S. M. ANIS, Appellant, and T. VINCENT SILVA, Respondent

057-NLR-NLR-V-73-S.-M.-ANIS-Appellant-and-T.-VINCENT-SILVA-Respondent.pdf


TEN'NEKOON', J.—Anis v. Silva
3o$
1970Present: Tennekoon, J.
S. M. ANIS, Appellant, and T. VINCENT SILVA, RespondentS. C. 53169—C. R. Colombo, 96754
Civil Procedure Code—Sections 9, 325, 327—Action brought under s. 327 in consequenceof a tenancy action instituted by a purchaser of rented premises—Claim of defen-dant that he himself was a monthly tenant —Jurisdiction of Court of Requests tohear the action although the premises in question were valued at Its. 30,000—Courts Ordinance, s. 75.
A bought certain premisos from B who had previous!}- routed tho promises toC. C thus beenmo the tenant of A. Thoroaftor A obtained a docroo in theCourt of Requests for ejectment of C, but when tho Fiscal wont to execute thewrit of possession tho present appellant D obstructed tho Fiscal. In proceedingsunder soction 325 of tho Civil Procoduro Code, D claimod that he was holding thepromises os a monthly tonant of B and that A hnd failed to obtain an attornmentfrom D. Tho Commissioner of Bcquosts then mado order that D’s claim shouldbo dotermined in an action undor section 327 of tho Civil Procedure Code.Tho premisos in question wero valuod at Rs. 30,000.
Held, that tho Court of Requests had jurisdiction to hoar the 327 action,although tho premisos in question wore valued at Rs. 30,000. In such a case,tho jurisdiction should bo dotorminod by tho value of tho defendant’s interestas a monthly tenant and not by the value of tho premises.
.A PPEAL from a judgment of the Court of Requests, Colombo.
Ranganathan, Q.C. with M. T. M. Sivarcleen, for the defendant-appellant.
R. P. Goonetilleke, for the plaintiff-respondent.
Cur. aid. lull.
May 16, 1970. Tennekoon, J.—
An action was filed by one Vincent Silva (the respondent to this appeal)in 1965 in the Court of Requests, Colombo, for ejectment of his tenant
M.Kandasamy Tlievar. He alleged in Jus plaint among other thingsthat he had purchased the premises from one A. M. M. Mohauicd Ibrahim,and that the defendant Thcvar who had been a tenant of his vendor hadthereafter become his tenant. The plaintiff obtained judgment after*'~ex jxirte trial, and writ of execution for ejectment was issued. Whenthe fiscal went ito execute the writ one S. M. Anis the present appellantand another obstructed the fiscal. The affidavit of the fiscal’s officercontains statements to the following effect:—
“ Then S. M. Anis came forward and said that he rented out thispremises from one A. 31. M. Ibrahim since 15th December, 1961. Assuch he cannot vacate under 0113- circumstances. Also he said that he
is not going to allow to execute the writThe said Anis produced
a document dated 12/3/Cl in proof of payment of rent to A. 31. 31.Ibrahim.”
310
TUXSKIvOON, J.—-.-1 ru's v. M'ili-n
On the 11th of January 1900 the present respondent- complained of theobstruction by a petition under section 325 of the Civil Procedure Codeto which Anis ami another were made respondents. In his objectionsfiled on the 10th of March I960 the appellant took up the position that hewas holding the promises under Ibrahim as from 15-12-61 and that therespondent had failed to obtain an attornment from the.'appellant;consequently the respondent had no right of possession as against him.
The Commissioner of Requests acting under section 327 of the Civil./Procedure Code proceeded to have tho petition of the..respondentnumbered and registered as a plaint between the respondent-as plaint illand S. M. Anis the appellant as defendant. Anis filed answer on 13-12-67 .and trial in this action was had on the 3rd and 29th of October 1063- –
The main issues were (1) whether the defendant-appellant was inoccupation of tho premises from December 1901, as a tenant underIbrahim, and (2) whether the respondent was. entitled to eject thedefendant-appellant unless he proved that the latter came into occupat ionof the premises as a sub-tenant under Kandasamy Thevar.
The Commissioner of Requests, after hearing evidence and submissionsof counsel, reserved his order for the 22nd of November, 1968.'. On thatdate judgment was not ready and counsel for the appellant indicated toCourt that he wished to make further submissions as to whether theCourt had jurisdiction in the case. Further submissions were heardand judgment was ultimately delivered on 19-12-GS in favour of therespondent; decree was entered ordering that writ of possession inC. R. Colombo Case No. 9IG91 bo reissued.. ..
In appeal tho only question argued was whether the Court of Requestshad jurisdiction in this case; it was submitted that when tho'petitionunder section 325 was numbered and registered as a plaint it became anaction for recovery of proper ty and that the test of jurisdiction shouldbe, not the amount of the monthly rent of the premises) but tho value ofthe property itself.5'.
No evidence was led in the court below in regard to the,value of thepremises or of the right to possession claimed by tho plaintiff, and thereis also quite naturally no finding on that question in the judgment of thoCommissioner. I find however that in one of the deeds produced in thocourse of the trial the premises have been valued at Rs. 30,000 in 1964.Parties too have made their submissions on the basis that the value of thopremises exceeds tho limit of the monetary jurisdiction of the Court ofRequests.
It was urged by counsel for the appellant that section 327 of tho CivilProcedure Code does not confer on tho court a jurisdiction, monetary orotherwise, beyond that conferred by section 9 of tho Civil Procedure.Code. He relies on the case of Pillai v. Coder Mcera 1 where it was held,that section 327 docs not enable a District Court to number and register» (1932) 34 -V. L. R. 9; 1 C. L. W. 174.
TEXXEKOON, J.—Ania v. Silca
311
as a plaint a petition filed under section 325 relating to obstruction toan order of possession under section 2S7 of the Civil Procedure Codepertaining to land situated outside the jurisdiction of the court issuingthe order for delivery of possession. On the basis of this authority, it iscontended that where, as in this ease, a tenancy action is filed in theCourt of Requests in respect of premises whose value is beyond themonetary limits of the jurisdiction of the Court, and where thero hasbeen resistance or obstruction to the execution of the writ of possession, apetition filed under section 325 cannot under section 327 be numberednnd registered as a plaint because the court would then be dealing with acaso in which there is a claim for recovery of possession of propertybeyond the court’s monetary jurisdiction, and that tho proper course fortho judgment creditor to follow is to file an action in tho appropriateDistrict Court.
Tho appellant in this caso in resisting or obstructing the fiscal’s officerstated that ho claimed a right to possession of the premises on the basisthat lie was a monthly tenant of the defendant-respondent’s predecessorin title. Ho did not dispute the respondent’s title to the land either thenor at tho trial. It is thus clear that the appellant’s position was thathaving been a tenant of Ibrahim from 1901 onwards, he had a right tocontinue in possession in that capacity even after the respondent pur-chased the premises in 1964. It is I think now settled law that when alandlord sells premises which have been rented bj' him the tenant canlawfully continue in occujmtion only as a tenant who has attorned to thenew owner; otherwise lie must surrender his tenancy and seek hisremedy upon the original contract of tenancy against his former landlord.Sco Silva v. Madanayahe 1 and the eases discussed therein. Thus in thepresent case the appellant had no greater right to possession of thepremises than that of a monthly tenant; and the right he claimed couldonly have been established bj' evidence of attornment to the respondent;but quito apart from tho nature of tho evidence that was necessary toestablish such a right to possession, the appellant’s interest in the landcould not be valued in any view of the matter, at more than that of amonthly tenant.
Learned counsel for the appellant has submitted that having regard to• the words “ as if an action for the property' had been instituted by thedecree-holder against the claimant ” appearing in section 327, the actionmust be valued as an ordinary rei vindicalio action in respect of the land.That may be 60 in some cases that can arise under section 327. Undersection 75 of the Courts Ordinance, Courts of Requests have jurisdictioniu eases relating to land where the “ value of the land or the. particularshare right or interest in dispute shall not exceed three hundred rupees."
It is not in every ease relating to a land that the test of the value of theland itself need be applied. In certain cases the appropriate test to beapplied would be the interest in dispute ; and for that purpose courts
‘ (1967) 69 K. L. R. 396.
312
TEXXEKOOX, J.—Anis r. Sitra
have frequent ly looked at both the plaint ami the answer .filed by thedefendant to justify a Court of Requests assuming jurisdiction in amatter when an examination of the plaint alone might have yielded adifferent answer. See 6'ilea v. Senanayale 1 and Pcrcra v. Liyanaguma 2.
I also find that the words which I have quoted from section 3-7 have-been commented upon by this court in the following terms by Windham, J.(with Howard, C.J. agreeing) in t lie case of Chinnathamby v. SdmaaunderaAiyer 3
“ But these words, though no doubt they require the investigationto be treated as if it were a ‘fresh action’ (and on that point I concur withwbat was said in Fernando v. Fernando 24 N. L,. R. (1923) n.t'p. 505)cannot in ray view reasonably be construed as placing the plaintiff—the decree-holder—in the position of having to comply with! all thetechnical requirements of the Civil Procedure Code, non-compliancewith which might prove fatal to an actual fresh action brought by him.Nor is there any' question of his ha ving to show a ‘cause of action*. Itis sufficient that-he is the holder of a decree for the possession of theimmovable property. Section 327 merely says that the claim shall beinvestigated as if it were an action by the decree-holder against theclaimant-. But it is tho claim (i.c., the ease of the person- offeringresistance to the decree) which is required to be investigated, and notthe decree-holder’s own right. For ho holds the decree, and th&onusis on the claimant to support his claim as against that decree.”
It seems to mo that in examining the question, whether the presentaction is within the monetary jurisdiction of the Court of Requests thewords of section 327 which direct the court to “ investigate the claim ”of the defendant must be given their due weight. Even in an ordinaryaction by a tenant, who has been dispossessed by ,his landlord to berestored to • possession, tho jurisdiction would be determined^by themonthly-rental and damages and not by the value of the premises—SeePremaralne v. Suppiah*..- I
I accordingly hold that the learned' Commissioner’.was right in'concluding that tho action Mas within the jurisdiction of his: court-.Tho appeal Is dismissed with costs.-V- i
Appeal dismissed.
1(1963) 65 X. L. R. 3S3.* (1947) 48 -V. L. Jb Si/ at 517.
* {1956) 58 X. L. It. 454.* (1962) 64 X. L. Jt. 276..