SALEEM v. BALAKUMAR

009-SLLR-SLLR-1981-2-SALEEM-v.-BALAKUMAR.pdf


74
Sri Lanka Law Reports
(198V2S.LR.
SALEEM
v.BALAKUMAR
COURT OF APPEAL.
ABDUL CADER, J. ANO SENEVIRATNE, J.
C. A./L.A. APPLICATION 56/81 -D.C. COLOMBO 2764/RE.JULY 21.1981.
Civil Procedure Code, sections 754, 756—Application for leave to appeal from order ofDistrict Court issuing writ of ejectment against tenant—Writ issued pendingappeal—Action based on section 29 of Rent Act—Agreement relied on by landlordchallenged by tenant as being contrary to Prevention of Frauds Ordinance—SubstantialQuestion of taw to be determined—Leave to appeal granted.
The defendant-petitioner sought for leave to appeal against an order of the DistrictCourt allowing issue of writ of ejectment against him. The plaintiff-respondent had filedthis action against the defendant-petitioner for ejectment relying on section 29 of RentAct, No. 7 of 1972; judgment had been entered in favour of the plaintiff and thedefendant had appealed against the said judgment.
It was submitted on behalf of the defendant-petitioner, inter alia, that the agreementsued upon, violated the provisions of the Prevention of Frauds Ordinance as it was notnotarialiy attested and therefore was not an enforceable agreement. Reliance was alsoplaced on a judgment reported in 63 N.L.R. 548. The application for leave to appealwas opposed by the plaintiff-respondent.
Held
in this case the very agreement on which the plaintiff reliefs to seek judgment is beingassailed as being contrary to law and this was a substantial question of law to beadjudicated upon at the hearing of the appeal. The premises were not excepted premisesand if the defendant-petitioner's submission was upheld then he would be a statutorytenant entitled to the protection of the Rent Act. Accordingly leave to appeal shouldgranted in the circumstances of this case and writ stayed till the disposal of the appeal.
Casa referred to
Vethamanickam v. Dawoodbhoy, (1962) 63 N.L.R. 548.
APPLICATION for leave to appeal from an order of the District Court, Colombo.
C. Ranganathan, Q.C., with N. S. A. Goonetilleke and J. P. de Almeida, for thepetitioner.
A. K. Premadasa, with T. B. Dillimuni, for the respondent.;
Cur. adv. vult.
August 13,1981
ABDUL CADER, J.
The plaintiff-respondent filed action against the defendant-petitioner for ejectment, relying on section 29 (2) of the Rent
CA
Salaam v. Baiakumar IAbdul Cader, J.)
75
Act, No. 7 of 1972. On a written agreement entered into by thedefendant-petitioner, the defendant-petitioner agreed to returnthe premises to the plaintiff-respondent on her return toSri Lanka. Judgment was entered in favour of the plaintiff andon an application made by the plaintiff-respondent for issue ofwrit, .the learned District Judge allowed the execution of thedecree subject to the deposit of a sum of Rs. 250,000 assecurity.
The defendant-petitioner sought leave of this court to appealagainst that order. At the hearing before us, counsel for thedefendant-petitioner raised three issues as worthy of considerationin appeal:
the plaintiff was not properly before court as the agreementwas made with the plaintiff's father and not with theplaintiff;
the agreement was not registered properly with theColombo Rent Board in terms of section 29; and
that the agreement violated the provisions of sub-section (2)of the Statute of Frauds as it was not notarially attestedand, therefore, was not enforceable and therefore no writ
can issue.
Although we heard counsel on the first two points, we do notpropose to make any order in respect of those in these proceedings.
In respect of the third contention, counsel submitted that,although section 763 of the Civil Procedure Code as amended bysection 53 of 1980 states that "The Court may order execution tobe stayed upon such terms and conditions as it may deem fitwhere—
the judgment-debtor satisfies the court that substantialloss may result to the judgment-debtor unless an order forstay of execution is made—"
this section is not exhaustive in respect of the relief availableto the judgment-debtor. He referred us particularly to thejudgment of T. S. Fernando, J. in Vethamanickam v. Davoodbhoy
and submitted that the Court has a very wide discretion to
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Sr/ Lanka Law Reports
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grant relief to a tenant, and, therefore, the Court should take intoconsideration the hardships caused to the defendant if thedefendant is ejected from the premises. He also pointed out theword "may" in the clause quoted by me and the requirement onthe plaintiff to make the defendant a respondent, all point to awide discretion in favour of the tenant if good cause is shown bythe tenant.
We do not propose to come to any decision on this contentionbecause, even assuming that Mr. Ranganathan is riqht, we are ofthe opinion that section 29 of the Rent Act limits such a widediscretion in the District Judge. Section 29 was amendinglegislation introduced to help landlords as against the hardshipscaused to them by the Rent Act which was tilted very much infavour of the tenant. This section was introduced so that landlordscould enter into enforceable agreements requiring the tenant tovacate the premises. Thus, section 29 (3) states the tenant isobliged to vacate the premises at the end of such period specifiedin such agreement, or, as the case may be, on the happening of theevent specified therein.
But in this case, the very agreement on which the plaintiffrelies to seek ejectment is being assailed as being contrary to thelaw. Counsel for the plaintiff-respondent submits that there is norequirement to enter into a notarial agreement as the agreement inquestion is not a lease as set out in terms of section 2 of thePrevention of Frauds Ordinance and that even if the Court is ofthe view that this agreement is in the nature of a lease, since in thisparticular case the agreement provides for the return of thepremises on the plaintiff's return to the Island, this could wellhave happened within a month of the date of the agreement soas to take it out of section 2.
It is not for us to express an opinion on this question at thisstage. Though this is not a binding opinion, Rustomjee's expositionof the Rent Act, No. 7 of 1972, has expressed the view at page 80that the agreement referred to in section 29 (2) must comply withthe provisions of section 2 of the Prevention of Frauds Ordinancein order to bind the tenant with regard to his obligations to vacatethe premises. We are of the opinion that this is a substantialquestion of law to be adjudicated in appeal.
CA
Saleem v. Balakumar (Abdul Cadet, J.)
77
It was not contended before us that if we hold against thepla i nti ff-respondent on th is poi nt, even thentheplainti ff-responde ntwould be entitled to writ of execution. These premises are notexcepted premises and, therefore, if it is found that the agreementrequires a notarial attestation, then the defendant would be astatutory tenant and, consequently, entitled to all the protectionof the Rent Act.
We grant the defendant-petitioner leave to appeal and we staythe execution of the writ till the disposal of the appeal.
We direct the Registrar to accelerate the typing of the appealbriefs and list this appeal for argument as early as possible.
SENEVIRATNE, J.-l agree.
Leave to appeal granted.