene pointed out that there areyet other documents which are material to the case and are notbefore the Court. These are the two documents referred.to injudgment of the Court of Appeal. It may be mentioned that anattempt was made at the last moment when the matter was beforeus to have these documents filed in this Court. This has not beenallowed.
Mr. Thiagalingam then submitted that he was prepared to arguehis case without reference to these documents and stated that thepoint he is raising before us is a legal one and can be decided withreference only to two documents, namely A4 and A11, which arenow before us. Even in this connection it may be observed thatdocument-A4, which now appears to be the foundation of theappellant's argument, was not a document filed by him but .is oneof the documents tendered by the respondent to the Court ofAppeal. In fact, even at the inquiry before the learned DistrictJudge, this document had been produced by the respondent tomeet the appellant's claim to legal title in his own right or atenancy right. The question then is, whether or not this issueraised by Mr. Thiagalingam can be decided in isolation withoutregard to the totality of the evidence in the case, particularly those
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documents not produced by the appellant. A consideration of theevidence is thus necessary and incidentally in this inquiry one hasto traverse the same ground as is necessary for a decision on themerits.
The document A11 shows that on 31st October 1975, Muttu-samy handed over "the management of the said Hotel business"(namely, Dawalagiri Hotel) of which he claimed to be the owner,to the appellant for a 3 year period commencing on 1st November1975. The provisions of the agreement relate to matters of puremanagement — the payment of salaries and wages of the emplo-yees, the payment of electricity bills and water tax, which obliga-' tions were undertaken by the appellant. There is no indication,express or implied, showing that these premises were sublet to theappellant although he occupied the premises for managementpurposes. The agreement also does not speak of a payment ofrent. As consideration, .the appellant had deposited a sum ofRs. 12,250/- as security on the execution of the agreement andagreed to pay Muttusamy Rs. 45/- daily as commission.
By agreement A4, the management agreement was extendedfor a further period of 3 years, commencing on 1st November1978, on the same.terms as the earlier agreement. Mr. Thiagalin-gam has submitted that irrespective of any other considerations,these two agreements are sufficient to establish a legal interestin the appellant to enable, the appellant to prefer a bona fideclaim to continue in possession and to resist the judgment-credi-tor, and that such a claim by the appellant cannot be regarded asbeing frivolous or vexatious.
There may have been some substance in Mr. Thiagalingam'ssubmission if that was his client's case from the outset, and it wasa straightforward account without ramifications and other factorsbearing on it. Unfortunately, the matter is complicated by a num-ber of other features and it has become necessary to consider thevalidity of the appellant's claim in a wider context than suggestedby Mr. Thiagalingam. The courts below have thought it fit to con-sider certain other documents in addition to the two relied on byMr. Thiagalingam for the resolution of this issue and they are•embodied in the two judgments of the courts below. All thosematters are before us in this appeal and the relevancy of thosedocuments to this matter will become evident when the facts arecarefully examined.
At the time the respondent Khan Mohamed AM filed actionagainst Marshall, claiming vacant possession of these premises,
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Muttusamy who was alleged to be Marshall's tenant had beendead. He had died on 1st March 1979 and his business on thesepremises was being conducted ostensibly not by any of his heirsbut by the appellant. Up to now his heirs have neither come for-ward to make a claim to the tenancy nor shown any right orinterest in these premises. Muttusamy was thus not made a partyto the action. Further, the Certificate of Registration of BusinessNames produced in the trial court (but not produced before theCourt of Appeal or before us) appears to be in line with theappellant's claim for an independent title and has therefore theeffe&t of destroying the case the appellant has now sought to putforward, based on documents A4 and A11.-This certificate showsthat the appellant has registered himself in his own right as theowner of a business called “New Wappa Eating House" at thesepremises and that this business had been going on since 23rd July1975. It will be observed that the agreements A4-and A11 are inrespect of Dawalagiri Hotel and not “New Wappa Eating House."Further, the management agreements commence ‘from 31st Octo-ber 1975, which is subsequent to the date given in the certificate.All in all, the certificate cuts across the foundation of the appe-llant's claim to be a tenant of Muttusamy. The effect of thisevidence is to sever the appellant from any connection with theperson or persons lawfully entitled to own or occupy these premi-ses and to isolate him and place him in an independent positiondisabling him from making any valid and bona fide claim toremain in possession. It is therefore not surprising that the lowercourts have rejected the appellant's claim.
At the inquiry before the District Judge, the appellant placedin the forefront of his case his claim that he was in the premisesin his own right. The other position he took up that he was atenant, was a subsidiary one. This Certificate of Registration ofthe Business therefore is a vital document without which this casecannot be properly decided and it is inconceivable that any courtwould make a pronouncement on the issues that arose in this caseby shutting its eyes to all this material. I am therefore unable tosay that the Court of Appeal erred when it upheld the preliminaryobjection. Both the trial Judge and the Court of Appeal had alsoconsidered the facts with great care and I am again unable to saythat their decision on the merits is erroneous. We have thereforethe concurrent findings of fact of two courts rejecting the claimput forward by the appellant.
The lack of consistency and coherence in the appellant's case,as revealed by the contradictory nature of the material addu-ced by him, appears to be explicable in terms of a submissionMr. Jayewardene made to us. He submitted that it is generally
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known that tenants are sub-letting their houses in defiance of theRent Laws, by adopting various ruses and devices. The so-calledmanagement agreement is one such favourite device whereby atenant seeks to give to a third party exclusive occupation or posse-ssion of premises intended for his own occupation. Apart from theconflicting material produced by the appellant himself, the strangesilence and absence of any interest in this matter on the part ofMuttusamy's heirs lends further credence to this view.
In view of the fact that the preliminary objections are entitledto prevail, I do not think that we are now called upon to make apronouncement and to define our position as regards such shamtransactions. Suffice it is to say that the appellant's claim to be alicensee appears to be an afterthought put forward for the firsttime in the last stages of these proceedings. All. the circumstancesand the conduct of the parties negative any intention to createsuch a licence. In reality, Muttusamy and the appellant had agreedto create a sub-tenancy in favour of the appellant and the transac-tion has been disguised so as to appear as a simple managementagreement. The appellant has only himself to blame for his presentpredicament. If a person enters into a sham transaction, it oughtnot to surprise him if he were to find himself in a precarious posi-tion where he can neither achieve the desired result nor fall backon the purported transaction. There is nothing in the appellant'scase to help himself out of this situation. Even if his claim to be alicensee were to be considered, I do not think any court, havingregard to the circumstances of this case, would be prepared toconcede to him any proprietary right or interest (even of an equi-table nature) which is enforceable and valid against third parties.In the result, I am of the view that the Court of Appeal and thetrial Judge were right in their conclusions in rejecting the claimput forward by the appellant. I
I finally come to the preliminary objection taken by Mr. Jaye-wardene, namely that the present appeal is not properly constitu-ted. He submitted that what is involved in this case is an inter-locutory order.or judgment and the appellant should thereforehave obtained the Special Leave of this Court under Article 128(2)of the Constitution.- Instead, the appellant has got the leave of theCourt of Appeal in terms of Article 128(1), but this Mr. Jayewar-dene submits is of no avail. The question is whether the judgmentappealed from is a final judgment or an interlocutory judgment.The reported cases brought to our notice by counsel oh both sidesdo not deal with the interpretation of the present constitutionalprovisions. They are nevertheless sufficiently close so as to be ofsome help to us. Mr. Thiagalingam relied on the distinction some
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of these cases drew between on the one hand proceedings betweenthe parties to the original action and on the other hand procee-dings where third parties come in at the stage of execution procee-dings. Vide Marikar v. Dharmapala Unnanse, 36 N.L.R. 201 (2);Artis Appuhamy v. Siman, 48 N.L.R.298(3);Palaniappa Chetty v.Mercantile Bank of India, 43 N.L.R. 352(4); Usoof v. NadarajahChettiar, 58 N.L.R. 436(5). |n Subramaniam Chetty v. Soysa,25 N.L.R. 344(5) Bertram, C. J., appears to have come round tothis view, although he had expressed a different view in an earliercase – Arnolis Fernando v. Se/estina Fernando, (1922) 4 C. L. Rec.71(7). These decisions held that it was not the intention of theLegislature to deny a right of appeal to persons who were notparties to the original action and whose rights are affected byfinal orders made in proceedings arising out of the original action.A slightly broader view of what constitutes finality appears to betaken in Usoof v. The National Bank of India Ltd., 60 N.L.R.381<8) and in some Indian decisions. I think that the distinctionwhich Mr. Thiagalingam sought to draw is a valid one and suffi-cient for the purposes of the present case. I am therefore of theview that this appeal is correctly before us and the preliminaryobjection taken by Mr. Jayewardene fails.
For the above reasons I would uphold the judgment of theCourt of Appeal and dismiss this appeal with costs payable to theplaintiff-respondent.
WEERARATNE, J. – I agree.
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SHARVANANDA, J.
The plaintiff-respondent instituted this action on 18.10.79 againstthe defendant-respondent for a declaration of title in respect ofpremises bearing assessment No. 19, Galle Road, Bambalapitiya,for ejectment of the defendant and for damages. The premises areadmittedly business premises. In his plaint he stated that by deedof transfer No. 2208 dated 22nd February 1979, the defendantsold and conveyed the said premises to him, and by writing datedthe same day, the defendant undertook to give vacant possessionof the said premises to the plaintiff on or before the 30th day ofJune 1979. The defendant by his answer dated 19th December1979 admitted the sale and his undertaking to give vacant posse-ssion of the said premises to the plaintiff but stated that handingover of possession by him' was impossible. A consent decree wasentered on 19.12.79 declaring the plaintiff entitled to the saidpremises and ordering the defendant and all those holding underhim to be ejected from the said premises. The claim for costsand damages was withdrawn by the plaintiff. Writ of possessionwas taken out and when the Fiscal went to execute the writ on7.2.80, the petitioner-appellant resisted the execution of the writand refused to vacate the premises. The Fiscal in his report states:"There was one Mohamed Haniffa Rasheed Ali (petitioner-appel-lant) who said he is carrying on business in the premises on anagreement entered into between him and one SangaralingamMuttusamy. He produced agreement No. 182 (A4) dated 27.8.78attested by U.L.M. Farook, N.P., and duly registered in the LandRegistry. I requested him to vacate the premises, but he refused todo so. He said the premises had been obtained by S. Muttusamyfrom the defendant in this case." The Fiscal further states in hisreport that on that occasion the plaintiff, the judgment-creditor,made the following statement to him: "I bought these premisesfrom the defendant L. W. R. P. Marshall. At the time of purchase Iwas aware that the present occupants did not have any connectionwith the defendant or these premises." In the circumstances, on
the Fiscal was able to deliver only constructive possessionof the premises to the plaintiff. The plaintiff-respondent thereafterby his petition dated 5.3.80 instituted proceedings under section325 of the Civil Procedure Code pleading that the claim of thepetitioner-appellant to be in possession of the premises was frivo-lous or vexatious. The petitioner-appellant thereafter filed state-,ment of objections dated 19.3.80 justifying his possession of thepremises, inter-a/ia, on the following grounds:
The premises in suit is governed by the provisions of theRent Act.
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One S. Muttusamy was the tenant of the premises.
He has been placed in possession of the premises by
S.Muttusamy.
The said S. Muttusamy was collecting a sum of Rs. 1,300/-per mensem from him and paying a sum of Rs. 600/- toMarshall, the judgment-debtor.
He was in occupation of the premises with the knowledgeand acquiescence of the said Marshall.
In or about the end of 1978, Marshall had askedhim for anincreased rental and a sum of Rs. 750/- was paid by himdirect to Marshall for the month of January 1979.
Marshall also negotiated with him for the sale of the premi-ses in suit and agreed to sell the premises for Rs. 140,000/-,and a sum of Rs. 40,000/- was paid as an advance on 6.2.79.
He further stated: (a) that he had tendered the February rent toMarshall, but the latter had refused to accept same, (b) that a sumof Rs. 12,250/- was deposited with S. Muttusamy on account ofhis articles being placed in his possession, and (c) that the plaintiffwho was carrying on business in the adjoining premises was wellaware of his possession and occupation of the premises in suit.
At the inquiry into the plaintiff's application, Counsel for thepetitioner-appellant stated that the premises in suit was governedby the Rent Act and that the appellant was not bound by thejudgment entered into between the plaintiff and the defendantMarshall and that the appellant remained in the premises on hisown rights, or that he was there as a tenant of the defendantMarshall. The appellant gave evidence and stated that his busi-ness of New Wappa Hotel, whose registration certificate has beenmarked 2R1, was started on 23rd July 1975 and that he obtained,these premises from Muttusamy in pursuance of the first agree-ment No. 122 (A11A) dated 31st October 1975 and attested by
U.L. M. Farook, N.P., for three years, and the second agreementNo. 182 (A4) dated 27th July 1978 for a further period of threeyears, and that in January 1979, he paid Marshall Rs. 750/- asrent for the premises. By his order dated 1st August 1980, thelearned District Judge rejected the petitioner's objections and heldthat the claim of the petitioner to be in possession of the premiseswas frivolous or vexatious. He disbelieved the evidence of thepetitioner-appellant that he had paid the rent direct to'Marshallin January 1979 and become the defendant's tenant. With refe-rence to the petitioner-appellant's claim to be in occupation of
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the premises on the strength of the notarial agreements A11A andA4, the District Judge stated that since Muttusamy was dead andsince the heirs of Muttusamy were not claiming the tenancy on thedeath of Muttusamy, “it is not proved that the appellant is atenant or a sub-tenant."
As soon as the District Judge gave his order holding against thepetitioner-appellant, the petitioner-appellant by his petition of thesame date moved the Court of Appeal by way of revision to setaside the said order of 1.8.80. The application was supported thatdate itself and the Court directed issue of notice returnable on
and ordered the stay of execution proceedings pendingthe hearing of the application. The plaintiff-respondent did notwait till the notice returnable date, but filed his objections withthe necessary documents on 7th August 1980. The revision appli-cation was ultimately heard by the Court of Appeal on 8th and9th December 1980. By its judgment dated 30th January 1981,that Court affirmed the order of the District Judge and dismissedthe revision application with costs.
At the hearing of the revision application by the Court ofAppeal, Counsel for the plaintiff-respondent had taken a prelimi-nary .objection that a revision application did riot lie and that inany event the petitioner's application should be rejected on theground that the petitioner had not complied with the provisions ofRule 46 of the Supreme Court Rules of 1978 published in theGovernment Gazette of 8.11.78. He referred to section 329 of theCivil Procedure Code, which reads:
“No appeal shall lie from any order made under sections
326 and 327 against any party other than the judgment-debtor.
Any such order shall not bar the right of such party to institute
an action to establish his right or title to such property"
and submitted that the legislature, by making the order unappea-lable, intended the order to be final, and since the order of theDistrict Judge 1.8.80 did not bar the right of the petitioner-appellant to institute an action to establish his right to posse-ssion of the premises in suit, he was not without any remedy.He further objected that there were no exceptional circumstancesin this case to justify the exercise of its revisionary powers by theCourt of Appeal. In support of his objection he referred to thecase of Zahir v. Perera (73 N.L.R.' 424)0). The Court of Appealrejected the objection. It held that there were exceptional circums-tances present in this case calling for the intervention of the Courtby way of revision in the interests of justice. It reasoned: "If theorder of the District Judge was to stand, on the basis of thatorder the petitioner-appellant would be ejected and he will be out
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of possession of his business premises, thereby suffering irrepa-rable injury, and if the ultimate decision in the action institutedby him goes in his favour, it would turn out to be nugatory." Iagree that, in the circumstances of the case, the petitioner wasentitled to invoke the Court of Appeal to exercise its revisionarypower (Somawathie v. Cooray — 64 N.L.R. 495^0) and that ifthat Court was satisfied that the order of the District Judge couldnot be justified, it was bound to revise the order, as there wouldresult, if the order was allowed to operate, grave miscarriage ofjustice.
The Court of Appeal, however, upheld the other objection ofthe respondent that the application should fail for non-compliancewith Rule 46 of the Supreme Court Rules, 1978. Rule 46 readsas follows:
"Every application made to the Court of Appeal for theexercise of the powers vested in the Court of Appeal by Articles140 and 141 of the Constitution shall be by way of petition andaffidavit in support of the averments set out in the petition andshall be accompanied by originals of documents material to thecase or duly certified copies thereof in the form of exhibits."
In this connexion , reference was made to the judgment of theCourt of Appeal in Navaratnasingham v. Arumugam and another[1980] 2 Sri L.R. p.1) where non-compliance with thfe provisionsof Rule 46 was held to be fatal. Soza J., in the present judgment,correctly modified his earlier view expressed in the aforesaid casethat the provisions of Rule 46 were imperative, and added that"what I said in the judgment should be read subject to the princi-ple that the law does not expect a person to do what is impossibleand that there may be occasions when matters of grave urgencyarise where a party has to seek the revisionary powers of thisCourt but is left with no time to obtain the documents as requiredby Rule 46. On such an occasion, the Court, no doubt, will takea reasonable view of the matter and extend such indulgence as isnecessary to enable the petitioner to comply with the require-ments subsequent to the filing of the petition". I agree with thisobservation of Soza J. In the present case however, Soza J. heldthat if circumstances beyond his control prevented the petitionerfrom complying with Rule 46 at the moment of filing the appli-cation, he should yet have complied with it as soon as possible. Hereferred to Rules 50, 51 and 54 and said that there was provisionin the Rules for amendment to the petition or tender of additionalpapers with the permission of the Court to which a petitionercould resort so as to comply with Rule 46. In the instant case, the
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petitioner did not file along with his petition the "originals ofdocuments material to the case, or duly certified copies thereofin the form of exhibits," nor even later. In view of his reasonableapprehension that the order or the District Judge dated 1.8.80would be carried out without delay and that he would be ejectedand his application rendered nugatory by the delay involved ingetting the certified copies of documents filed in the DistrictCourt in connexion with the inquiry, the Court of Appeal accep-ted that the urgency of the situation excused his filing the appli-cation for revision without the exhibits referred to in Rule 46.However, it could not condone the petitioner's failure to file thoseexhibits later, after the petitioner had obtained a stay ofexecution from the Court. The excuse given by the petitioner wasthat, since the plaintiff-respondent had without waiting for thenotice returnable date rushed to Court on 7th August 1980 andfiled his objections with the certified copies of documents materialto the case, no useful purpose was served by duplicating thepapers. In this connection the Court of Appeal observed: "Itis true the plaintiff-respondent filed a statement annexing anumber of documents so as to present an adequate picture ofthe dispute between the parties. Yet, this does not absolve thepetitioner from complying with Rule 46 as soon as it was possiblefor him to do so." In my view, a party should ordinarily complywith the requirements of Rule 46, and if he fails to do so, hispetition is liable to be rejected, unless he had good reason forsuch non-compliance. It is a matter falling within the discretion ofthe Court whether, in the circumstances, the petitioner should beexcused or not for such non-compliance. In the instant case, I amsatisfied that the plaintiff-respondent, by furnishing to Court on
all the necessary exhibits, relieved the petitioner of therequirement to file the material documents. The Court was inpossession of the necessary material and hence it was notobligatory on the part of the petitioner to duplicate the exhibits.If the originals or certified copies of documents material to thecase have been filed of record by any party, whether petitioner orrespondent, and are available to Court for a proper appreciation ofthe issue involved in the application, the purpose of the require-ment of the petitioner filing those documents is satisfied. Aprocedural requirement should be construed literally. In my viewthe Court of Appeal has, in the circumstances, erred in upholdingthis preliminary objection. Counsel for the plaintiff-respondentfurther pointed out that in any event two documents, viz. certifi-cate of registration and copy of complaint to the Police in M. C.Colombo case No. 34213 marked 2R1 and 2R3, respectively, inthe inquiry proceedings, had not been furnished to Court in time.But, in view of the fact that these documents though marked in
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the lower court were not material to the decision in the case, inthe sense that they were not relevant to the contention pressed insupport of the petitioner's case and have no bearing on thequestion in issue before the Court, this failure to file thosedocuments does not justify rejection of the application. TheRules are designed to facilitate justice and further its ends; theyare not designed to trip the petitioner for justice. ~oo technical aconstruction of the Rules should be guarded against. Counsel forthe petitioner was content to confine his argument before thatCourt to the documents A11A and A4. The documents 2R1 and2R3 were not relevant for the arguments centering round thedocuments A11A and A4 and reference to them was notnecessary.
By its order dated 30.1.81, the Court of Appeal affirmed theorder of the District Judge and dismissed the application withcosts. On the date the judgment was delivered, Counsel for thepetitioner-appellant orally applied to that Court for leave toappeal to this Court. Counsel for the plaintiff-respondent statedthat he had no objection, and the Court granted leave to appeal.The present appeal has thus come to this Court with the leave ofthe Court of Appeal.
At the commencement of the hearing of the appeal, seniorCounsel for the plaintiff-respondent raised a preliminary object-ion to the appeal. He submitted that the order of the Court ofAppeal appealed from is an interlocutory order and that theCourt of Appeal had no jurisdiction to grant leave to appeal tothe Supreme court from such an order. He contended that thepetitioner-appellant should have sought and obtained the specialleave of this Court to appeal, and that since this appeal had notcome through that channel, the appeal should be rejected.
Under the provisions of Article 128 of the Constitution,an appeal lies to the Supreme Court from any final order orjudgment of the Court of Appeal, either with the leave of theCourt of Appeal or of the Supreme Court; and from an inter-locutory order/judgment of the Court of Appeal, only on specialleave being granted by this Court. Thus, the appellate jurisdictionof this Court can be invoked by a party to question an interlocu-tory order or judgment of the Court of Appeal only with thespecial leave of this Court. The Court of Appeal has no jurisdic-tion to grant leave to appeal from an interlocutory order orjudgment.
The foundation of Counsel's objection is the assumption thatthe order appealed from is an interlocutory order or judgment and
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not a final order or judgment. The main burden of his argumentwas that all steps taken after the final determination of the actionby judgment between the parties and all orders made thereonare interlocutory in their nature. He submitted that there cannotbe two judgments in an action, that the judgment entered in thepresent case in favour of the plaintiff against the defendant wasthe only final judgment in the action, and that the orders madethereafter in the course of execution proceedings were interlocu-tory orders, even though made against a person who was not aparty to the judgment. In support of his submission, he referred usto the case of Palaniappa Chetty v. Mercantile Bank of India Ltd.(43 N.L.R. 352)In that case, which was an action on a mort-gage bond, after the mortgage decree had been affirmed in appeal,the parties entered into an agreement with regard to the executionof the mortgage decree. Thereafter, application for execution ofthe mortgage decree was made in the District Court, and allowed.On appeal, the order allowing execution was affirmed. Theappellant thereupon applied for conditional leave to appeal to thePrivy Council from the order allowing execution. It was held thatthe order allowing execution was not a final judgment or orderwithin the meaning of Rule 1(a) of the Rules in the Schedule tothe Appeals (Privy Council) Ordinance. In that case, admittedly,the rights of the parties to the action had been finally determinedby the mortgage decree; the order allowing execution by thedecree-holder against the judgment-debtor related only to themanner of execution of the decree and hence was rightly heldto be an interlocutory order as it did not decide the rights of theparties. The case of Subramaniam v. Soysa (25 N.L.R. 344)'°)was distinguished. In the latter case, the Supreme Court, at theinstance of the execution-creditor, set aside the sale of thejudgment-debtor's property on the ground of material irregulari-ties in the conduct of the sale. The purchaser, who was a thirdparty, applied for conditional leave to appeal to the Privy Council.It was held that the order setting aside the sale was a finaljudgment within the meaning of Rule 1(a) in Schedule I of thePrivy Council Ordinance, on the ground that the order settingaside the sale finally disposed of the case between the parties tothe proceedings, that is to say, the purchaser and the execution-creditor.
In the case of Usoof v. Nadarajah Chettiar (58 N.L.R. 436)^),it was held that a judgment of the Supreme Court dismissing anappeal from an order of a District Court refusing to set aside thesale of a property belonging to the defendants in execution of adecree entered against them was a final judgment within themeaning of Rule 1 (a) of the Rules in the Schedule to the Appeals(Privy Council) Ordinance.
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Again, in Usoof v. National Bank of India Ltd. (60 N.L.R.581)(8) it was held that a judgment of the Supreme Court dis-missing an appeal from an order of the District Court refusing toset aside the sale of a property in execution of a mortgage decreeis a "final judgment" within the meaning of the aforesaid Rule1(a), although the property sold in execution was purchased bythe judgment-creditor himself and not by a third party. The factthat the property that was sold in execution of the decree waspurchased by the judgment-creditor himself and not by a thirdparty was held to make no difference to the nature of the orderon the sale.
In Krishna Pershad Singh v. Motichand ((1913) 40 Cal.635)^ 1) which was followed in Subramaniam v. Soysa (25 N.L.R.344) (supra) Lord Moulton, delivering the judgment of the PrivyCouncil, held that the order of the High Court refusing to setaside the sale where the property sold in execution of the decreewas purchased by the judgment-creditor was a final order whichdealt finally with the rights of the parties and that an appeal to thePrivy Council lay to the judgment-debtor.
In Ramchand Manjimal v. Gower Dhandas (A.I.R. (1920)P. C. 86)^2) Viscount Cave observed: "The question as to whatis a final order was considered by the Court of Appeal in the caseof Sa/aman v. Warner ((1891) 1 Q.B. 734) ^3)anc| that decisionwas followed by the same Court in the case of Bozon v. Altrin-cham U.D.C. ((1903) 1 K.B. 547) H4)# The effect of those andother judgments is that an order is final if it finally disposes of therights of the parties." In Abdul Rahman v. Cassim & Sons (A. I. R.(1933) P. C. 58)^5) prjVy Council stated that "the finalitymust be a finality in relation to the suit. If after the order the suitis still alive, a live suit in which the rights of the parties have stillto be determined, no appeal lies against it to the Privy Council asit was not a final judgment or order. Of these Privy Councildecisions, the decision in Krishna Pershad Singh v. Motichandrelated to execution proceedings. Referring to this decision,Sansoni J. in Usoof v. National Bank of India Ltd. (60 N.L.R.381 at 383(8) stated that he regarded that decision as authorityfor the view that there can be a final order or judgment even inexecution proceedings between the parties to the action. Rejec-ting the objection that the order refusing the judgment-debtor'sapplication to set aside the sale of property in execution of amortgage decree is not a final judgment, he relevantly observed:"It seems to me to dispose of the argument that when the mort-gage decree was entered in this action, it had been finallydetermined and^that there could be no further final judgment as
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between the parties. While it is true that a judgment is not finalunless it finally disposes of the rights of the parties, I do not seewhy there cannot be a final judgment in execution proceedingswhether those proceedings are between.the parties to the action ornot; and, so far as the judgment-debtors in this case are concerned,they have, by the judgment of this Court, finally lost their rightsin the mortgaged property, and execution proceedings are no .longer live proceedings". I respectfully agree with this statement.
In the case of Marikar v. Dharmapa/a Unnanse (36 N.L.R.201) (2) Garvin J. held that where a stranger to a decree claimedpossession of the premises in respect of which a writ of possessionwas issued in his own right and on the ground that the resistanceoffered by him was not at the instigation of the judgment-debtorbut in assertion of his own rights, an order rejecting his plea andcommitting him to prison under section 326 of the old Civil Proce-dure Code determined the proceedings in which the order was madeand that such order was a final order. He stated that after thedecree in a Court of Requests action, there may be executionproceedings in which judgments having the effect of finaljudgments may be passed. Dias J. in Artis Appuhamy v. Simon(48 N.L.R. 298) (3) followed the principle laid down in this case.
The judgment or order appealed against has determined theappellant's right to possess the premises in suit. True, the orderwill- not, by virtue of section 329 of the Civil Procedure Code,operate as res judicata in any action that may be instituted by himto establish his right, but, as far as this action is concerned, he isbound by the order whiqh has decreed him to be ejected and theplaintiff-respondent to be in possession. In relation to the presentaction, the order has finally disposed of the appellant's right topossess the premises in suit and the execution proceedings have .ceased to .be live proceedings. For the above reasons, I am of theview that the judgment or order in question is not an interlocu-tory order but is a final judgment or order within the meaning ofthose expressions in Article 128 of the Constitution and that itwas competent for the Court of Appeal to have granted leaveto appeal from the impugned order; The preliminary objectioncannot, in the circumstances, be sustained and is accordinglyoverruled.
In view of the above conclusion as to the nature or qualityof the judgment or order appealed against, it is not necessary toexamine the submission of Counsel for the appellant, that it doesnot lie in the mouth of the respondent to question the validity ofthe leave granted by the Court of Appeal, after his Counsel hadstated to that Court that he had no objection to the appellant's
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application for grant of leave by that Court, and the counter-submission of Counsel for the respondent that his consent didnot preclude him from asserting want of jurisdiction in the Courtof Appeal to grant the leave.
The facts of the case, so far as relevant to the question involvedin the appeal, are very simple and lie within a very small compassand have not been controverted by the plaintiff-respondent who,by the fact of his doing business in the premises adjoining thepremises in suit, was in a position to testify that the petitioner-appellant was not in occupation of the premises in suit from 1975on his own account running a hotel business on an agreement withMuttusamy, the tenant of the premises, as deposed to by himin evidence, if that was so.
Objecting to the plaintiff-respondent's section 325 applicationcomplaining of the petitioner's resistance, the petitioner-appellantclaimed to be in possession of premises No.19, Galle Road,Bambalapitiya, on his own account. He based his claim on twogrounds:
that he had been placed in possession of the premises byMuttusamy. He produced notarial agreement No, 182 dated27th August 1978 to substantiate such claim; and
that he had become the tenant of the premises by payingthe rental for January 1979 to the defendant-respondent,the vendor of the premises.
His evidence that in January 1979 he had become the tenant ofthe defendant-respondent is tenuous and has been rejected bythe trial Judge. Mr. Thiagalingam did not canvass this finding, buthe focussed on the other ground that Muttusamy, who was atenant of the defendant-respondent, had put the petitioner-appellant in possession of the premises as far back as 1975. Hereferred to the notarial agreement No. 122 dated 31st October1975 (A11A) whereby Muttusamy had let out the hotel businesscalled and known as 'Dhawalagiri Hotel' "with the furniture,fittings, effects and things fully described in the schedule theretoto the petitioner-appellant as from 1st November 1975 for aperiod of three years with immediate vacant possession" and thepetitioner-appellant had agreed to pay him a sum of Rs. 457-daily as commission-. On the expiry of the said 3-year period, alease of the business for a further period of three years was givenby the said Muttusamy to the petitioner-appellant by notarialagreement No. 182 dated 27th October 1978 (A4). In terms of thesaid notarial agreements, Muttusamy placed the petitioner-appellant in charge of the hotel business and gave over the manage-
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merit, control and conduct of the business for a period of threeyears; and to enable the petitioner-appellant to carry on the saidhotel business, he put the petitioner in possession of the premisesin which the hotel was being run. The said agreements providedthat "these presents shall bind the parties thereto and theirrespective heirs, executors and administrators firmly."
Under the notarial agreement No. 182 (A4), what was leasedwas "the hotel business carried on at premises No. 19, Galle Road,Bambalapitiya,"and hence the petitioner-appellant was entitled tocarry on the hotel business in the said premises until 31st October1981, and, for the purpose of carrying it on, it was necessary thathe should be in possession of the premises for that period. Thebusiness could not be conceived apart from the premises where itwas carried on. Both the District Judge and the Court of Appealdo not appear to have appreciated that, for the purpose of thebusiness leased out by the agreements A11A and A4, the petitionershould have possession of the premises where the business wascarried on and hence was put in possession of the premises for theperiods covered by the lease. It was not seriously disputed thatMuttusamy was a tenant of the premises in suit at all relevanttimes. It is true that Muttusamy died on 1st March 1979, buthis death did not affect the tenure of the lease agreement No. 182(A4). The heirs of Muttusamy stepped into the shoes of Muttu-samy. As the premises in suit is subject to the provisions of theRent Act, No. 2 of 1972, the heirs of Muttusamy are deemed tohave succeeded to the tenancy.of the premises in suit (section 36of the Rent Act of 1972). The death of Muttusamy did notterminate the lease of the hotel business, nor the licence to occupythe premises in suit granted to the petitioner-appellant by him.It was not a revocable licence which terminated with the deathof the grantor. The licence was an integral part of the lease of thebusiness and endured for the period of the lease. Muttusamy'srights and obligations passed to his heirs (clause 12 of A4), and the'petitioner-appellant continued to be a licencee of the premisesunder the heirs of Muttusamy. On the death of Muttusamy, thetenancy of the premises devolved on his heirs and the petitionercould remain in the premises until that tenancy was terminatedand decree entered against them. The petitioner-appellant couldnot be ejected from the premises by the landlord of the premises,viz. the defendant Marshall, or the plaintiff, unless and untildecree for ejectment of the tenant under the provisions of theRent Act was obtained. It is to be noted that the heirs of Muttu-samy were not made parties to the present action and hence theywere not bound by the decree entered in the case. The petitionerwho was holding under them was therefore not affected by sucha decree.
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The effect of a concluded contract of sub-tenancy is that thetenant, while remaining liable to the original landlord for thefulfilment of his own contractual obligations, has for the timebeing transferred to a sub-tenant the right to occupy the rentedpremises. A sub-tenant is not a trespasser and is, in law, not inwrongful possession. He is entitled to occupy the rented premisesso long as the tenant was entitled to occupy same, (vide Ibrahimv. Mansoor — 54 N.L.R. 217). A licensee under the tenant is in thesame position as the sub-tenant, as far as right to possession of therented premises is concerned, vis-a-vis the original landlord untila decree for ejectment has been entered against the tenant. Thus,as licensee under Muttusamy and his heirs, the petitioner-appella-nt continues in lawful occupation of the premises as against theplaintiff-respondent and is entitled to continue in occupationuntil the tenancy of Muttusamy's heirs has been determined anddecree for ejectment entered against them.
Section 36 of the Rent Act states that on the death of thetenant of business premises, the heirs or executor/administrator
of the estate of the deceased tenant "shall :be
deemed, for the purpose of this Act, to be the tenant of thepremises." The District Judge has erred in holding that the heirs ofMuttusamy had not become tenants of the premises on the deathof Muttusamy.
It is' not disputed that the petitioner-appellant has been inoccupation of the premises in suit at least from 1975 underMuttusamy. There has been no nexus between him and thedefendant-respondent. This is corroborated by the statement ofthe plaintiff to the Fiscal: "I bought these premises from thedefendant Marshall. At the time of the purchase. I was aware thatthe present occupants did not have any connection with the.defendant or these premises." The occupation of the premisesby the petitioner is referable to the aforesaid agreements A11Aand A4. The District Judqe had failed to draw the proper inferencesfrom the admitted facts of the case and is in error in holding thatthe agreement A4 of 1978 is not valid after the death of Muttu-samy. In affirming the District Judge's findings of fact, the Courtof Appeal has also erred.
The Court of Appeal has construed deed No. 182 (A4) as apartnership agreement. This construction is absolutely untenablein the light of the various clauses of that agreement and has notbeen supported by Counsel for the plaintiff-respondent. Theagreement provides for the handing over of the management andcontrol of the hotel business called and known as 'DhawalagiriHotel' carried on in premises No.19, Galle Road, Bambalapitiya.
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for a period of three years with immediate vacant possession tothe petitioner-appellant by Muttusamy, and for the petitioner-appellant to pay Rs. 45/- daily as commission and for Muttu-samy to pay the rent of the premises where the business wascarried on. According to the tenor of the agreement, duringthe said peridd of three years, the business was to be the businessof the petitioner-appellant. There was no question of the saidbusiness being carried on in common between Muttusamy and thepetitioner-appellant during that period. The evidence shows thatthe petitioner-appellant was from 1975 carrying on hotel businessnot under the name of Dhawalagiri Hotel' but as 'New WappaEating House'. The agreements Nos. 122 and 182 do not prohibitthe Detitioner-aDDellant carrvinq on hotel business under a nameother than that of Dhawalagiri Hotel and hence it was notwrongful for the petitioner-appellant to have, from 1975, carried. on the said business under the name of 'New Wappa EatingHouse.' In any event, the only person who could have objected toor complained of. the petitioner-appellant carrying on hotelbusiness under a different name in the premises in suit was Muttu-samy. But Muttusamy never objected to the new name of theHotel.
The Court of Appeal has observed that: "The position of thepetitioner, so far as the Court can ascertain it, is that he came inh§re to run the business called 'Dhawalagiri Hotel' in terms of apartnership agreement which he signed. The mutual obligations ofth two partners are set out in the deed. The petitioner alteredthe name of the business to New Wappa Eating House. The claimof the petitioner that he was a sub-tenant based on the deedNo. 182 of 27.9.78 was therefore rightly regarded as withoutany foundation/' A proper appreciation of the nature of therelationship between Muttusamy and the petitioner-appellantestablished by deed No. 182 of 27.9.78 (A4) does not warrantthis observation. The agreement has not been looked at in itsproper perspective. The conclusion both of the District Judgeand of the Court of Appeal that the claim of the petitioner-appellant to be in possession of the premises in suit is frivolous orvexatious is based on their erroneous conclusions and is notjustified by the admitted facts of the case. The agreement No. 182(A4) entitled the petitioner-appellant to be in lawful possession ofthe premises.
In the circumstances, this Court can properly, and indeedshould, reach its own conclusion by applying the law to theunquestioned facts, such as the occupation of the premises insuit by the petitioner-appellant on the strength of the lease agree-ments Nos. 122 and 182. This case is not one to which the rule
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as to 'concurrent findings' is applicable. Manifest and importanterrors of law and serious misdirection on the proper inference tobe drawn from undisputed facts committed by the courts belowinhibit this Court from attaching too much sanctity to theirconclusions. In the circumstances, to prevent a miscarriage ofjustice, this Court is compelled to review the conclusions of fact.In my view, far from the claim of the petitioner-appellant being'frivolous or vexatious/ it is well founded in law. The conclusionthat the resistance to the execution of the decree for possessionwas occasioned by the petitioner-appellant claiming in goodfaith to be in possession of the premises on his own account isirresistible.
I allow the appeal, set aside the judgment of the Court ofAppeal and the order of the District Court and dismiss the petitionof the plaintiff-respondent to the District Court. The plaintiff-respondent shall pay the petitioner-appellant the latter's' costsin this Court, in the Court of Appeal and in the District Court.
Appeal dismissed