016-SLLR-SLLR-1989-V-1-HAMEED-alias-ABDUL-RAHMAN-v.-WEERASINGHE-AND-OTHERS.pdf
Hameed alias Abdul Rahman v. Weerasinghe and
SCOthers (G. P. S De Silva. J.)217
HAMEED alias ABDUL RAHMAN
V.
WEERASINGHE AND OTHERS
SUPREME COURT.
G. P. S. DE SILVA. J.
MARK FERNANDO: J. ANDAMERASINGHE. J-.
S.C. APPEAL NO: 13/86.'
C; A. NO: 104/78 (F).
D. C. MATARA NO: 3433/L.
FEBRUARY 27. 1989.
Landlord and tenant — Deceased tenant's wife's failure to attorn — requisites of aplaint —Averment and proof of title in a rei vindicatio suit —Action on trespasswhere title is not disputed. .
Where the tenant dies and his widow fails to attorn to-the landlord, the widowcannot claim tenancy rights. ….■•
Under the Civil Procedure Code it is only necessary to plead the relevant.facts■constituting the action. It is not necessary to categorize the cause of action.
In a vindicatory suit, it is necessary to aver and prove title but where title is notdisputed a plaintiff may sue only for ejectment. Although the plaintiff had notpleaded his title, his averment that the widow, of the deceased tenant is inoccupation without his permission and vvithout paying rent is sufficient to foundan action on trespass. No objection having been taken at the'trial to anydeficiency in the pJaint re setting out title, it cannot be raised in appeal.
Case referred-to :
Theivandran v. Ramanathan Chettiar — [ i 986] 2 Sri LR 2 1 9. 222.
APPEAL from judgment of Court of Appeal,
N. R. M. Daluwatte. P.C. with Mrs. D. K. Gabadage and Manohara .de Silva forPlaintiff-Appellant.
K. Abeyp'ala for 1 st Defendant-Respondent.
Substituted 2nd Defendant-Respondent and 3rd Defendant-Respondent areabsent and unrepresented.
Cur. adv. vult.
218
Sri Lanka Law Reports
(19891 I Sn L. R.
March 16. 1989.
P. S. De Sitva, J.
The plaintiff instituted these proceedings seeking theejectment of the 1 st. 2nd and 3rd defendants from the premisesin suit and claiming damages at the rate of Rs. 25/- per mensemfrom February, 1971. Iri her plaint dated 30th December. 1971.she averred that (i) the tenant of the premises was E. J. A. Johnwho die'd on 5th January. 1971. (ii) John had paid rent up to theend of January, 1971. and (iii) the 1 st defendant was the widowof the deceased tenant John. These facts were admitted by the1st defendant in her.answer. The plaintiff further pleaded thatafter the death of John neither the 1st defendant nor any of hisheirs paid any rent nor sought her permission to continue tooccupy the premises as her tenant. As regards the 2nd and 3rddefendants,’ it was the case of the plaintiff that the deceasedJohn had sub-let the premises to them without her knowledge.
The 1st defendant's position as set out in her answer andfocussed in the issue raised on her behalf at the trial was thatupon her husband's death the plaintiff accepted her’ as hertenant: After, trial, the District Judge held, (a) that the 1stdefendant was the tenant of the premises: (b) that the 2nd and3rd defendants were not sub-tenants but were employees underthe deceased John.,The action was accordingly dismissed.
The plaintiff thereupon lodged an appeal to the Court ofAppeal. The Court of Appeal affirmed the finding of the DistrictCourt that the 2nd and 3rd defendants were employees underJohn and thereafter were employees under the 1st defendantand that they had no status independent of the 1 st defendant. Atthe hearing before us. Mr. Daluwatte for the plaintiff-appellant,did not canvass this finding.
The Court’ of Appeal, however, reversed the finding of theDistrict Court that the 1st defendant is the tenant under theplaintiff. On this crucial issue the Court of Appeal expressed itselfin the following terms:—
"On the evidence it is manifest that the first defendant has notattorned to the plaintiff after the death of her husband nor hadshe obtained the protection of the Rent Acts by way of any
Hameed alias Abdul Rahman v. Weerasinghe
SCand Others (G. P. S De Silva. J.) ■■219
application made under the statute. She has no- privity ofcontract either'directly or by attornment nor is there a nexuscreated by operation.of law". This finding is amply supported bythe evidence on record and. Mr. Abeypala. counsel fo,r. the 1stdefendant-respondent, very properly did n.ot challenge- it..Incidentally. I wish to add that the reference todhe Rent Acts inthe above passage must be read as a reference- to the RentRestriction Act (Chap. 274-of the 1956 Re'vise.d Edition of theLegislative Enactments), the action ’having' been filed in 1 971.
Although the'Court of Appeal arrived at the. finding that the Tstdefendant was not a tenant under the plaintiff,-,as claimed by the1st defendant, -(and this was the basis upon- which the 1stdefendant sought to.-justify her continued occupation of thepremises after the death of John) yet the action was dismissedsolely on the ground that the plaint, "does not disclose a validcause of^ action as . known to our. law". The Court pf Appealconcluded:-)- "The plaint-in. this .case- is not based, pn a contract-of tenancy nor does it contain the elements required for apossessory or a vindicatory action . . …. The absence of a
tfalid cause of action is a pure question of law and can be raisedat any stage". It was this part of the judgment of the Court ofAppeal that was assailed by Mr. Daluwatte! -.
– In the first place, it is right to state that the' plea that the -plaintdoes not disclose a cause of action was not pleaded in theanswers of the defendants nor was an issue on this point raisedat the trial. Section 40 of the-Civil Procedure Code sets out therequisites of-a plaint.. It provides inter alia, that the plaint shallcontain‘"a plain and concise statement'of the circumstancesconstituting'each cause of action, and where and when it- arose
.'. . ■ 7 (Section-'40(d)). Thus it is clear that under-our procedurallaw. there is no need to.categorize the cause of action as beingbased on a particular form of action. All that is required is toplead the relevant facts constituting the cause of action.
•The question that arises on this appeal is whether this'actioncannot be maintained fdr the reason that .the plaint’ does notdisclose a cause of action. On a scrutiny of the plaint; I am of the
220
Sri Lanka Law Reports
119891 I Sr, L. R.
view that it discloses a cause of action based on trespass. Apartfrom the averment that the 1st defendant is the widow of the-deceased tenant. John] there is the following' significantstatement in paragraph 5 of the plaint:— "After the death of thesaid tenant E. J. A-. John. hi.s widow the 1 st defendant nor any ofhis heirs paid any rent nor sought the permission of the plaintiffto continue as a tenant or tenants of the premises referred toaboveas required by law". Admittedly, the provisions of section1 8 of the Rent.Restriction.Act were not complied with. The resultwas that the 1st defendant.could not thereafter have claimed theprotection of the Rent Restriction Act. What paragraph 5 of theplaint in effect avers is that uponthe death of John the 1stdefendant's right to remain' in occupation of the premisesceased. In other words, the widow's continued occupation of thepremises was unlawful.
.. It'is true, as submitted by Mr. Abeypala. there are no avermentsin the plaint setting out the plaintiff's title to the premises nor hasthe plaintiff sought a declaration that she is the owner of thepremises. This is no doubt a defect in the plaint, but could the1 st defendant rejy on it at the stage of appeal, in the absence ofa specific objection in the -answer and the matter not havingbeen put in issue at the trial? I think not. particularly in view ofsection 46(2) (d) of the Civil Procedure Code. Had the specificobjection, namely that the plaint does not disclose a cause ofaction', been taken in the. answer, the plaintiff may well havemoved to amend the plaint. The plaint not being happily worded,an appropriate amendment could -easily have remedied thedefect in the pleadings. Moreover, the issues show the nature ofthe dispute between the parties, namely the character of theoccupation 'of'the premises by the 1st defendant. Was the 1stdefendant a trespasser as., averred by the plaintiff or was she atenant under, the plaintiff? Therefore, even assuming that theissue whether the plaint discloses a cause of action is a purequestion of law. I am of opinion that in the facts andcircumstances of this case, it * is not a question, that couldproperly,h;ave-been raised at the stagelof appeal and answered infavour of the defendants. In.doing so, the Court of Appeal was inerror.
sc
Hameed aiias Abdul Rahman v. Weerasinghe
and Others (G. P. S De Silva.' J.)221
Mr. Abeypala was right in his submission that in a• reivindicatio action, the plaintiff must aver and prove his title tothe premises in suit. This is the generai rule, but in the instantcase the pleadings, the. issues and the evidence on. recordclearly show that at no.stage did any of the defendants disputethe plaintiff's title to the premises. What is more, the deceased' tenant could not have disputed the plaintiff's title (Section 1 16of the •Evidence Ordinance). A fortiori, the 1st defendant, hiswidow and a member of his family could not have disputed.theplaintiff's title to the premises. In these circumstances,, thedefect in the plaint ceased to be material.. .
The plaintiff's title not having been disputed by the 1stdefendant, the burden clearly was on the 1st defendant toshow by what r.ight she continued.to occupy the premises after• the death of John. This principle' was referred to bySharvananda, C. J. in theivandran '.vs. Ramanathan Chettiar.
(1).."An owner of a land has the right to possession of it and'hence is entitled to sue for.the ejectment of a trespasser …..Basing his claim- on' his' ownership-, .which entitles him topossession, he may su.e for the ejectment of any person :inpossession of it without his consent: Hence when the legal title. to the.premises is admitted or proved to be in the plaintiff, theburden of proof is on the defendant to show-that he is in lawful-possession”. ■•-
• In the case .before us. the 1st defendant's position was thatshe was the tenant-, under the plaintiff after her husband’sdeath, and therefore her possession' was lawful. As stated'earlier, that plea was rightly rejected by the Court of Appeal.The plaintiff, therefore;, must "succeed in. her action.forejectment .and damages.
The appeal is accordingly allowed and.the judgment of the.Court of Appeal dismissing the plaintiff's action is set aside,We direct that decree for ejectment be entered as prayed for inparagraph (a) of the prayer to the plaint dated 30th December;
222
Sri Lanka Law Reports
{1989) t SnL. R.
1.971. The plaintiff is also entitled to damages from the 1stdefendant in a sum of Rs. 25/- per mensem from February 1 971till she is restored to possession of the premises in suit. The 1st.defendant must pay the plaintiff costs of proceedings in theDistrict Court as well as a sum of Rs. 750/- as costs of’appealboth in the Court of Appeal and this Court.
MARK FERNANDO, J. — I agree.
AMERASINGHE. j. — I agree.
Appeal allowed