SINGHE v. NADARAJAH ESWARAN AND WIFE AND ANOTHER

005-SLLR-1984-V1-WIJESINGHE-v.-NADARAJAH-ESWARAN-AND-WIFE-AND-ANOTHER.pdf


CA
Wijesinghe v. Nadarajah Eswaren
33
WIJESINGHE
v.
NADARAJAH ESWARAN AND WIFE AND ANOTHER
COURT OF APPEAL
H. A. G. DE SILVA, J. and MOONAMALLE, J.
C.A. 505/83-D.C. JAFFNA 1895/LNOVEMBER 24, 1983.
Setting aside of a consent judgment — Averments necessary in a plaint for rent andejectment under sections 22 (1) fbb), 22 (1A) and 22 (1C)~ Notice to theCommissioner of National Housing-ls non-compliance fatal ora mere irregularity ?
the plaintiffs (respondents) instituted this action for ejectment of the defendant(petitioner) from premises No. 445. Stanley Road, Jaffna. The monthly rental wasnot averred in the plaint, but it was averred that the premises in suit were the onlyhouse available to the plaintiffs as a residence and they required the said house for*their personal residence. Notice was given to the defendant by the plaintiff'sattorney-at-law on 19.1.1980 requiring the defendant to quit the said premises andhand over possession on or before 31st July 1982. The defendant did not vacatethe premises and the present suit was filed for rent and ejectment and damages atRs. 150 per month for unlawful possession. The defendant opposed themaintenance of the action.mainly on the grounds that there were no averments thatthe Commissioner of National Housing was informed of the notice of termination oftenancy within the prescribed time and the prayer to the plaint did not state that thedecree will not be executed until other accommodation was provided for thedefendant by the Commissioner of National Housing. On 15.2.1983 when the capewas taken up for trial, a settlement was reached whereby the defendant consentedto judgment being entered for the plaintiff in ejectment subject to certainconditions. The terms of settlement made no provision that the decree will riftt be <executed until other accommodation was provided for the defendant by theCommissioner of National Housing.
The defendant contended that the settlement was a nullity in view of themandatory provisions of the Rent Act. No. 7 of 1972.
Held-
Section 22 (1) (bb) and section 22 (1 A) permit a suit in rent and ejectment forpremises whose standard cent is below Rs. 100 under the followingcircumstances:
The tenancy should have begun prior to the date of commencement of theAct.
The landlord should not be the owner of more than one residential premises
34
• Sri Lanka Law Reports
11984] 1 S.L.R.
The landlord should have caused a notice of such action or proceeding to beserved on,the Commissioner of National Housing.
Compliance with thesd requirements must be pleaded.
Failure to give notice to the Commissioner of National Housing is not a mereirregularity but a fatal defect. In these circumstances the settlement of 15.2.1983was a nullity.
Cases referred to
Arnolds v. Lawrence C.A.IS.C.) Application No. 45/80-C.A. Minutes of11 4.80.
Lawrence v. Arnolds S.C. Appeal No. 39/80-S.C. Minutes of 6.2.81.
Idroos Lebbe v. Tamby Maricar, (1907) 10NLR206.
14) Lorensz v. S. L. M. Abdul Cader (1962) 66 NLR 523.
(5) Dheerananda Them v. Ratnasara Them (1958) 60 NLR 7.
•
APPEAL from an Order of the District Court of Jaffna.
i
T. B. Dihmuni for the defendant-petitioner.
S. C. 8.. Walgampaya for the plaintiff-respondent.
Cur. adv. vult.
January 27, 1984
H. A. G. DE SILVA, J.
This is an application for the setting aside of the consent
judgment entered on 15.2.1983.
•
The plaintiff-respondents (hereinafter called the plaintiffs)instituted this action for the ejectment of the defendant-petitioner* (reflrred to hereafter as the defendant) from premises No. 445.Stanley Road, Jaffna. The plaintiffs have not averred in the plaintthe monthly rental of the house. They have averred that thepremises in suit are the only house available to the plaintiffs as aresidence and that they required the said house for their personalresidence. They further averred that the plaintiffs noticed thedefendant through their Attorney-at-Law on 19.1.1980, that thesaid house was required by them to reside and to vacate the saidpremises and deliver vacant possession thereof on or before 31stJuly, 1982. The plaintiffs have stated that as a result of thedefendant's unlawful ajid forcible occupation, they are incurringdamages at Rs. 150 per month.
CA
35
Wqesinghe v. Nadarajah Eswaran (H. A. G. De Silva. J.)
« — — ■■ — – – – —
The defendant has also not in his answer averred the monthlyrental he pays to the plaintiffs. He denies having received the noticeterminating his tenancy. He further pleads the protection of theRent Act, No. 7 t>f 1972 as the premises in suit are premises towhich the Rent Act applies. He further pleads that, in the plaint,there is no averment that the Commissioner of NationalHousing was informed of the notice of termination of tenancy andthat within the prescribed time, and in the prayer to the plaintthat decree will not be executed until other accommodation isprovided to. the defendant by the Commissioner of NationalHousing.
On 15.2.83 the first date of trial a settlement had been reachedand the terms of settlement recorded and the record signed by theplaintiffs and defendant: Both parties appear to have beenrepresented by counsel. The settlement recorded is as follows :
'Of consent judgment for the plaintiffs in ejectment. No costs.If plaintiff will deposit in Court Rs. 12,500 within 3 months fromtoday defendant will vacate the land and premises before 1.1.84.Defendant will be entitled to withdraw this sum after he quits andhands over vacant possession. Defendant will undertake to paydamages at Rs. 30 p.m. on or before end of each and everymonth from 1.3.83. In default of payment for any 3 consecutivemonths Courts will issue writ without notice. If the sum dfRs. 12,500 is deposited as aforesaid writ will issue in any eventon or after 1.1.84*.
The defendant filed this application on 18th April, 1983, and inhis petition he has stated that the monthly rental of the premises insuit was Rs. 30. The plaintiffs are silent regarding the quantum ofthe rent and except for a general denial of the averments of thedefendant contained in his petition and affidavit, the paragraphcontaining the averment regarding the quantum of rent has notbeen specifically denied. In this situation, having regard to theterms of settlement which mention the quantum of damagespayable by the defendant as Rs. 30 per month, it can be safelyaccepted that the rent of these premises tvas that amount andtherefore less than Rs. 100 per month. Even learned Counsel forthe defendant and plaintiffs addressed Court on this basis.
36
Sri Lanka Law Reports
(1984} 1 SLR.
• » — “
Learned Couhsel for the defendant both in his oral and writtensubmissions has taken up the position that the settlement reachedis of no avail as the action itself is a nullity in that certain mandatoryprovisions of the Rent Act, No. 7 of 1972, as arrfended have beencontravened or not complied with and that a person cannot even byconsent confer jurisdiction on a Court which it does not have unlessthese mandatory provisions have been complied with.
None of the pleadings filed in the District Court or in this Courtspecifically state when the premises in suit was taken on rent by thedefendant but in paragraph 11 of the petition the defendant statesthat he has been a tenant of these premises for a period oftwenty-four years, i.e., prior to the coming into operation of theRent Act, No. 7 of 1972, on 1st March, 1972.
Section 22 (1) (bb) of the Rent Act as amended by Law No. 10 of1977 states that-
‘Notwithstanding anything in any other law, no action orproceedings for the ejectment of the tenant of any premises thestandard rent (determined under section 4) of which for a monthdoes not exceed one hundred rupees shall be instituted in orentertained by any Court, unless where-
(bb) such premises, being premises which have been let to thetenant prior to the date of commencement of this Act, are,in the opinion of the Court, reasonably required foroccupation as a residence for the landlord or any member ofthe family of the landlord*.
Section 22 (1 A) enacts that-
‘Notwithstanding anything in sub-section (1). the landlord ofany premises referred to in paragraph (bb) of that subsectionshall not be entitled to institute any action or proceedings for theejectment of the tenant of such premises on the ground that suchpremises are required for occupation as a residence for himself orany member of his family, if such landlord is the owner of morethan one residentill premises and unless such landlord hascaused notice of such action or proceedings to be served on theCommissioner of National Housing'
37
Wijesinghe v. Nadarajah Eswaran (H. A. G. Da Silva. J.)
Sub-section (1C) of section 22 states that-'where a, decree for the ejectment of the tenant of anypremises referred to in paragraph (bb) of sub-section (1) isentered by any Court on the ground that such premises arereasonably required for occupation as a residence for the landlordor any member of the family of such landlord, no writ in executionof such decree shall be issued by such Court until after theCommissioner of National Housing has notified to such Court thathe is able to provide alternate accommodation for such tenant*
Learned Counsel for the defendant submits (1) that theseprovisions of the Rent Act impose a complete statutory bar to thecommon law right of a landlord to institute an action to eject histenant from any residential premises and (2) that they also fetterthe right given to a Court of law to entertain an action for theejectment of a tenant from any such premises, inasmuch as thejurisdiction given to a District Court by section 19 of the JudicatureAct. No. 2 of 1978. to entertain an action by a landlord to eject anoverholding tenant is taken away.
As I understand it, these provisions are twofold. (1) they bar theentertainment of an action by the Court unless certainpre-conditions are fulfilled and (2) do not empower the Court to enterdecree in ejectment except on the happening of a certain event viz:the notification to Court by the Commissioner of National Housingreferred to in sub-section (1C).
In the unreported case (1) Soza J. in his judgment has stated
inter alia as follows
'A person who claims that the prohibition imposed by section22 of the Rent Act does not apply to him must aver in the plaintthe facts and circumstances that exempt him from theprohibition. It is these exempting circumstances that constitutehis cause of action. As it is the exempting circumstances thatconstitute his cause of action the plaintiff must plead them.Otherwise the general bar against suits for rent and ejectmentwhere the standard rent of the premises does not exceed Rs.
100 per month will operate and the plaint will have to be rejectedunder the provisions of section 46 (2) (1) of the Civil ProcedureCode which requires the Court to reject the plaint when theaction appears from the statemepts in the plaint to be barred bya positive rule of law.
Sri Lanka Law Reports
[1984} 1 S.LR.
>8
Section 22 (1 ){bb) and section 22 (1 A) of the Rent Act permita suit ,n rent and ejectment to be filed for premises whosestandard rent‘is below Rs. 100/- under the followingcircumstances : Firstly the tenancy should have begun prior to
the date of commencement of the Act• . Secondly the
landlord should not be the owner of more than one residentialpremises Thirdly the landlord should have caused a notice ofsuch action or proceeding to be served on the Commissioner ofNational Housing.'
Soza, J goes on to say later in his judgment-
“Should the fact that the landlord owns not more than oneresidential house be pleaded or not ? Is it a fact material toconstitute the cause of action ? In my opinion it is. It is not a meredisability that has been placed on the landlord. It is a requirementinsisted upon as a matter of public policy. It is a specialqualification the landlord should have to avoid the bar againstsuits in rent and ejectment imposed by section 22 of the RentAct. It is a necessary ingredient of his cause of action. Anylandlord who sues under the provisions of section 22 (1) {bb)would not have a cause of action if he is the owner of more thanone residential premises. Hence there should be a specific
averment in the pleadings on the matter Under
section 40(d) of the Civil Procedure Code the plaintiff must plead^ll the circumstances which constitute his cause of action, thatis, the media on which relief is claimed. Under section 46(2) (i)th| plaint must show that the cause of action is not barred by anypositive rule of law. The requirement that the landlord should notbe the owner of more than one residential premises is a rule oflaw. It is a bar to the action if the landlord is owner of more thanone premises. If it is not pleaded the Plaint should be rejected interms of section 46 (2) (0 of the Civil Procedure Code. Eventhough the plaint was originally accepted it is open to the Courtwhen its attention is drawn to the omission by the opposing sideto reject the plaint'
The judgment went on thereafter to allow the application forrevision and dismiss the plaintiff's action.
CAWijesinghe v. Nadarajah Eswaran {H. A. G. De Silva. J )39
— j
In the appeal from the above judgment of Soza. J. to theSupreme Court {vide SC Appeal No. 39/80. SC minutes of 6.2.81)Ismail, J. stated as follows
'It will be noted that under (1A) there had to be two essentialprerequisites before institution of any action or proceedings forejectment of a tenant. These are, firstly, that the landlord will notbe entitled to institute any action or proceedings for ejectment ofa tenant if he is the owner of more than one residential premisesand secondly, the said landlord had caused notice of such actionor proceeding to be served on the Commissioner of NationalHousing. The plaintiff had complied with the latter of theserequirements for he states in paragraph (7) of the plaint that hehas sent a copy of the notice to quit to the Commissioner ofNational Housing. But there is no averment at all in the plaint thathe is not the owner of more than one residential premises or that
he is the owner of only one residential houseIt appears to
me that this question of owning only one residential premises isfundamental to the invoking of the provisions of Law No. 10 of1977 and is a matter that should have been pleaded in the plaintin order to enable the plaintiff to invoke provisions of this Act
To invoke the provisions of Law 10 of 1977 it is an
essential requisite that the person should be possessed of onlyone residential premises, and it appears to me that if this isclearly pleaded only, would the Court have jurisdiction toentertain and proceed with the case instituted under the*provisions of this Law. Therefore if appears to me that thisobjection cannot be dismissed by purely contending that it is onlya matter of evidence when ex facie it is a fundamentalrequirement under this Law*.
The judgment went on to set aside the judgment of the Court ofAppeal and remit the case for further trial on four additional issuesrelating to the plaintiff's ownership of more than one residentialpremises and in the event of this issue being answered in theaffirmative whether the plaintiff could maintain the issue in terms ofthe relevant provisions of the Rent Act and the amending law. Theother two issues similarly dealt with the date of creation of thecontract of tenancy.
40
Sri Lanka Law Reports
[1984] 1 S.L.8.
From these paragraphs I have quoted from the above twojudgments.it is clear that the plaintiff is obliged to plead theprerequisites' for him to institute and maintain this action forejectment.
Learned Counsel for the plaintiff has submitted that as regards anaverment that a copy of the notice to quit has been sent to theCommissioner of National Housing is concerned, the Rent Act doesnot require this fact to be pleaded as for example in the case ofsection 461 of the Civil Procedure Code, where it is stipulated thatone month's notice has to be given before an action is institutedagainst the Attorney-General and the plaint in such action mustcontain a statement of the giving of such notice.
Section 461 of the Civil Procedure Code states :
‘No action shall be instituted against the Attorney-General as
representing the Crownuntil the expiration of
one month next after notice in writing has been delivered to such
Attorney-General.and the plaint in
such action must contain a statement that such notice has beendelivered or left*.
Section 461 (A) introduced by Law No. 20 of 1977 permits theCourt to stay furtherproceedings of the action for a period of one
monthwhere no notice as required by
section 461 has been given prior to the institution of the action.
Sub-section 2 states that where after giving of such notice asrequired by section 461, the plaint fails to aver the fact of suchnotice having been given, the Court shall permit an amendment ofthe plaint averring the giving of such notice.
Sub-section 3 states that no such action as is referred to insection 461 shall be dismissed only for the reason that no noticeprior to the institution of action had been given as required by thesaid section, or that a statement that such notice of action hasbeen duly delivered or left has not been averred in the plaint.
In view of all these provisions of section 461 and 461A onecannot draw an analogy between the requirements of section 461and the provisions of section 22(1 A) of the Rent Act.
4/
CAWijesingha v. Nadarajah Eswaran (H. A. G. Da Silva. J.)
hold that as stated in the judgments that I have referred toearlier, it is an essential requirement that the prerequisites thatwould entitle a plaintiff to institute an action in respect of theejectment of a tenant falling within the ambit of section 22 (1) (bb)must be pleaded in the plaint.
A perusal of the plaint shows that the plaintiff has in para 3pleaded that the premises in suit are the only house available to theplaintiff as a residence, in other words that he is the owner of onlyone residential house. In para 4 the plaintiff has pleaded that theplaintiffs require the said house for their personal residence i.e fortheir own use and occupation. What the plaintiff has failed to pleadis that a copy of the notice of the action or proceeding has beengiven to the Commissioner of National Housing in terms of section22 (1 A). This is an essential requirement as by sub-section (1C) theCourt is precluded from issuing a writ of execution until the'Commissioner of Housing has notified the Court that he is able toprovide alternate accommodation for such tenant. In the absenceof such an averment that such notice has been given to theCommissioner of National Housing the plaint is prima facie bad andcould have been rejected by Court.
The question that comes up for decision now is whether thesettlement reached between the parties obviates this requirementand if so has it to be construed that the defendant by hisacquiescence has forfeited the protection or advantage conferredon him by law.
Sub-section (1A) states that the landlord of premises referred#toin paragraph (bb) of sub-section 1 shall not be entitled to instituteany action or proceeding for the ejectment of a
tenantunless such landlord has caused notice of
such action to be served on the Commissioner of National Housing.The defendant has raised this defence in paragraph 8 of his plaint.
I have already held that the giving of such notice and averring thatfact in the plaint are mandatory.
Learned Counsel relies on the follqwing authorities to buttress hissubmission that the settlement arrived at doqp not prevent him fromagitating thereafter non-compliance with the mandatory provisions ofthe law.
42
Sri Lsnka Law Repons
[1984] 1 S.LR.
In Idroos kebbe v. Tamby Maricar (3) it was held that where theCourt has no jurisdiction at all. consent of parties cannot confersuch jurisdiction.
In Lorensz v. $. L. M. Abdul Cader (4) it was field that the effectof sub-section 3 of section 13 of the Rent Restriction (Amendment)Act. No. 10 of 1961. is that where an action of the kind referred toin this sub-section is pending on 6.3.61. the Court would have nojurisdiction to enter a decree for ejectment. This want of jurisdictioncannot be supplied even by the consent of parties.
In Dheerananda Them v. Hatnasara Them (5) it was held thatwant of jurisdiction in a Court amounting to an illegality and notmerely to a procedural irregularity cannot be cured by consent ofparties. T. S. Fernando. J. in the course of his judgment at page 12• states:
'Counsel for the plaintiff sought to maintain the judgmentappealed from on the ground that the appellant having expresslyconsented in the trial Court to the substitution of himself asdefendant is now estopped or precluded from asserting a want ofjurisdiction in the Court to continue with the action. The pointwhether the appellant is estopped from questioning themaintainability of the action appears to me to depend on thefurther question whether the substitution and the proceedingssubsequent thereto amounted to an illegality or only a mereirregularity or whether there was only a defect of contingentjurisdiction which was cured by the consent given by theappellants. *
At page 14 T. S. Fernando, J. goes on to say-
"Where it is shown that the proceedings are illegal in the sensethat the Court had no jurisdiction to proceed to make an order, thereis, in my opinion no room for argument that it is too late at the stageof appeal to object to the proceedings taken and the order of Courtconsequegt upon these proceedings'
teamed Counsel for the plaintiffs has in his submission quoted apassage from Spencer Bofcer and Turner-Estoppel byRepresentation (2nd Edition-1966) at page 136. This passagestates that 'not even the plainest and most express contract or
CAWijesinghe v. Nadarajah Eswaran (H. A. G. Da Silva. J.)43
consent of a t>arty to litigation can confer jurisdiction on any personnot already vested with it by the law of the land, or add to thejurisdiction lawfully experienced by any judicial tribunal; it is equallyplain that the same results cannot be achieved by contract or
inaction or acquiescence by the partiesOn the
other hand where nothing more is involved then a mere irregularityof procedure (e.g.) non-compliance with statutory conditionsprecedent to the validity of a step in the litigation of such acharacter that, if one of the parties be allowed to waive the defect,or by contract or inaction to be estopped from setting it up no newjurisdiction is thereby impliedly created and no existing jurisdictionimpliedly extended beyond its existing boundaries, the estoppejwill be maintained, and the affirmative answer of illegality will fail*.
In my view the failure to give notice to the Commissioner ofNational Housing and plead that fact in the plaint is not a mereirregularity. Sub-section (1C) prevents a Court from issuing a writ ofexecution, on a decree entered unless the Commissioner ofNational Housing informs Court that alternate accommodation isavailable to the tenant. This is a mandatory requirement of the lawThe parties cannot by consent give the Court jurisdiction to issuesuch a writ in cases coming within section 22 (1) (bb) if theCommissioner's communication to Court is absent and it wiN beabsent unless notice of action or proceedings has been given tohirh by the plaintiff as required by sub-section (1 A). In thecircumstances I do not think this settlement entered into could beallowed to stand. I accordingly allow this application, set aside thejudgment of consent entered on 15.2.83, and remit the case backfor trial de novo. I make order that all costs in this action be costs inthe cause.
MOONEMALLE, J. -1 agree.
Judgment set aside and case sent back for trial de novo.