A. ABEYSINGHE, Appellant, and N. C. D. B. GUNASEKARA, Respondent

072-NLR-NLR-V-64-A.-ABEYSINGHE-Appellant-and-N.-C.-D.-B.-GUNASEKARA-Respondent.pdf


SANSON!, J.—Abeysinghe v. Gunaselara
427
1962Present : Sansoni, J.
A. ABEYSINGHE, Appellant, and N. C. D. B. GUNASEKARA,
Respondent
S. C. SO 161—C. 21. Colombo, 770S2
Rent Restriction {Amendment) Act, No. 10 of 1961—Section 13 (3)—Retrosjiectiveeffect—Meaning and effect of the word “ pending ”.
Section 13 sub-section (3) of the Rent Restriction (Amendment) Act, No. 10 of1901, expressly makes an}' action or proceedings instituted on or after 20thJuly I960 and pending on 30th April 1901 null and void. Nothing more isnecessary to make the operation of this sub-section retrospective even to theextent of affecting an acquired right to recover possession.
The entering of a judgment in an action does not in all cases put an end tothe pendency of that action, and whether it does so or not can only be decidedafter considering the relevant statute. An action filed by a landlord in respectof rent-controlled premises must be regarded as pending within the meaning ofsection 13 (3) of the Amending Act No. 10 of 1961, if judgment was enteredprior to 1st May 1961 but petition of appeal was filed within time but after 30thApril 1901.
-A.PPEAL from a judgment of the Court of Requests, Colombo.
G. T. Sameraivickreme, with D. R. P. Goonetilleke, for the Defendant-Appellant.
Ranganathan, for the Plaintiff-Respondent.
Cur. adv. vult.
December 14, 1962. Sansoni, J. —
This is an action filed by a landlord on 9tli August, 1960, againsthis tenant in respect of premises to which the Rent Restriction ActNo. 29 of 1948 applies.
The landlord claimed that the premises were reasonably required forhis use and occupation, and he asked that the tenant be ejected on thisground. After trial, the Commissioner gave judgment for the landlordas prayed for with costs on 26th April, 1961. In the meantime theRent Restriction (Amendment) Act, No. 10 of 1961 had been passedand it was to come into operation on a date to be appointed by theMinister.
By a notification dated 28th April, 1961, the Amending Act wasbrought into operation from 1st May, 1961. Section 13 (3) of the Amend-ing Act reads :
“ Where any action or proceedings instituted in any court on orafter the twentieth day of July, 1960, for the ejectment of a tenantfrom any premises to which the principal Act applies on any ground
428
SANSONI, J.—Abeysinghe v. Qunasekara
other than a ground specified in sub-section (1) of this section is oraxe pending on the day immediately preceding the date of commence-ment of this Act, such action or proceedings shall be deemed at alltimes to have been and to be null and void.”
The grounds specified in Sub-section (1) of Section 13 are :—
(а)that the rent of such premises has been in arrears for three months ;
(б)that the premises have been used for an immoral or illegal purpose ;
that wanton destruction or damage has been caused to the premises.
This action was not filed on any of the grounds specified in Section13 (1), and the question that arises is whether any action or proceedingswere pending on 30th April within the meaning of Section 13 (3), for,if they were, they “ shall be deemed at all times to have been and tobe null and void.”
On the preliminary point whether this Court can give effect on thisappeal to the terms of Section 13 (3), notwithstanding that this provisioncame into effect after the judgment of the lower Court was delivered,I have no doubt that it must do so if the facts of the case demand it andthe provisions of Section 6 of the Interpretation Ordinance, Cap.j2,are satisfied. I have nothing to add to what I have said in NawadunKorale Co-operative Stores XJnion, Ltd. v. W. M. Pre^naratne 1. Section] 13sub-section (3) expressly makes any action or proceedings institutedon or after 20th July, 1960, and pending on 30th April, 1961, null andvoid. Nothing more was necessary to make the operation of this sub-section retrospective, even to the extent of affecting an acquired rightto recover possession. The words used by Lord Radcliffe in Shanmugamv. Commissioner for Registratio?i of Indian and Pakistani Residents2make the position quite clear : “ To be * express provision 5 with regardto something it is not necessary that that thing should be specially men-tioned ; it is sufficient that it is directly covered by the language howeverbroad the language may be which covers it so long as the applicabilityarises directly from the language used and not by inference therefrom.”
Tile main question for decision is whether this action was pending on30th April, 1961, even though judgment had been delivered in thePlaintiff’s favour on 26th April, 1961.
I was at first inclined to think that the action was no longer pendingonce judgment had been delivered; and I was probably influenced; bythe many judgments of this Court which have held that Section 404 ofthe Civil Procedure Code, which deals with the “ assignment, creation or. devolution of an interest pending the action,” applies only to assignmentsetc. before decree. One of the earliest judgments which so held wasthat of Bonser, C.J. in Gooneratne v. Perera 3. Subsequent judgmentshave followed this decision. But Bonser C.J. also said that had thissection stood alone, he would have been inclined to interpret the wordsas signifying at any time before the decree was finally executed. It
{1954) 55 N. L. R. 505 at page 509.• (1962) 64 N. L. R. at 33.
3 {1896) 2 N. L. R. 185.
SANS ONI, J.-—Abeysins/he v. Ounasekara
429
was only when he considered the words with the other sections in thechapter in which* they occur, that he found it impossible to come to anyother conclusion than that the words meant before final decree.
The learned Chief Justice was applying a well-established rule ofinterpretation which requires that in considering the meaning of a wordor words in a statute one should not take them “ in vacuo, so to speak,and attribute to them what is sometimes called their natural or ordinarymeaning. Few words in the English language have a natural or ordinarymeaning in the sense that their meaning is entirely independent of theircontext ”—per Lord Greene, M.R. in re Bidie l. A word takes its colourand content from the context in which it is found, and it is all-importantthat the final interpretation should not be arrived at without payingdue attention to the contextual scene.
Now it is only too clear from the authorities that the words “ pendingaction ”• often bear the meaning “ while the action is not ended.” Forinstance, in the application of the principle of lis pendens, an action isregarded as pending from the time of its institution up to its final settle-ment! in execution. This Court has held in Saravanamuttu v. Solamuttu 2,that in the case of a mortgage action the doctrine of lis pendens operatesafter '.judgment and up to the conclusion of execution, just as it is deemedto prevail in the interval between the final decree subject to appeal andthe appeal. The policy that underlies the doctrine is that there willbe no end to litigation if unrestricted alienation is permitted. dining itspendency. Again, in the field of contempt, a criminal case is regardedas pending while the time for appealing has not run out, and certainly,in the case of a man who is appealing or proposing to appeal. The rulein such a case is that the proceedings are pending at any time whenthere is an opportunity for appeal. In Delbert-Evans v. Davies andWatson 3, Humphreys J. referred to the rule that between convictionand appeal the case is not ended at all, it is still sub judice.
The view that a cause is still pending, even though final judgment hasbeen given, provided that the judgment has not been satisfied, was alsotaken in the case of Salt v. Cooper 4. Jessel, M.R. had in that case tointerpret- Section 24 (7) of the Judicature Act, 1873 which read :
t. I
'■ The High Court of Justice and the Court of Appeal respectively,in the ‘exercise of the jurisdiction vested in them by this Act in everycause or matter pending before them respectively, shall have power togrant, and shall grant, either absolutely or on such reasonable termsand conditions as to them shall seem just, all such remedies whatsoeveras any of the parties thereto may appear to be entitled to in respect ofany and every legal or equitable claim properly brought forward bythem respectively in such cause or matter ; so that, as far as pos-ible,all matters so in controversy between the said parties respectivelymay be completely and finally determined, and all multiplicity oflegal proceedings concerning any of such matters avoided.”
1 (1949) Oh. 121 at p. 129.8 (1945) 2 A. E. R. p. 167.
* (1924) 26 N. L. R. 385.« (18SO) 16 Oh. Div., 554.
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SANS ONI, J.—Abeysinghe v. Ounasekara
In the course of his judgment he said “ A cause is still pending eventhough there has been final judgment given, and the Court has verylargo powers in dealing with a judgment until it is fully satisfied.” Hepointed out that in putting a construction upon the Act, one must haveregard to the purview of the Act, and especially to the expressed intentionof the Legislature in passing it. Express provision is not necessary,and Parliament rarely states explicitly what its intention is—that has tobe’gathered from what it expressly says. The case of Saltv. Cooper (supra)was referred to by the Privy Council in Ponnamma v. Antmugam 1, andthe purport of the decision of the earlier case was said to be that a causein which judgment had been given is still pending within the meaningof the rule relating to execution of judgments provided that the judgmenthas not been satisfied. It is relevant to point out here that althoughthe Plaintiff had obtained his judgment before the amending Act cameinto operation, the judgment had not been satisfied by the Defendantgiving up vacant possession. This case is then authority for the viewthat the action is still pending.•
The last case I need refer to is Polini v. Gray 1 2 3. The claimants to afund in that action failed in the Court of first instance and in the Court, ofAppeal and were about to prosecute an appeal to the House of Lords.They alleged that their appeal would be nugatory if the fund was paidout to the Defendants, and they applied to the Court of Appeal to staythe distribution of the fund until the decision of the appeal which wasto be brought. It was held that the Court had the power to suspend whatit had declared to be the right of one of the litigant parties on the principlethat “ when there is an appeal about to be prosecuted, the litigation is tobe considered as not at an end.”
Although none of these authorities is precisely in point, they do suggestthat the entering of judgment in an action does not in all cases put anend to the pendency of that action, and whether it does or not can onlybe decided after considering the relevant statute. When I come, toconsider the particular matter under appeal, I think it is obvious thatAct No. 10 of 1961 was passed in order to afford further and early reliefto tenants of premises to which the principal Act applied. Tenants whohad been in arrears of rent were granted further concessions in order toavoid the termination of the tenancy. But most drastic of all were theamendments brought in by Section 13 of the amending Act which wasgiven retrospective effect as from 20th July, 1960. They renderedpending actions for ejectment filed on grounds which were specified inthe principal Act, null and void with retrospective effect. Only actionsfiled on the grounds —
(1)that the rent had been in arrears for 3 months, or
(2)that the premises have been used for immoral or illegal purpose, or
(3)that wanton destruction or damage had been caused to the premises,were saved.
» {1905) S N. L. B. 223.
{1879) 12 Ch. D. 438.
431
ft
SRI SKANDA RAJAH, J.-—de Soyaa v. Fonseka
I do not think it could have been intended that where a judgment forejectment had been given prior to 1st May, 1961, the tenant was to bedeprived of the benefits of the amending Act merely because he did notfile his petition of appeal before 30th April, 1961. The law, it must beremembered, allowed him time beyond that date to lodge his appeal.Consider the matter from the point of view of the landlord, and one getsan odd result if the date of judgment is taken to be the date when theaction ceased to be pending. For then, if this Plaintiff had applied forwrit of ejectment in execution of his judgment, the proceedings in execu-tion would all be rendered void if such application had been made before30th;April, 1961, whereas they would be valid if the application for writhad been made after that date. Thus a diligent Plaintiff would sufferwhile a Plaintiff who did nothing to execute his judgment would bebenefited. Such a curious result could not have been intended byParliament, which would be presumed to act on the well-known principlethat “ the using of legal diligence is always favoured and will never turnto the disadvantage of the creditor ” —per Heath J. in Cox v. Morgan 1.
X therefore hold that this action was pending on the relevant date.It follows that under Section 13 (3) of the amending Act it must be deemedto be null and void and I find accordingly. The appeal is allowed.The appellant will have his costs of appeal, but the parties will beartheir own costs in the lower Court.
Appeal allowed.