006-SLLR-SLLR-1998-1-RUBBERU-AND-ANOTHER-v.-WIJESOORIYA.pdf
58
Sri Lanka Law Reports
(1998) 1 Sri LR.
RUBERU AND ANOTHER
v.WIJESOORIYA
COURT OF APPEAL
U. DE Z. GUNAWARDANA, J.
A. 130/97
C. COLOMBO 16738/LOCTOBER 07, 1997.
Ejectment of a licensee – obtaining a declaration of title to the land — Is it acondition precedent -S. 116 Evidence Ordinance – Amendment altering the scopeof the action – Civil Procedure Code S. 46 (2) – Duty to give reasons.
The learned District Judge ordered the amendment of the plaint on the basis thatthe plaintiff-appellant cannot eject a licensee without proving title and first gettinga declaration of title in respect of the premises in suit
On appeal.
Held:
Whether it is a licensee or a lessee, the question of title is foreign to asuit in ejectment against either. The licensee (defendant – respondent)obtaining possession is deemed to obtain it upon the terms that he willnot dispute the title of the plaintiff-appellant without whose permission hewould not have got it. The effect of S. 116 Evidence Ordinance is thatif a licensee desires to challenge the title under which he is in occupationhe must first quit the land. The fact that the licensee or the lessee obtainedpossession from the plaintiff-respondent is perforce an admission of thefact that the title resides in the plaintiff.
It is axiomatic that the plaintiff in any action is precluded from amendingthe plaint to enlarge the scope of the action or alter the basis thereofalthough he is at liberty to diminish or reduce its scope though an amendmentof the plaint.
Per Gunawardana, J.
CA
Ruberu and Another v. Wijesooriya
(U. de Z. Gunawardana, J.)
59
"If the plaint is amended as directed one can be sure of one thing, thatis that the amended plaint ought to be rejected for certain for the powerto amend pleadings is subject to the limitations imposed by S. 46 (2) CPCthat an amendment cannot be made which has the effect of convertingan action of one character into an action of another or inconsistentthereafter."
Per Gunawardana, J.
‘It is to be observed that in this case although the learned Additional DistrictJudge had stated that the plaint "was defective" she had not been graciousenough to give the faintest idea of the reasons that prompted her to sayso. The reasons ought be explicitly spelt out and should not be shrouded
in obscurityfrom the fact of the absence of express reasons for the
additional District Judge's view, the Superior Court is entitled to infer thatthe learned District Judge had no good reasons for her decision."
An APPLICATION for Leave to Appeal, Leave been granted.
Sanath Jayatilake for the petitioner.
Wijedasa Rajapakse with T. Bandara for the defendant-respondent.
Cases referred to:
1. Padifield v. Minister of Agriculture 1968 AC 997.
Cur. adv. vutt.
November 17, 1997
U. DE Z. GUNAWARDANA, J.
This is an application for leave to appeal against an order dated10.06.1997 made by the learned Additional District Judge of Colombowhereby she had ordered the amendment of the Plaint presumablyon the basis that the plaintiff-appellant cannot eject a licensee withoutproving title and first getting a declaration of title in respect of theland or premises in suit. At the hearing before me, i.e. on 07.10.1997,the learned counsel for the defendant-respondent – agreeing to thegranting of leave – the leave was accordingly granted and the matterwas thereafter argued. The learned Additional District Judge's orderin this regard is not as clear as one would have wished it to be andreads thus: ‘9 Scales yqj gerf-e&ca ©jS-fegtadj oi&&dc ffOadQO&eiSt^ ea>c58e® o^a>® ®a> <g£8ooJ ax5s»8af, eosos too
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Sri Lanka Law Reports
(1998) 1 Sri L.R.
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The learned Additional District Judge in the excerpt of her orderreproduced above, had stated that the plaint “appears to be defective”but stops short of explicitly pinpointing as to what exactly is the defect.But reading between the lines, so to speak, one gets the sense ofwhat the learned Additional District Judge means to say, i.e. that aspointed out above – the obtaining a declaration of title to the landin suit is a condition precedent to the ejectment of a licensee therefrom.Perhaps, one cannot conceive of a more erroneous view than that.That – in an action by the person who granted the licence orpermission to eject a licensee – the question of title (of the plaintiff)is wholly irrelevant is a rudiment of the law; a rule partaking of thecharacter of a first principle. Of course, the position of the defendant-respondent outlined in the answer, according to the submission madeto this court on 07.10.97 by the counsel for the defendant-respondent,was that the defendant-respondent was a lessee under the plaintiff-petitioner. (A copy of the answer has not been made available to us).
But whether it is a licensee or a lessee, the question of title isforeign to a suit in ejectment against either. The licensee (the de-fendant-respondent) obtaining possession is deemed to obtain it uponthe terms that he will not dispute the title of him, i.e. the plaintiff-appellant without whose permission, he (the defendant-respondent)would not have got it. The effect of the operation of section 116 ofthe Evidence Ordinance is that if a licensee desires to challenge thetitle under which he is in occupation he must, first, quit the land. Thefact that the licensee or the lessee obtained possession from theplaintiff-appellant is perforce an admission of the fact that the titleresides in the plaintiff. No question of title can possibly arise on thepleadings in this case, because, as the defendant-respondent hasstated in his answer that he is a lessee under the plaintiff-appellant,he is estopped from denying the title of the plaintiff-appellant. It isan inflexible rule of law that no lessee or licensee will ever be permittedeither to question the title of the person who gave him the lease orthe licence or the permission to occupy or possess the land or toset up want of title in that person, i.e. of the person who gave thelicence or the lease. That being so, it is superfluous, in this action,framed as it is on the basis that the defendant-respondent is alicensee, to seek a declaration of title.
CA
Ruberu and Another v. Wijesooriya
(U. da Z. Gunawardana, J.)
61
Furthermore, the direction of the learned Additional District Judgeto amend the plaint and seek a declaration of title, if followed, willin fact, be self-destructive, from the standpoint of the plaintiff-appel-lant, for no amendment of the plaint can be accepted which altersthe scope of the action by enlarging it, which rule too is as basicas the principle that in an action by the person who gave the licenceto eject the licensee there is, perhaps nothing more irrelevant thanthe question of title of the plaintiff, i.e. the person who granted thelicence. In any event, it is axiomatic that the plaintiff in any action,for that matter, is precluded from amending the plaint to enlarge thescope of the action or alter the basis thereof although he is at liberty,in appropriate circumstances, to diminish or reduce its scope throughan amendment of the plaint. For example, the plaint in a rei vindicatioaction where the declaration of title is sought, can be subsequentlyaltered to a possessory action – for rei vendicatio action encompassesboth title and possession but not vice versa, i.e. one cannot amendthe plaint in a possessory action and seek a declaration of title tothe property in question not only because the substance of the twoactions are different but also because the scope of a rei vindicatioaction is larger than that of a possessory action.
If the plaint is amended as directed by the learned Additional DistrictJudge one can be sure of one thing if of no other, that is, that theamended plaint ought to be rejected for certain for the power to amendpleadings is subject to the limitation imposed by section 46 (2) ofthe Civil Procedure Code that an amendment cannot be made whichhas the effect of converting an action of one character into an actionof another or inconsistent character.
For the aforesaid reasons the said order of the learned AdditionalDistrict Judge dated 10.06.1997 is hereby set aside. Further, she isdirected to try the action on the issues that had already been raisedexcept that she is ordered to answer issue No. 09 in conformity withthis order. The defendant-respondent is ordered to pay the plaintiff-appellant costs in a sum of Rs. 5,250/-. I
I wish to add this as somewhat a postscript in order to impressupon the judges in the trial courts their duty to give reasons for theirdecisions – for their decisions are subject to review by Superior Courts.But for a challenge to be mounted the reasons are obviously essential.It is to be observed that in this case although the learned Additional
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Sri Lanka Law Reports
(1998) 1 Sri L.R.
District Judge had stated that the plaint “was defective” she had notbeen gracious enough to give the faintest idea of the reasons thatprompted her to say so. The reasons ought be explicitly spelt outand should not be shrouded in obscurity. It is highly desirable thatreasons are given for decisions not only because that will facilitatematters from the standpoint of the Appellate Court in considering thecorrectness of the impugned decision but also because existence ofreasons will tend to support the idea that justice is seen to done anddone on a rational basis. If there has been a failure on the part ofthe trial Judge to act or decide correctly – furnishing of reasonswill often provide subsequent grounds of appeal. The reasons willimmeasurably assist the Court of Appeal in its task of scrutinising thelegality of the order made in the courts below for if reasons are rightit may safely be concluded that decision based thereon is also right- although one cannot wholly rule out the prospect of there beingright (ultimate) decisions despite the fact that the reasons therefor arewrong.
From the fact of the absence of express reasons for the learnedAdditional District Judge's view the Superior Court is entitled to inferthat the learned trial judge had no good reasons for her decision.It is said that an authority or body, upon which it is incumbent togive reasons for its decision, fails to give reasons because it has noneto give. That was the view expressed in the landmark decision inPadfield v. Minister of Agriculture<1> which, of course, concerned thecorrectness or otherwise of the decision not of a court of law, as such,but that of a minister where, too, no reasons had been given forthe minister's decision. Above all, reasons arenecessary to show that the court has acted lawfully.
Appeal allowed.