019-NLR-NLR-V-21-USOOF-v.-ZAINUDEEN.pdf
( 8(8 )
1918.
Present: Shaw J.
USOOF v. ZAINUDEEN.
164—C. R. Colombo, 62,160.
Jurisdictton^-Court ofBequests—Action for rent and for damages for
over-holding.
In an action for ejectment and for damages for over-holding, theamount of amonth’s rent need not be added tothedamagesclaimed
to ascertain the value of the relief claimed.
Continuing damages may always be claimed in the Court ofBequests, but judgment should be restricted to the monetary jurisdictionof the Court.
Hewaioitarana v. Marikar 1 explained.
•■JpHE facts are set out in the judgment.
The plaint in this case was as follows: —
The plaintiff and the defendantreside at ' the respective placesabove mentioned, within the local limits of the jurisdiction of this Court.
Prior to the dates material to this action, the plaintiff at Colombo,
within the jurisdiction ofthis Court, letto thedefendant, andthe
defendant took on rent from the plaintiff, the house and premisesbearing assessment No. 17, situated at Third Cross street, Pettah,Colombo, which are morefully describedin theschedule markedA
hereto annexed, excludingtherefrom the'southernhalf part ofthe
downstairs, at arentalof Bs. 115 a month, payable onthe 10thday of
each and every succeeding month.
The defendant, as such tenant asaforesaid,entered into occupa-tion of the saidhouseand premises, and continuedto be so upto the
28th day of February,1918, aB monthly tenant oftheplaintiff,and is
still in the unlawful occupation thereof, as hereinafter stated.
1 (1916) 19 N. L. B. 239..
( 87 )
The defendant paid rent to the plaintiff at the rate of Be. 115
per mensem up to the 31st day of December, 1917, bnt since the 1stdayof January, 1918, the defendant has failed' topayrentforthe said
house and premises.
The plaintiff appropriates to himself the sum of Bs. 230 depositedby the defendant at the commencement of the tenancy as and for therent for the months of January and February, 1918.
Theplaintiff did,on the 29th day of January,1918,give the
defendant notice in writingtoquit and deliverpossession of thesaid
house and premises to theplaintiff on the 28thdayof February, 1918,
andthesaid tenancy was determined on the said28thdayofFebruary,
1918, but, notwithstandingthedetermination ofthesaid tenancy,the
defendanthasfailed toquit and deliver possession of thesaidhouse – and
premises to the plaintiff, and since the 1st day of March, 1918, is in theunlawful possession' thereof to the plaintiff’s damage of Bs. 250 a month.
The plaintiff by hissaidnotice intimatedtothe defendantthat
in the event of the defendant failing to quit and deliver possession ofthesaidhouse and premises to the plaintiff on the28thdayofFebruary,
1918, he (the defendant) should pay to the plaintiff damages at the rateof Bs. 250 per month from the 1st March, 1918.
Byreason of the defendant's failure to quitanddeliverpossession
of the said house and premises to the plaintiff, the defendant haB becomeliable to pay, and the plaintiff is entitled to recover from the defendant,the said sum of Bs. 250 as damages per month from the 1st March, 1918.
Wherefore the plaintiff prays—
(i.) Foradecree that the defendant be ejected fromthesaid house
and premises .No. 17,situatedat Third CrosB street, Pettah, Colombo,
fully described in the said Schedule A, and the plaintiff put, placed, andquieted in possession thereof.
(ii.) That the defendant be decreed to pay to the plaintiff the saidsum of Bs. 250 as damages per month from the 1st day of March, 1918,until the defendant is ejected from the said house and premises, andthe plaintiff placed and quieted in possession thereof.
(iii.) For costs of this action and for such further or other ruief as tothe Court shall seem meet.
A. St. V. Jayawardene (with him B. F. de Silva), for appellant.
Arulanandan, for respondent.
Cur. ddv. vult.
November 20, 1918. Shaw J.—
This action was instituted on. March 20, 1918. The plaintalleged that the defendant was the tenant of the plaintiff of certainpremises on a monthly tenancy, and at a rent of Bs. 115 a month;that a valid notice to . quit the premises was given by the plaintiffto the defendant, terminating on February 28, 1918; and that,notwithstanding the determination of the tenancy, the defendanthad failed to deliver up possession of the premises.
The plaint concluded with a claim for ejectment, and for damagesfor over-holding from March 1, 1918, until the plaintiff should beplaced in possession, at the rate of Bs. 250 a month. The answer,
21/11so far as is material for the purposes of this appeal, denied thetenancy alleged, and stated that the defendant entered into occupa-tion as a tenant of one Mohamed Haniffa, and continues to occupyas his tenant; no plea' to the jurisdiction was set up in the answer.The Commissioner has dismissed the action, on the ground that theplaint on the face of it shows a claim beyond the jurisdiction of theCourt of Bequests.
The Commissioner based his decision on the case of Hewawiiaranav. Marikar,* which he considered to show that where there is a claimfor ejectment as well as a claim for damages, the interest in thepossession must be valued separately from any damages claimed,and that a claim for damages, not being a merely incidental claim,must be added to the other claim, in order to find out the jurisdictionof the Court, and that, therefore, in the present case, at least therental paid, namely, Bs. 115, must be added to the damages claimed,namely, Bs. 250, which sums together exceeded the monetary juris-diction of the Court.
The case of Hewawitamna v. Marikar 1 is not very easy to under-stand, and I think that the Commissioner has misapprehended thedecision. It does not decide that the rental value must be added tothe damages claimed in order to ascertain the jurisdiction. 'What 1understand it decided on this point was that the dispute betweenthe parties was as to the right to possession for one month, and thatthat right must be valued at the rental reserved by the lease, namely,Bs. 305, and the plaintiff could not, by reducing his claim fordamages to Bs. 300 a month, bring the case within the jurisdictionof the Court of Bequests. That case further decided that a plaintiffcould not claim and recover 'in the Court of Bequests continuingdamages in excess of the monetary jurisdiction.
When the present action was instituted the amount of damagesdue on the claim was well within the jurisdiction of the Court, andI cannot think that the jurisdiction of the Court can depend onthe expedition with which judgment and possession are obtained.To so hold would. render it dangerous for a plaintiff to ever claimcontinuing damages in a Court of Bequests case. I think thecontinuing damages may be claimed, but judgment should berestricted to the monetary jurisdiction of the Court.
Another point argued in the course of the appeal was whether thecase was beyond the jurisdiction of the Court, by reason of its beinga dispute as to the right of possession to land upwards of Bs. 300in value. This, however, is not an objection to the jurisdictionapparent on the face of the plaint itself, and it cannot be nowtaken as no plea to the jurisdiction on the ground as raised by theanswer. Had the objection been properly taken, and the value ofthe premises been shown to be over Bs. 300, I am by no means sure,notwithstanding the decision in Mudiyanse v. Rahman,2 that the* (1916) 19 N. L. B. 239.* (1896) 2 N. L. B. 235.
( 89 )
objection would not have been a good one, but, as it is, there is nonecessity for me to decide the point in the present case.
I allow the appeal with costs, and remit the case to the Court ofBequests for trial on the facts.
– The plaintiff is .entitled to the costs of May 8. The other costs inthe Court below will abide the final decision of the action.
1M8.
Shaw J.
Ueooft.
Zaimtdeen
Set aside and sent back.