042-SLLR-SLLR-1989-V-2-MOHAMED-v.-SENEVIRATNE.pdf
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Mohamedv. Seneviratne
389
MOHAMED ,
v.SENEVIRATNE
SUPREME COURT
RANASINGHE, C.J., JAMEEL, J. AND AMERASINGHE, J.
S.C. fJO. 45/88
A. L.A. APPLICATION NO. 14/88
C. COLOMBO NO. 4459/REMAY 30, 1989
Landlord and tenant – Execution of decree – Stay pending appeal – Judicature Act(amended by Act, No. 37 of 1979) S.23 – Civil Procedure Code (amended by Act,No. 53 of 1980) Section 763(2) – Substantial loss.
The plaintiff obtained judgment and decree for ejectment on the ground of reasonablerequirement of the premises against his tenant the defendant who however appealedagainst this decree. The plaintiff however obtained writ of ejectment pending appeal.The defendant appealed against this order and his appeal was dismissed. The defen-dant then sought special leave to appeal from this ord,er.
Held:
The lodging of an appeal from the judgment of the District Court by an aggrievedparty does not, ipso facto, have the effect of staying, the execution of suchjudgment or decree during the. pending of the. appeal. The District Judge,however, has the power to stay the execution of a decree pending appeal if he"shall see fit" (Sec. 23 of the Judicature Act), as where the judgment debtor"satisfies" the District Judge that “substantial loss may result to the judgment -debtor, unless an order for stay of execution is made (Sec. 763(2) C.P:C.)
The facts were that the plaintiff occupied premises belonging to her; thedefendant had shifted to .the present premises in suit, to accommodate theplaintiff's request, from another premises No. 8/2, Ascot Avenue belonging to theplaintiff; the defendant had offered to go back to the old premises; plaintiff wantedreally to sell the premises in suit; defendant had four school going children.Eviction Jn the circumstances would result in considerable loss and damage to thedefendant.
Cases referred to:-
Charlotte Perera v. Thambiah [1983] 1 Sri LR 352
Saleem v. Balakumar [1981] 2 Sri LR 74.
APPEAL from order Appeal Court
P.A.D. Samarasekera. P.C. with J. de A. Gunaratne and Parakrama Agalawatta fordefendant petitioner-appellant
A.K. Premadasa. P.C. with Ms. S. Abeyratne for plaintiff-respondent.
Cur. adv. vult.
390
Sri Lanka Law Reports
f1989)2SriLR
June 16, 1989.
RANASINGHE, C.J.,
The Plaintiff-Appellant instituted these proceedings, on the 28th ofNovember 1980,forejectment ofhertenant,the
Defendant-Appellant, from premises bearing No. 24 Boteju Road,Thimbirigasyaya, ontheground that thesaidpremisesare
reasonably required by her and the members of her family for theiroccupation.
The Defendant-Appellant filed answer praying for a dismissal of thePlaintiff-Respondent's action.
After trial, judgment was entered on 25.7.1986 for thePlaintiff-Respondent. The Defendant-Appellant appealed from thesaid judgment and decree to the Court of Appeal; and the saidappeal is still pending before the Court of Appeal.
Plaintiff-Respondent has, in the meantime, filed this application forthe execution of the decree of the District Court pending such appeal.The Defendant-Appellant resisted the said application. After inquiry,the District Court, on 9.2.89, allowed the said application; anddirected that writ to issue as moved for by the Plaintiff-Respondent.
An appeal filed by the Defendant-Appellant, against the said Order,dated 9.2.88, was dismissed by the Court of Appeal on 23.9.88. TheDefendant-Appellant has thereafter obtained special leave to appealto this Court from the said Order of the Court of Appeal:
The provisions relating to the execution of a decree of the DistrictCourt pending an appeal are now embodied in Section 23 of theJudicature Act No. 2 of 1978, as amended by Act No. 37 of 1979,and in section 763(2) of the Civil Procedure Code, as amended byAct No. 53 of 1980.
' The lodging of an appeal from a judgment of the District Court byan aggrieved party does not, ipso facto, have the effect of staying theexecution of such judgment or decree during the pendency of theappeal. The District Judge, however, has the power to stay theexecution of a decree pending appeal if he "shall see fit” to make anorder to that effect (Section 23 of the Judicature Act), or where thejudgment-debtor "satisfies" the District Judge that "substantial lossmay result to. the judgment-debtor, unless an order for stay ofexecution is made” (Section 763(2) of the Civil Procedure Code).
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Mohamed v. Seneviratne (Ranasinghe, C.J.)
391
These provisions have been considered by this Court in the case ofCharlotte Perera vs. Tambiah(1); and by the Court of Appeal in thecase of Saleem vs. Balakumar{2). It is clear that these two provisionsare not ‘‘linked” and that an order for stay of execution pending^appeal could be made by the District Court under either of'these twosections.
The learned Additional District Judge, who made order refusing theapplication for stay of execution of the writ, has done so on thegrounds: that no “substantial loss” has been proved: and that “nosubstantial question of law" has been shown to arise.
The Defendant-Appellant has, in the petition of appeal, averred thatthe learned trial judge has misdirected himself on the question of thereasonableness of the Plaintiff-Respondent’s requirement of thepremises in suit.
Learned Counsel for the Defendant-Appellant has submitted that, inconsidering this all important question, ; several facts andcircumstances which were led in evidence at the trial, namely: thatthe Plaintiff-Respondent is at present in occupation of premis.es whichtoo belong to her: that the Defendant-Appellant had at first been atenant of the Plaintiff-Respondent in respect of premises bearing^No.8/2 Ascot Avenue – which are the premises occupied' at presentby the Plaintiff-Respondent and are said to be unfit for occupationany further by any one – and had, at the request of thePlaintiff-Respondent, handed them back to the PlaintifTRespondehtand moved into the premises in suit: that the Defendant-Appellanthas offered to go into occupation of the said premises bearing No.8/2, Ascot Avenue: that the Defendant-Appellant maintained that thePlaintiff-Respondent’s demand for the premises in suit is reallymotivated by her. desire to sell the said premises bearing No. 8/2,Ascot Avenue, were all very material factors to be considered indeciding the question of the reasonableness of ' the ■PlaintifTRespondent’s demand; and that, the learned trial Judge hasmisdirected himself on this question.
The learned Additional District Judge has placed an interpretationupon the document ‘D1’, the contents of which are strongly relied onby the Defendant-Appellant to challenge the bona tides of thePlaintiff-Respondent’s assertion that the premises in suit arereasonably' required as a residence for herself and the members ofher family.
392
Sri Lanka Law Repons
l1989)2SriLR
The learned Additional District Judge seems also to have beeninfluenced by the direction given by the trial Judge to thePlaintiff-Respondent to pay a sum of money equivalent to five years'rent to the Defendant-Appellant, to enable the Defendant-Appellant tofind alternative accommodation.
The ground so urged on behalf of the Defendant-Appellant, thoughit may not strictly constitute a “substantial" question of law, isnevertheless a serious question of law which arises and which mustbe considered in the determination of the appeal filed by theDefendant-Appellant.
Furthermore, the learned Additional District Judge has, in his orderstated that “no substantial loss of any sort has been urged by theDefendant” and that “by substantial loss is not meant the obviousand ordinary discomfort which any tenant may undergo having toleave the premises which he had occupied for sometime and havingto find alternative accommodation.” The Defendant-Appellant hasstated in evidence that he has four school-going children. Even if theDefendant-Appellant has not proved by express evidence the natureand the extent of the loss he would suffer, as a result of being ejectedfrom the premises in suit which he had been in occupation of fromthe year 1976, and into which, he had, as already stated, voluntarilymoved in order to accommodate the Plaintiff-Respondent, yet, thedispossesion of the Defendant-Appellant, with his school-goingchildren, from the said premises ‘without the prospect of a roof overtheir heads, even though it may not be for a long period of time, mustinevitably result in considerable loss and damage being caused tohim.
Having regard to the foregoing, it seems to me that, had theAdditional District Judge considered the matters set out above in theirproper perspective, he would undoubtedly have seen it “fit” to let thestatus quo remain until the issues between the parties are finallydetermined by the appellate courts.
I, therefore, make order allowing the appeal of theDefendant-Appellant. The orders made both by the Additional DistrictJudge, dated 9.2.88, and by the Court of Appeal dated 23.9.88, areset aside.. The execution of the decree of the District Court, whichhas been appealed from, is directed to be stayed pending the finaldetermination of the said appeal. Upon the receipt of the record ofthis case in the District Court the Defendant-Appellant is directed to
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Mrs. W.M.K De Silva v. Chairman, Ceylon Fertilizer Corp.
393
enter into the bond which would be considered necessary by thelearned Additional District Judge, in terms of the provisions of theaforesaid Section 23 of the Judicature Act."
The costs of the inquiry before the District Court into theDefendant-Appellant’s application for execution of the decree pendingappeal, and also the costs of the appeal, against the Order of the'-District Court dated 9.2.89, to the Court of Appeal and to this Courtshall be costs in the cause.
JAMEEL, J., – I agree.
AMERASINGHE, J., – I agree.
Appeal allowed.
Execution stayed.