Legal Services and Laws of Sri Lanka
SLR - 1981 Vol.1, Page No - 262
MOHAMED ALI AND OTHERS
WEERARATNE J., SHARVANANDA J.,
AND WANASUNDERA J.,
S. C. APPEAL NO. 6/81
C: A. APPLICATION NO. 997/80
D. C. COLOMBO NO. 3290/2L
JULY 21, 1981,
& SEPTEMBER. 1,1981.
Civil Procedure - Execution proceedings - Constructive possession - Resistance to Fiscal -S.325and236C.P.C.-Can
revision lie from order under s. 326 C.P.C. Article .128 of Constitution? Is the order a final order
(1) The powers of revision vested in the Court of Appeal are very wide and the Court can in a fit caseexercisethatpower
whether or not an appeal lies. Where the law does not give a right of appeal and makes the order final, the CourtofAppeal
may nevertheless exercise its powers of revision, but it should do soonlyinexceptionalcircumstances.Ordinarilythe
Court will, not interfere by way of review, particularly when the law has expressly given anaggrievedpartyanalternate
remedy such as the right to file aseparateactionexceptwhennon-interferencewillcauseadenialofjusticeor
(2) The preliminary objectionthattheappealisnotproperlyconstitutedbecausetheorderappealedfromisan
interlocutory order or judgment and special leave to appeal should have been obtained is not entitled to succeed becausethe
order in question is a final order. There can be a final judgment. in. execution. proceedings.
(3) Held further (a) (Sharvananda J. dissenting) theCourtofAppealhaserredintakingtheviewthatunlessthe
application for: revision was entertained the appellant would not be able to obtain a stay order until hefilesanappeal
and the ultimate remedy would be rendered nugatory and that constituted exceptional circumstances. The factthataJudge's
order is merely wrong is not a sufficient ground for exercising the powers of revision.
(b) The appellant had not complied with Rule 46 of the Supreme Court Rules 1978 and has suppressed from theappellateCourt
some essential material. The claim to title and/or tenancy rights and/or rights of a licensee show a lack of consistencyand
coherence in the appellant's case and the preliminary objection that material facts were suppressed is entitled to succeed.
Cases referred to:
(1) Ibrahim Saibo v. Mansoor 11953) 54 NLR 217.
(2) Marikar v. Dharmapala Unnanse (1934) 36 NLR 201.
(3) Arlis Appuhamy v. Simon (1947) 48 NLR 298.
(4) Palaniappa Chetty v. Mercantile Bank of India (1942) 43 NLR 352
(5) Usoof v. Nadarajah Chettiar (1957) 58 NLR 436.
(6) Subramaniam Chetty v. Soysa (1923) 25 NLR 344.
(7) Arnolis Fernando v. Selestina. Fernando (192214 CL Rec. 71.
(8) Usoof v. The National Bank of India Ltd. (1958) 60 NLR 381, 383.
(9) Zahir v. Perera (1970) 73 NLR 424.
(10) Somawathie v. Cooray (1961) 64 NLR 495
(11) Krishna Pershad Singh v. Motichand (1913) 40 Cal. 635.
(12) Ramchand Manjimal v. Gower Dhandas AIR 1920 PC 86.
(13) Salaman v. Warner (1891) 1 OB 734.
(14) Bozon v. Altrincham U.D.C. (19031 1 KB 547.
(15) Abdul Rahman v. Cassim & Sons AIR 1933 PC 58.
APPEAL from judgment of the Court of Appeal reported at .11981 j. (2) SLR 29.
C. Thiagalingam O. C. with S. Mahenthiram for Petitioner-appellant
H. W. Jayewardene Q.C. with N. S. A. Goonetilleke, A. Mahendran, Lakshman Perera. and Miss P. R. Seneviratne for the
November 20, 1981.
In this matter, the applicant (who is a person claiming in good faith to be inpossessionofcertainpremisesseizedin
execution proceedings) appeals against the order of .the Court of Appeal refusing to revise an order oftheDistrictCourt
in favour of the execution creditor - the plaintiff-respondent in execution proceedings. The main actionwasfiledbythe
plaintiff-respondent Khan Mohamed Ali against his vendor one Marshall, the present defendant respondent,foradeclaration
of title to and vacant possession of the property he had purchased.
Khan Mohamed Ali had :bought this property on deed 2208 of 22.2:1979 from Marshall and the vendor had undertaken to givehim
vacant possession of the premises by 30th June 1980. Failing to get vacant possession, Khan Mohamed Ali filed this actionon
18th October 1979 against: Marshall. When the case came up for hearing, the defendant Marshallconsentedtojudgment,and
decree was entered in favour of Khan Mohamed Ali declaring that he was entitled to the premises andorderingtheejectment
of Marshall and "all those holding under him."
On the 7th of February 1980, when the Fiscal went to execute the writ he found two persons on the premises. The firstwasa
gram seller in occupation of the front portion of the premises, but we are not concerned with him inthiscase.Theother
was the appellant Mohamed Haniffa Rasheed Ali, who stated that he was carrying on business in the premises byvirtueofan
agreement with one Sangaralingam Muttusamy, which heproduced(nowmarkedasA4).Thewritwasaccordinglyreturned
unexecuted. On a later date, the Fiscal, in accordance with the' legal position enunciated in Ibrahim Saibov.Mansoor,54
N.L.R.217(1) gave constructive delivery of possession of the premises to thejudgment-creditor,withoutprejudicetohis
right to take proceedings under section 325, Civil Procedure Code, for a complete and effectual delivery. of possession.
In the objections filed by the present appellant in the inquiry under section 325, he appearstohavetakenanumberof
different positions. He first stated that he' had been placed in possession of the premises by S. Muttusamy who was atenant
of Marshall. Then he went on to add that.
(a) Muttusamy was collecting a sum of Rs. 1350/- per mensem from him and paying a sum of Rs. 600/- to Marshall.
(b) the appellant was in occupation of the premises with the knowledge and acquiescence of Marshall.
(c) about the end of 1978 Marshall had asked the appellant "for an increased rental and asumofRs.750/-waspaidfrom
(d) Marshall had negotiated. with him for the sale of the premises for a sum of Rs. 140,000/- and a sum ofRs.40,000/-as
an advance was paid by him to Marshall on 6th February 1979.
Along with the objections, an affidavit had also been filedbut it hasnotbeenincludedinthepapersfiledbythe
appellant in the Court of Appeal or before us, although produced in. the trial court as 2R5.
At the inquiry appellant's counsel, in justifying the resistance and obstruction by his. client to the execution of thewrit
to possession, explained and clarified what was statedinthestatementofobjections.Counsel.hadstatedthatthe
appellant "remains there on his own rights or that he is there as the tenant of the seller_ Marshall."Theappellant,when
he gave evidence, further amplified his position by not only suggesting that he had a direct relationship with Marshall,but
went further arid produced a certificate of registration under the Business Names Registration Ordinance (2R1), showingthat
he has been carrying on a business under the name "New. Wappa House" in these premises from as early as 23rdJuly1975.He
also stated that Marshall had wanted to sell these premises to the appellant for Rs. 140,000/- and, the appellant hadagreed
to buy them and had actually paid Marshall an advance of Rs. 40,000/-. When the appellant heard that Marshall hadsoldthis
property to the judgment-creditor behind his back, the appellant had complained to the Police and had gone to theextentof
seeing that criminal proceedings were filed in the Magistrate's Court against Marshall. He producedacopyoftheplaint
2R3. In the same context, the appellant also referred to the agreement he had with Muttusamy by whichMuttusamyhadhanded
over to the appellant the management of the business called "Dawalagiri Hotel" carried on byMuttusamyinthesepremises.
This evidence was clearly contradictory in nature.
The learned trial Judge had disbelieved the appellant and rejected his claim. He held that the evidencedidnotshowthat
the appellant was either a tenant of Marshall or of Muttusamy, under whom the appellant had merely a management agreementin
respect of an eating house called Hotel Dawalagiri. Accordingly, in terms of the provisionsofsection.326,thelearned
District Judge held that the resistance and obstruction on thepartoftheappellantwasfrivolousandvexatiousand
directed that the judgment-creditor be placed in possession of the premises.
Now an order made under section 326 against any party other than the judgment-debtor is not appeasable. But,:anyaggrieved
party has been given the right to institute an action to establish his right of title to such property(videsection329).
The appellant however came directly to the Court of Appeal and applied to have that order revised: Apreliminaryobjection,
whether or not an application for revision would lie from an order under section 326 of the Civil Procedure Code, was oneof
the matters debated before the Court of Appeal and also before us.
It may be convenient to dispose of this matter at theoutset.TheCourtofAppeal,afteranexaminationofnumerous
authorities, has rightly taken the view that the powers of revision vested in the Court ofAppealareverywideandthe
Court can in a fit case exercise that power whether or not an appeal lies. When, however, the law does not givearightof
appeal and makes the order final, the Court of Appeal may nevertheless exercise its powers of revision, but it shoulddoso
only in exceptional circumstances. Ordinarily the Court will not interfere by way of review, particularly whenthelawhas
expressly given an. aggrieved party an alternate remedy such as the righttofileaseparateaction,exceptwhennon-
interference will cause a denial of justice or irremediable harm.
The Court of Appeal has however erred in the application of these principles to the facts of this case. The Court was ofthe
view that, unless this application for revision was entertained, the appellant would not beabletoobtainastayorder
until he files an appealand if a stay order was not granted at this stage, the ultimatedecisioninthecasewouldbe
rendered nugatory. The Court was of the opinion that thisconstitutedexceptionalcircumstances:Thisreasoningisnot
tenable for more than one reason and the fact that Court by an oversight had forgotten that there is no rightofappealin
this case is alone sufficient to invalidate its decision. It would be sufficient in the present context alsotostatethat
the fact that a judge's order may be merely wrong should not be a sufficientgroundfortheexerciseofthepowersof
revision in a case such as this and, as far as I could see, the appellant could. not have placed his case any higher.Inan
application for revision of this nature, the threshold is much higher than that required from an appellant exercising amere
right of appeal. When the facts are examined, it will be seen that this was .not such a case and the Court ofAppealshould
not have properly exercised its powers of revision in this matter.
Another matter taken up before the Court of Appeal on behalf of the judgment-creditor was a preliminaryobjectionthatthe
appellant had not complied with Rule 48 of the Supreme Court Rules 1978 and has suppressedfromtheappellatecourtsome
essential material. This rule which is applicable to theappellateprocedurebeforetheCourtofAppealrequiresthe
appellant to place before Court, along with his petition, all "documents material tothecase."Thisobjectionhadbeen
taken when this revision application first came up in the Court of Appeal before a bench presided byWimalaratne,J.After
this bench heard arguments and had reserved its order, Wimalaratne, J., was elevated to the Supreme Court andthecasewas
then argued de novo before another bench consisting of Soza, J., and L. H. de Alwis, J. Counsel or the respondents saidthat
the non-production of this material was not a mere omission but a studied suppression ofrelevantmaterialTherespondent
alleges that the- Business Registration Certificate which was always available to the appellant for production was keptaway
from the Court of Appeal when the first bench heard the case, but at a later stage the appellant sought to produceitafter
that Court had made some adverse comments regarding its non-production. When the case was re-argued, this samedocumentwas
again withheld presumably because the first bench had given an indication that this document went againstthecaseofthe
appellant. The same was said of the Magistrate's Court proceedings which have not been produced.
The appellanton the other hand, has stated that he had to file the revision papers with the utmosturgencywithwhatever
material that was available since he ran a real risk of being evicted from the premisesiftherehadbeentheslightest
delay on his part. It is understandable that in such circumstances a party maywellfinditdifficultorimpossibleto
furnish a complete brief with all the . material documents at such short notice. The Court of Appeal has, therefore, takena
practical view of the matter and was prepared to excuse the initial lapse on the part of theappellantinnotfilingthe
relevant documents along with his petition.
But the complaint against the appellant does not rest there. The Court of Appeal upheld thepreliminaryobjection,because
it took the view that the provisions of regulation 46 have a mandatory effect and any omission must be made goodevenata
late stage. As the Court. of Appeal pointed out, there are provisions in the Rules enabling an amendment of the petitionand
for the tendering of additional material with the permission of court. This the appellant hasfailedtodo.Referringto
this, the Court of Appeal said-
".... yet this does not absolve the petitioner from complying with Rule 46 as soon as it was possible for himtodosoby
moving for amendment of the petition or tender of additional documents.Insteadaslateas19.11.1980hetenderedone
document - a copy of a complaint to the Police (2133) - without verification and without obtaining thepermissionofCourt
and after the pinch of the argument was ascertained at. the earlier hearingconcludedon1.10.1980.Thedocuments--a
certificated copy of the Magistrate's Court case No. JMC 34213 relating to the payment of Rs. 40,000/- by thepetitionerto
the first respondent and the Certificate of Business Registration of the petitioner - remain yet to be presented.Forthese
reasons the preliminary objection is entitled to succeed."
As an excuse for the appellant not complying with Rule 46 even at a late stage, it has been submitted thatbeforehecould
furnish these documents the respondent had come into the Court of Appeal even before the notice returnabledate,andfiled
those documents. The appellant therefore considered it unnecessary to duplicate that material. Let me examine' this excusea
little more closely. While I am against mere technicalities standing in the way of thisCourtdoingjustice,itmustbe
admitted that there are rules and rules. Sometimes courts are expressly vested with powers to mitigatehardships,butmore
often we are called upontodecidewhichrulesaremerelydirectoryandwhichmandatorycarryingcertainadverse
consequences for non-compliance. Many procedural rules have been enactedintheinterestofthedueadministrationof
justice, irrespective of whether or not a non-compliance causes prejudice to the opposite party. It is in thiscontextthat
Judges have stressed the mandatory nature of some rules and the need to keep the channels of procedure openforjusticeto
flow freely and smoothly. The position of course would be worse if such non-compliance also causes prejudice to theopposite
If we are to accede to the appellant's plea that he should be excused from complying with the rule,becausetherespondent
has filed some of these documents, we would be virtually investing an appellant with a discretion whether ornottocomply
with the rule, because the required material has already been filed by the opposite party oritisanticipatedthatthey
would be filed by that party. Such I think is not the law. The material filed by a respondent is in, support of his owncase
and is in no way intended to supplement the appellant's case or to make good any omissions on the part oftheappellant.I
am having in mind here not mere formal documents, but material that have a direct bearing on the issues in a case.
Even assuming that the appellant's excuse is acceptable, it would still cover only those documents which havebeenproduced
by the respondent. Mr. Jayewardene pointed out that there are yet other documents which are material to the case and arenot
before the Court. These are the two documents referred to in judgment of the Court of Appeal. It maybementionedthatan
attempt was made at the last moment when the matter was before us to have these documents filed in this Court. Thishasnot
Mr. Thiagalingam then submitted that he was prepared to argue his case without reference to these documents andstatedthat
the point he is raising before us is a legal one and can be decided with reference onlytotwodocuments,namelyA4and
A11,which are now before us. Even in this connection it may be observed thatdocumentA4,whichnowappearstobethe
foundation of the appellant's argument, was not a document filed by himbutisoneof.thedocumentstenderedbythe
respondent to the Court of Appeal. In fact, even at the inquiry before the learned District Judge,thisdocumenthadbeen
produced by the respondent to meet the appellant's claim to legal title in his own right or atenancyright.Thequestion
then is, whether or- not this issue raised by Mr. Thiagalingam an be decided in isolation without regard to thetotalityof
the. evidence in the case, particularly those documents not produced by the appellant. A considerationoftheevidenceis
thus necessary and incidentally in this inquiry one has to traverse the same ground as is necessary foradecisiononthe
The document All shows that on 31st October 1975, Muttusamy handed over "the management of the said Hotel business"(namely,
Dawalagiri Hotel) of which he claimed to be the owner, to the appellant for a3yearperiodcommencingon1stNovember
1975.. The provisions of the agreement relate to matters of pure management - thepaymentofsalariesandwagesofthe
employees, the payment of electricity. bills and water tax, which obligations, were undertaken by the appellant. There isno
indication, express or implied, showing that these premises were sublet to the appellant although heoccupiedthepremises
for management purposes. The agreement also does not speak ofapaymentofrent.Asconsideration,theappellanthad
'deposited a sum of Rs. 12,250/- as. security on the execution of the agreement and agreed to pay MuttusamyRs.45/-daily
By agreement A4, the management agreement was extended for a further- period of 3 years, commencing on 1st November 1978,on
the same terms as the earlier agreement. Mr. Thiagalingam has submitted that irrespective of any other considerations,these
two agreements are` sufficient to establish a legal interest in the appellant to enable the appellant to prefer a- bonafide
claim to continue in possession and to resist the judgment-creditor, and thatsuchaclaimbytheappellantcannotbe
regarded as being frivolous or vexatious.
There may have been some substance in Mr. Thiagalingam's submission if that was his client's case fromtheoutset,andit
was a straightforward accountwithoutramificationsandotherfactorsbearingonit.Unfortunately,thematteris
complicated by a number of other features and it has become necessary to consider the validity of the appellant's claim ina
wider context than suggested by Mr. Thiagalingam The courts below have thought it fit toconsidercertainotherdocuments
in: addition to the two relied on by Mr. Thiagalingam for the resolution of this issue andtheyareembodiedinthetwo
judgments of the courts below. All those matters are before us in this appeal and the relevancy of-thosedocumentstothis
matter will become evident when the facts are carefully examined.
At the time the respondent Khan Mohamed Ali filed action against Marshall, claimingvacantpossessionofthesepremises,
Muttusamy who was alleged to be Marshall's tenant had been dead. He had died on 1st March 1979andhisbusinessonthese
premises was being conducted ostensibly not by any of his heirs but by the appellant. Up to now his heirs haveneithercome
forward to make a claim to the tenancy nor shown any right or interest in these premises.Muttusamywasthusnotmadea
party to the action. Further, the Certificate of Registration of Business Namesproduced.in.thetrialcourt(butnot
produced before the Court of Appeal or before us) appears to be in line with the appellant's claim for anindependenttitle
and has therefore the effect of destroying the case the appellant has now sought to put forward, based ondocumentsA4and
Al 1.This certificate shows that the appellant has registered himself in his own right as theownerofabusinesscalled
"New Wappa Eating House" at these premises and that this business had beengoingonsince23rdJuly1975.Itwillbe
observed that the agreements A4 and All are in respect of. Dawalagiri Hotel and not '.'New Wappa Eating House." Further,the
management agreements commence 'from 31st October 1975, which is subsequent to the date given in'thecertificate.Allin
all, the certificate cuts across the foundation of the appellant's Claim to be a tenant ofMuttusamy.Theeffectofthis
evidence is to se 0ver the appellant from any connection with the person or persons lawfully entitled to own or occupythese
premises and to isolate him and place him in an independent position . disabling him from makinganyvalidandbonafide
claim. to remain in possession. It is therefore not surprising that the lower courts have rejected the appellant's claim.
At the inquiry before the District Judge, the appellant placed in the forefront of his case his claimthathewasinthe
premises in his own right. The other position he took up that he was a tenant, was asubsidiaryone.ThisCertificateof
Registration of the Business therefore is a vital document without which this case cannotbeproperlydecidedanditis
inconceivable that any court would make a pronouncement on the issues that arose in this case by shuttingitseyestoall
this material. I am therefore unable to say that the Court of Appeal erred when it upheldthepreliminaryobjection.Both
the trial Judge and the Court of Appeal had also considered the facts with great care and Iamagainunabletosaythat
their decision on the merits is erroneous. We have therefore the concurrent findings of factoftwocourtsrejectingthe
claim put forward by the appellant.
The lack of consistency and coherence in the appellant's case, as revealedbythecontradictorynatureofthematerial
adduced by himappeals to be explicable in terms of a submission Mr. Jayewardenemadetous.Hesubmittedthatitis
generally known that tenants are subletting their houses in defiance of: the RentLaws,.by.adoptingvariousrusesand
devices. The so-called management -agreement is one such favorite device whereby a tenant seeks to .givetoathirdparty
exclusive occupation or possession of premises intended for his own occupation. Apart from the conflicting materialproduced
by the appellant himself, the strange silence and absence of any interest in this matter on thepartofMuttusamy'sheirs
lends further credence to this view.
In view of the fact that the preliminary objections are entitled to prevail, I do not think that we are nowcalleduponto
make a pronouncement and to define our position as regards such sham transactions. Suffice it is to say that theappellant's
claim to be a licensee appears to beanafterthoughtputforwardforthefirsttimeinthelaststagesofthese
:proceedings. All the circumstances and the conduct of the parties negative anyintentiontocreatesuchalicence.In
reality, Muttusamy and the appellant had agreed to create a sub-tenancy in favour of the appellant andthetransactionhas
been disguised so as to appear as a simple management agreement. The appellant has only himselftoblameforhispresent
predicament. If a person enters into a sham transaction, it ought
- not to surprise him if he were to find himself in a precarious position where he can neitherachievethedesiredresult
nor fall back on the purported transaction: There is nothing in the appellant's case to help himself out ofthissituation.
Even if his claim to be a - licensee were to be considered, I do not think any court, having regard to thecircumstancesof
this case, would be prepared to concede to him any proprietary right or interest (evenofanequitablenature)whichis
enforceable and valid against third parties. In the result, I am of the view that the Court of AppealandthetrialJudge
were right in their conclusions in rejecting the claim put forward by the appellant.
I finally come to the preliminary objection taken by l r. Jayewardene,namelythatthepresentappealisnotproperly
constituted. He submitted that what is involved in this case is an interlocutory order or judgment and theappellantshould
therefore have obtained the Special Leave of this Court under Article 128(2) of the Constitution. Instead, the appellanthas
got the leave of the Court of Appeal in terms of Article 128(1), but this Mr.Jayewardenesubmitsisofno-avail.The
question is whether the judgment appealed from is a final judgment or an interlocutory judgment. The reportedcasesbrought
to our notice by counsel on both sides do not deal with the interpretation of thepresentconstitutionalprovisions.They
are nevertheless sufficiently close so as to be of some help to us. Mr. Thiagalingam relied on the distinction some ofthese
cases. drew between on the one hand proceedings between the parties to the original action and on the other handproceedings
where third parties come in at the stage of execution proceedings. Vide Marikar v. Dharmapala Unnanse, 36 N.L.R.201(2)
Arlis Appuhamy v. Siman, 48 N.L.R.298(3)Palaniappa Chettyv.MercantileBankofIndia,43N.L.R.352(4) Usoofv.
Nadarajah Chettiar, 58 N.L.R. 436(5). In Subramaniam Chetty v. Soysa, 25 N.L.R. 344(6) Bertram, C: J., appears tohavecome
round to this view, although he had expressed a different view in an earlier case -- Arnolis Fernando v. SelestinaFernando,
(1922) 4 C. L. Rec. 71(7), These decisions held that it was not the intention of the Legislature to deny arightofappeal
to persons who were not parties to the original action and whose rights are affected byfinalordersmadeinproceedings
arising out of the original action. A slightly broader view of what constitutes finality appears to be takenin Woof v.The
National Bank of India Ltd., 60 N. L. R. 381(8) and in someIndiandecisions.IthinkthatthedistinctionwhichMr.
Thiagalingam sought to draw is a valid. one and sufficient for the purposes of the present case. I am therefore oftheview
that this appeal is correctly before us and the preliminary objection taken by Mr. Jayewardene fails.
For the above reasons I would uphold the judgment of the Court of Appeal and dismiss this appeal with costspayabletothe
WEERARATNE, J. - I agree
The plaintiff-respondent instituted this action on 18.10.79 against the defendant-respondent for a declarationoftitlein
respect of premises bearing assessment No. 19, Galle Road, Bambalapitiya, for ejectment of thedefendantandfordamages.
The. premises are admittedly business premises. In his plaint he statedthatbydeedoftransferNo.2208dated22nd
February 1979, the defendant sold and conveyed the said premises to him, and by writing dated thesameday,thedefendant
undertook to give vacant possession of the said premises to the plaintiff on orbeforethe30thdayofJune1979.The
defendant by his answer dated 19th December 1979 admitted the sale and his undertaking togivevacantpossessionof.the
said premises to the plaintiff but stated that handing over of possessionbyhimwasimpossible.Aconsentdecreewas
entered on 19.12.79 declaring the plaintiff entitled to the said premises and ordering the defendant andallthoseholding
under him to be ejected from the said premises. The claim for costs and damages waswithdrawnbytheplaintiff.Writof
possession was taken out and when the Fiscal went to execute thewriton7.2.80,thepetitioner-appellantresistedthe
execution of the writ and refused to vacate the premises. The Fiscal in his report states: "TherewasoneMohamedHaniffa
Rasheed Ali (petitioner-appellant) who said he is carrying on business in the premises on an agreement enteredintobetween
him and one Sangaralingam 'Muttusamy: He produced agreement No. 182 (A4) dated 27.8.78 attested by U.L.M. Farook,N.P.,and
duly registered in the Land Registry. I requested him to vacate the premises, but he refused to do so. He saidthepremises
had been obtained by S. Muttusamy from the defendant in this case." The Fiscal further states: in hisreportthatonthat
occasion the plaintiff, the judgment-creditor, made the following statementtohim:"Iboughtthesepremisesfromthe
defendant L. W. R. P. Marshall. At the time of purchase I was aware that the present occupants did nothaveanyconnection
with the defendant or these premises." I n the circumstances, on 4.3.80 the Fiscal wasabletodeliveronlyconstructive
possession of the premises to the plaintiff. The plaintiff-respondent thereafter byhispetitiondated5.3.80instituted
proceedings under section 325 of the Civil Procedure Code pleading that theclaimofthepetitioner-appellanttobein
possession of the premises 'vas frivolous or vexatious. The petitioner-appellant thereafterfiledstatementofobjections
dated 19.3.80 justifying his possession of the premises, inter-alia, on the following grounds:
(a) The premises in suit is governed by the provisions of the Rent Act.
(b) One S. Muttusamy was the tenant of the premises.
(c) He has been placed in possession of the premises by S. Muttusamy.
(d) The said S. Muttusamy was collecting a sum of Rs. 1,300/per mensem from him and paying a sum of Rs. 600/- to Marshall,
(e) He was in occupation of the premises with the knowledge and acquiescence of the said Marshall.
(f) In or about the end of 1978Marshall had asked him for an increased rental and a sum of Rs. 750/- was paid by him
direct to Marshall for the month of January 1979.
(g) Marshall also negotiated with him for the sale of the premises in suit and agreed to sell the premises for Rs. 140,000/-
, and a sum of Rs. 40,000/- was paid as an advance on 6.2.79.
He further stated: (a) that he had tendered the February rent to Marshall, but the latter had refusedtoacceptsame,(b)
that a sum of Rs. 12,250/- was deposited with S. Muttusamy on account of his articles being placedinhispossession,and
(c) that the plaintiff who was carrying on businessintheadjoiningpremiseswaswellawareofhispossessionand
occupation of the premises in suit.
At the inquiry into the plaintiff's application, Counsel for the petitioner-appellant stated that the premisesinsuitwas
governed by the Rent Act and that the appellant was not bound by the judgment' entered into betweentheplaintiffandthe
defendant Marshall and that the appellant remained in the premises on his own rights, or that he was thereasatenantof
the defendant Marshall. The appellant gave evidence and stated that his businessofNewWappaHotel,whoseregistration
certificate has been marked 2R1, was started on 23rd July 1975 andthatheobtained.thesepremisesfromMuttusamyin
pursuance of the first agreement No. 122 (A11A) dated 31st October 1975 and attested by U. L.M.Farook,N.P.,forthree
years, and the second agreement No. 182 (A4) dated 27th July 1978 for a further period of three years, andthatinJanuary
1979, he paid Marshall Rs. 750/- as rent for the premises. By his order dated 1st August 1980,thelearnedDistrictJudge
rejected the petitioner's objections and held that the claim of the petitioner tobeinpossessionofthepremiseswas
frivolous or vexatious. He disbelieved the evidence of the petitioner-appellant that he had paid the rent direct toMarshall
in January 1979 and become the defendant's tenant. With reference to the petitioner-appellant's claim to be in occupationof
the premises on the strength of the notarial agreements A11A and - A4, the District Judge statedthatsinceMuttusamywas
dead and' since the heirs of Muttusamy were not claiming the tenancy on the death of Muttusamy, "it is notprovedthatthe
appellant is a tenant or a sub-tenant."
As soon as the District Judge gave his order holdingagainstthepetitioner-appellant,thepetitioner-appellantbyhis
petition of the same date moved the Court of Appear bywayofrevisiontosetasidethesaidorderof1.8.80.The
application was supported that date itself and the Court directed issue of notice returnable on 15.8.80 and ordered thestay
of execution proceedings pending the hearing of the application. Theplaintiff-respondentdidnotwaittillthenotice
returnable date, but filed his objections with the necessary documents on 7thAugust1980.Therevisionapplicationwas
ultimately heard by the Court of Appeal on 8th and 9th December 1980. By its judgment dated 30thJanuary1981,thatCourt
affirmed the order of the District Judge and dismissed the revision application with costs.
At the hearing of the revision application by the CourtofAppeal,Counselfortheplaintiff.-respondenthadtakena
preliminary objection that a revision application did not lie and that in any event the petitioner'sapplicationshouldbe
rejected on the ground that the petitioner had not complied with the provisions of . Rule 46 of the SupremeCourtRulesof
1978 published in the Government Gazette of 8.11.78. He referred to section 329 of the Civil Procedure Code, which reads:
"No appeal shall lie from any order made under sections 326 and 327 against any party otherthanthejudgment-debtor.Any
such order shall not bar the right of such party to institute an action to establish his right or title to such property"
and submitted that the legislature, by making the order unappeasable, intended- the order to be final, andsincetheorder
of the District Judge 1.8.80 did not bar .the right of the petitioner appellant toinstituteanactiontoestablishhis
right to possession of the premises in suit, he wasnotwithoutanyremedy.Hefurtherobjectedthattherewereno
exceptional circumstances in this case to justify the exercise of its reversionary powers by the Court of Appeal. Insupport
of his objection he referred to the case of Zahir v. Perera (73 N.L.R. 424)(9). The Court of Appeal rejected the,objection.
It held that there were exceptional circumstances present in this case calling for the intervention oftheCourtbywayof
revision in the interests of justice. It reasoned: "If the order of the District Judge was to stand, onthebasisofthat
order the petitioner-appellant would be ejected and he will be out of possession of his business premises, therebysuffering
irreparable injury, and if the ultimate decision in the action instituted by- him goes in his favourit wouldtornoutto
be. nugatory." I agree that, in the circumstances of the case, the. petitioner was entitled to invoke the Court of Appealto
exercise its revisionary power. (Somawathie v. Cooray - 64 N.L.R. 495(10) and that ifthatCourtwassatisfiedthatthe
order of the District Judge could not be justified, it was bound to revise the order, as there wouldresult,iftheorder
was allowed to operate, grave miscarriage of justice.
The Court of Appeal, however, upheld the other objection oftherespondentthattheapplicationshouldfailfornon-
compliance with Rule 46 of the Supreme Court Rules, 1978. Rule 46 reads as follows:
"Every application made to the Court of Appeal for the exercise of the powers vested in the Court of Appeal byArticles140
and 141 of the Constitution shall be by way of petition and affidavit in support of the averments setoutinthepetition
and shall be accompanied by originals of documents material to the case or duly certifiedcopiesthereofintheformof
In this connexion , reference was made to the judgment of the Court of Appeal in Navaratnasingham v Arumugamandanother[
19801 2 Sri L. R. p.1) where non-compliance with the provisions of Rule 46 was held to be fatal.SozaJ.,inthepresent
judgment, correctly modified his earlier viewexpressedintheaforesaidcasethattheprovisionsofRule46were
imperative, and added that "what I said in the judgment should be read subject to the principle that the law does notexpect
a person to do what is impossible and that there may be occasions when matters of grave urgency arise where apartyhasto
seek the revisionary powers of this Court buts left with no time to obtain the documents as required by Rule 46. Onsuchan
occasion, the Court, no doubtwill take a reasonable view of the matter and extend such indulgenceasisnecessary.to
enable the petitioner to comply with the requirementssubsequenttothefilingofthepetition".Iagreewiththis
observation of Soza J. I n the present case however, Soza J. held that if circumstancesbeyondhiscontrolpreventedthe
petitioner from complying with Rule 46 at the moment of filing the application, he should yet have complied with ,it assoon
as possible. He referred to Rules 5051 and 54 and said that there was provision in the Rules for amendment to thepetition
or tender of additional papers with the permission of the Court to which a petitioner could resort so as to comply withRule
46. In the instant casethe petitioner did not file along with his petition the "originalsofdocumentsmaterialtothe
case, or duly certified copies thereof in the form of exhibits," nor even later. In view of his reasonable apprehensionthat
the order of the District Judge dated 1.8.80 would be carried out withoutdelayandthathewouldbeejectedandhis
application rendered nugatory by the delay involved in getting the certified copies of documents filed in the DistrictCourt
in connexion with the inquiry, the Court of Appeal accepted thattheurgencyofthesituationexcusedhisfilingthe
application for revision without the exhibits referred to in Rule 46. However, it could not condone the petitioner'sfailure
to file those exhibits later, after the petitioner had obtained a stay of execution from the Court. The excuse givenbythe
petitioner was that, since the plaintiff-respondent had without waiting for the notice returnable daterushedtoCourton
7th August 1980 and filed his objections with the certified copies of documents material to the case, no usefulpurposewas
served by duplicating the papers. In this connection the Court of Appealobserved:"Itistruetheplaintiff-respondent
filed a statement annexing a number of documents so as to present an adequate picture of thedisputebetweentheparties.
Yet, this does not absolve the petitioner from complying with Rule 46 as soon as it was possible for him todoso."Inmy
view, a party should ordinarily comply with the requirements of Rule 46, and if he fails to do so, his petition is liableto
be rejected, unless he had good reason for such non-compliance. It is a matter falling within thediscretionoftheCourt
whether, in the circumstances, the petitioner should be excused or not for such non-compliance. In theinstantcase,Iam
satisfied that the plaintiff-respondent, byfurnishingtoCourton7.8.80allthenecessaryexhibits,relievedthe
petitioner of the requirement to file the material documents. The Court was inpossessionofthenecessarymaterialand
hence it was not obligatory on the part of the petitioner to duplicate the exhibits. If the originals or certified copiesof
documents material to the case have been filed of record by any party, whether petitioner or respondent,andareavailable
to Court for a proper appreciation of the issue. involvedintheapplication,thepurposeoftherequirementofthe
petitioner filing those documents is satisfied. A procedural requirement should be construed literally. In my view theCourt
of Appeal has, in the circumstances, erred in upholding this preliminaryobjection.Counselfortheplaintiff-respondent
further pointed out that in any event two documents, viz. certificate of registration and copy of complaint to the Policein
M. C. Colombo case No. 34213 marked 2131 and 2133, respectively, in the inquiry proceedings, had not been furnished toCourt
in time. But, in view of the fact that these documents though marked in the lower court were not material to the decisionin
the case, in the sense that they were not relevant to the contention pressed in support of the petitioner's case and haveno
bearing on the question in issue before the Court, this failure to file those documents. does not justifyrejectionofthe
application. The Rules are designed to facilitate justice and further its endsthey are not designed to trip thepetitioner
for justice. Too technical a construction of the Rules should be guarded against. Counsel for the petitioner wascontentto
confine his argument before that Court to the documents Al 1A and A4. The documents 2R1 and 2R3 werenotrelevantforthe
arguments centering round the documents A11A and A4 and reference to them was not necessary.
By its order dated 30.1.81, the Court of Appeal affirmed the order of the District Judge and dismissed the 'applicationwith
costs. On the date the judgment was delivered, Counsel for the petitioner-appellant orally applied to thatCourtforleave
to appeal to this Court. Counsel for the plaintiff-respondent stated that he had no objection, and theCourtgrantedleave
to appeal. The present appeal has thus come to this Court with the leave of the Court of Appeal.
At the commencement of the hearing oftheappeal,seniorCounsel'fortheplaintiff-respondentraisedapreliminary
objection to the appeal. He submitted that the order of the Court of Appeal appealed from is an interlocutory order andthat
the Court of Appeal had no jurisdiction to grant leave to appeal to the Supreme court from such an order. Hecontendedthat
the petitioner-appellant should have sought and obtained the special leave of this Courttoappeal,andthatsincethis
appeal had not come through that channel, the appeal should be rejected.
Under the provisions of Article 128 of the Constitution, an appeal liestotheSupremeCourtfromanyfinalorderor
judgment of the Court of Appeal, either with the leave of the Court of Appeal oroftheSupremeCourt andfromanin
order/judgment of the Court of Appeal, only on special leave being granted by this Court. Thus,theappellatejurisdiction
of this Court can be invoked by a party to question an interlocutory order or judgment of the Court of Appeal onlywiththe
special leave of this Court. The Court of Appeal has no jurisdiction to- grant leave to appeal fromaninterlocutoryorder
The foundation of Counsel's objection is the assumption that the order appealed from is an interlocutoryorderorjudgment
and not a final order or judgment. The main burden of his argument was that all steps taken after the final determinationof
the action by judgment between the parties and all orders made thereon are interlocutory in their nature. Hesubmittedthat
there cannot be two judgments in an action, that the judgment entered in the present case in favour of the plaintiffagainst
the defendant was the only final judgment in the action, and that the orders madethereafterinthecourseofexecution
proceedings were interlocutory orders, even though made against a person who was not a party to the judgment. Insupportof
his submission, he referred us to the case of Palaniappa Chetty v. Mercantile Bank of India Ltd.(43 N. L. R. 352)(4).In
that case, which was an action on a mortgage bond, after the mortgagedecreehadbeenaffirmedinappeal,theparties
entered into an agreement with regard to the execution of the mortgage decree. Thereafter, application for executionofthe
mortgage decree was made in the District Court, and allowed. On appeal,theorderallowingexecutionwasaffirmed.The
appellant thereupon applied for conditional leave to appeal to the Privy Council from the order allowingexecution.Itwas
held that the order allowing execution was not a final judgment or order within the meaning of Rule 1(a) of the Rules inthe
Schedule to the Appeals (Privy Council) Ordinance. In that case, admittedly, the rights of thepartiestotheactionhad
been finally determined by the mortgage decreethe order allowing executionbythedecree-holderagainstthejudgment-
debtor related only to the manner of execution of the decree and hence was rightly held to be an interlocutoryorderasit
did not decide the rights of the parties. The case of Subramaniam v. Soysa (25 N. L. R. 344) (6) wasdistinguished.Inthe
latter case, the Supreme Court, at the instance of the execution-creditor,setasidethesaleofthejudgment-debtor's
property on the ground of material irregularities in the conduct of the sale. The purchaser, who was a thirdparty,applied
for conditional leave to appeal to the Privy Council. It was held that the order setting aside the sale was a finaljudgment
within the meaning of Rule1 (a) in Schedule I of the Privy Council Ordinance, on the ground that the order setting asidethe
sale finally disposed of the case between the parties to the proceedings, that is to say, thepurchaserandtheexecution
In the case of Usoof v. Nadarajah Chettiar (58 N.L.R. 436) (5), it was held that a judgment of the SupremeCourtdismissing
an appeal from an order of a District Court refusing to set aside the sale of apropertybelongingtothedefendantsin
execution of a decree entered against them was a final judgment within the meaning of Rule 1(a) of the Rules in theSchedule
to the Appeals (Privy Council) Ordinance.
Again, in Usoof v. National Bank of India Ltd. (60 N.L.R. 581) (8)itwasheldthatajudgmentoftheSupremeCourt
dismissing an appeal from an order of the District Court refusing to set aside the sale ofapropertyinexecutionofa
mortgage decree is a "final judgment" within the meaning of the aforesaid Rule 1(a), although the property sold inexecution
was purchased by the judgment-creditor himself and not by a third party.Thefactthatthepropertythatwassoldin
execution of the decree was purchased by the judgment-creditor himself andnotbyathirdpartywasheldtomakeno
difference to the nature of the order on the sale.
In Krishna Pershad Singh v. Motichand ((1913) 40 Cal. 635) (11) which was followed in Subramaniam v. Soysa(25N.L.R.344)
(supra) Lord Moulton, delivering the judgment of the Privy Council, held that the order of the HighCourtrefusingtoset
aside the sale where the property sold in execution of the decree was purchased by the judgment-creditor wasafinalorder
which dealt finally with the rights of the parties and that an appeal to the Privy Council lay to the judgment-debtor.
In Ramchand Manjimal v. Gower Dhandas (A. I. R. (1920) P. C. 86)(12) Viscount Cave observed: "The question as-towhatisa
final order was considered by the Court of Appeal in the case of Salaman v. Warner((1891)1Q.8.734)(13)andthat
decision was followed by the same Court in the case of Bozon v. Altrincham U.D.C. ((1903) 1 K. B. 547) (14) . Theeffectof
those and other judgments is that an order is final if it finally disposes of the rights of the parties." InAbdulRahman
v. Cassim & Sons (A. I. R. (1933) P. C. 58)(15) the Privy Council stated that "the finality must be afinalityinrelation
to the suit. If after the order the suit is still alive, a live suit in which the rights of thepartieshavestilltobe
determined, no appeal lies against it to the Privy Council as it was not a final judgment or order. OfthesePrivyCouncil
decisions, the decision in Krishna Pershad Singh v. Motichand related to execution proceedings. Referring tothisdecision,
Sansoni J. in Usoof v. National Bank of India Ltd. (60 N.L.R. 381at383(8)statedthatheregardedthatdecisionas
authority for the view that there can be a final order or judgment even in execution proceedings between the partiestothe
action. Rejecting the objection that the order refusing the judgment-debtor's application to set aside the saleofproperty
in execution of a mortgage decree is not a final judgment, he relevantlyobserved:"Itseemstometodisposeofthe
argument that when the mortgage decree was entered in this action, it had been finally determined and that there could beno
further final judgment asbetween the parties. While it is true that a ,judgment is not final unlessitfinallydisposes'
of the rights of the parties, I do not see why there cannotbe' a final judgmentinexecutionproceedingswhetherthose
proceedings are between the parties to the action or notand, so far as the judgment-debtors inthiscaseareconcerned,
they have, by the judgment of this Court, finally lost their rights in the mortgaged propertyand execution proceedingsare
no longer live proceedings". I respectfully agree with this statement.
In the case of Marikar v. Dharmapala Unnanse (36 N. L. R: 201) (2) Garvin J. held that where a stranger to adecreeclaimed
possession of the premises in respect of which a writ of possession was issued in his own right and on thegroundthatthe
resistance offered by him was not at the instigation of the judgment-debtor but in assertion ofhisownrights anorder
rejecting his plea and committing him to prison under section 326 of the old Civil Procedure Code determined theproceedings
in which the order was made and that such order was a final order. He stated that after the decree inaCourtofRequests
action, there may be execution proceedings in which judgments having the effect of final judgments may be passed. Dias J.in
Arlis Appuhamy v. Simon (48 N. L. R. 298) (3) followed the principle laid down in this case.
The judgment or order appealed against has determined the appellant's right to possessthe'premisesinsuit.True,the
order will- not, by virtue of section 329 of the Civil Procedure Code, operate as resjudicatainanyactionthatmaybe
instituted by him to establish his right, but, as far as this action is concerned heisboundbytheorderwhichhas
decreed him to be ejected, and the plaintiff-respondent to be in possession. I n relation to the presentaction theorder
has finally disposed of the appellant's right to possess the premises in suit and the execution proceedingshaveceasedto
be live proceedings. For, the above reasons, I am of the view that the judgment or order in question is not aninterlocutory
order but is a final judgment or order within. the meaning of those expressions in Article 128 of the Constitutionandthat
it was competent for the Court of Appeal to have granted leave to appeal from the impugned order. Thepreliminaryobjection
cannot, in the circumstances, be sustained and is accordingly overruled.
In view of the above conclusion as to the nature or quality of the judgment or order appealed against, itisnotnecessary
to examine the. submission of Counsel for the appellant that it does not lie in the mouth of the respondent toquestionthe
validity of the leave granted by the Court of Appeal, after his. Counsel had stated to that Court that hehadnoobjection
to the appellant's application for grant of leave by that Court, and the counter submission ofCounselfortherespondent
that his consent did not preclude him from asserting want of jurisdiction in the Court of Appeal to grant the leave:
The facts of the case, so far as relevant to the question involved in the appeal, are verysimpleandliewithinavery
small compass and have not been controverter by the plaintiff-respondent who, by thefactofhisdoingbusinessinthe
premises adjoining the premises in suit, was in a position to testify that the petitioner appellant was not in occupationof
the premises in suit from 1975 on his own account running a hotel business on an agreement with Muttusamy, the tenant ofthe
premises, as deposed to by him in evidence, if that was so.
Objecting to the plaintiff-respondent's section 325 application complaining. of the petitioner's resistance, thepetitioner-
appellant claimed to be in possession of premises No.19, Gape Road, Bambalapitiya, on his own account. Hebasedhis'claim
on two grounds:
(1) that he had been placed in possession of the premises by Muttusamy. He produced notarial agreementNo.182dated27th
August 1978 to substantiate such claimand
(2) that he had become the tenant of the premises by paying the rental for January1979tothedefendant-respondent,the
vendor of the premises.
His evidence that in January 1979 he had become the tenant of . the defendant-respondent is tenuous and has been rejectedby
the trial Judge. Mr. Thiagalingam did not canvass this finding, but he focussed on the other ground that Muttusamy,whowas
a tenant of the defendant-respondent, had put the petitioner appellant in possession of the premises asfarbackas1975.
He' referred to the notarial agreement No. 122 dated 31st October 1975 (A11A)whereby.Muttusamyhadletoutthehotel
business called and known as 'Dawalagiri Hotel' "with the furniture, fittings,' effects and thingsfullydescribedinthe
schedule thereto to the petitioner-appellant as from 1st November 1975 for a period ofthreeyearswithimmediatevacant
possession" and the petitioner-appellant had agreed to pay him a sum of Rs. 45/.daily as commission: Ontheexpiryofthe
said 3-year period, a lease: of the business for a further period of three years was given bythesaidMuttusamytothe,
petitioner-appellant by notarial agreement No. 182 dated 27th October 1978 (A4). In terms of thesaidnotarialagreements.
Muttusamy placed the petitioner appellant in charge of the hotel business and gave over the management, controlandconduct
of the business for a period of three yearsand to enable the petitioner-appellant to carry on the said hotelbusiness,he
put the petitioner in possession of the premises in which the hotel was being run. The said agreements providedthat"these
presents shall bind the 'parties thereto and their respective heirs, executors and administrators firmly."
Under the notarial agreement No.182 (A4), what was leased was "the hotel business carried on at premises No. 19, GalleRoad,
Bambalapitiya," and hence the petitioner-appellant was entitled to carry on the hotel business inthesaidpremisesuntil
31st October 1981, and, for thepurpose of carrying it on, it was necessary that he should be in possession of thepremises
for that period. The business could not be conceived apart from the premises where itwascarriedon.BoththeDistrict
Judge and the Court of Appeal do not appear to have appreciated that, for the purpose ofthebusinessleasedoutbythe
agreements A11A and A4, the petitioner should have possession of the premises where the business wascarriedonandhence
was put in possession of the premises for the periods covered by the lease. It was not seriously disputed that Muttusamywas
a tenant of the premises in suit at all relevant times. It is true that Muttusamy died on 1st March 1979, but hisdeathdid
not affect the tenure of the lease agreement No. 182 (A4). The heirs of Muttusamy stepped into theshoesofMuttusamy.As
the' premises in suit is subject to the provisions of the Rent Act, No. 2 of 1972, the heirs of Muttusamy are deemed tohave
succeeded to the tenancy of the premises in suit (section 36 of the Rent Actof1972).ThedeathofMuttusamydidnot
terminate the lease of the hotel business, nor the licence tooccupythepremisesinsuitgrantedtothepetitioner-
appellant by him. It was not a revocable licence which terminated with the death of the grantor. The licence was anintegral
part of the lease of the business and endured for the period of the lease. Muttusamy's rights and obligations passedtohis
heirs (clause 12 of A4), and the petitioner-appellant continued tobealicenceeofthepremisesundertheheirsof
Muttusamy. On the death of Muttusamy, the tenancy of the 'premises devolved on his heirs and the petitioner couldremainin
the premises until that tenancy was terminated and decreeenteredagainstthem:Thepetitioner-appellantcouldnotbe
ejected from the premises by the landlord of the premises, viz. the defendant Marshall,. or the plaintiff, unlessanduntil
decree for ejectment of the tenant under the provisions of the Rent Act was obtained. It is to be notedthattheheirsof
Muttusamy were not made parties to the present action and hence they were not bound by the decree entered inthecase.The
petitioner who was holding under them was therefore not affected by such a decree.
The effect of a concluded contract of sub-tenancy is that the . tenant, while remaining liable to the originallandlordfor
the fulfillment of his own contractual obligations, has for the time being transferred to a sub-tenant therighttooccupy
the rented premises. A sub-tenant is not a trespasser and is, in law, not in wrongful. possession. He is entitledtooccupy
the rented premises so long as the tenant was entitled to occupy same. (vide Ibrahim v. Mansoor- 54 N.L.R. 217).Alicensee
under the tenant is in the same position as the sub-tenant, asfarasrighttopossessionoftherentedpremisesis
concerned, vis-a-vis the original landlord until a decree for ejectmenthasbeenenteredagainstthetenant.Thus,as
licensee under Muttusamy and his heirs,. the petitioner-appellant continues in lawful occupation of the premisesasagainst
the plaintiff-respondent and is entitled tocontinueinoccupationuntilthetenancyofMuttusamy'sheirshasbeen
determined and decree for ejectment entered against them.
Section 36 of the Rent Act states that on the death of the tenant of business premises, the heirsorexecutor/administrator
of the estate of the deceased 'tenant "shall . . . . . . . . . . .be deemed, for the purpose of this Act, tobethetenant
of the premises." The District Judge has erred in holding that the heirs of Muttusamy had not become tenants of thepremises
on the death of Muttusamy.
It is not disputed that he petitioner-appellant has been in occupation of the premises insuitatleastfrom1975under
Muttusamy. There has been no nexus between him and the defendant-respondent. This is corroborated by thestatementof.the
plaintiff to the Fiscal: "I bought these premises from the defendant Marshall. At the time of the purchase, I was awarethat
the present occupants did not have any connection with the defendant or these premises." The occupation ofthepremisesby
the petitioner is referable to the aforesaid agreements A11A and A4. TheDistrictJudgehadfailedtodrawtheproper
inferences from the admitted facts of the case and - is in error in holding that the agreement A4 of 1978 is not validafter
the death of Muttusamy. In affirming the District judge's findings of fact, the. Court . of Appeal has also erred.
The Court of Appeal has construed deed No. 182 (A4) as a partnership agreement. This construction is absolutely untenablein
the light of the various clauses of that agreement and has not been supported . by Counsel for the plaintiff-respondent.The
agreement provides for the handing over of the management and control of the hotel business called and known as'Dhawalagiri
Hotel' carried on in premises No.19, Galle Road, Bambalapitiya for a period of three years with immediatevacantpossession
to the petitioner-appellant by Muttusamy, and for the petitioner appellant to payRs.45/-dailyascommissionandfor
Muttusamy to pay the rent of the premises where the business was carried on. Accordingto-thetenorofthe.agreement,
during the said period of three years, the business was tobethebusinessofthepetitioner-appellant.Therewasno
question of the said business being carried on in common between Muttusamy and the petitioner-appellant duringthatperiod.
The evidence shows that the petitioner-appellant was from 1975 carrying on hotel business not under the name of,Dhawalagiri
Hotel' but as 'New Wappa Eating House'. The agreements Nos., 122 and 182 do not prohibit thepetitionerappellantcarrying
on hotel business under a name other than that of Dhawalagiri Hotel andhenceitwasnotwrongfulforthepetitioner-
appellant to have, from 1975, carried on the said business under the name of 'New Wappa EatingHouse.'Inanyevent,the
only person who could have objected to orcomplainedofthepetitioner-appellantcarryingonhotelbusinessundera
different name in the premises in suit was Muttusamy. But Muttusamy never objected to the new name of the Hotel.
The Court 'of Appeal has observed that: "The position of the petitioner, so far as the Court can ascertainit,isthathe
came in here to run the business called 'Dhawalagiri Hotel' in terms of a partnership agreement which he signed.Themutual
obligations of the two partners are set out in the deed. The petitioner: altered the nameofthebusinesstoNewWappa-
Eating House. The claim of the petitioner that he was a sub-tenant based on thedeed.No.182of27.9.78wastherefore
rightly regarded as without any foundation." A proper appreciation of: the nature of the relationship betweenMuttusamyand
the petitioner-appellant established by deed No. 182 of 27,9.78 (A4) does not warrant thisobservation.Theagreementhas
not been looked at in its proper perspective. The conclusion both of the District Judge and of the. Court of Appeal thatthe
claim of the petitioner-appellant to be in possession of the premises in suit is frivolous or vexatiousisbasedontheir
erroneous conclusions and is not justified by the admitted facts of thecase.TheagreementNo.182(A4)entitledthe
petitioner appellant to be in lawful possession of the premises.
In the circumstances, this Court can properly, and indeed should, reach its own conclusion byapplyingthelawtothe-
unquestioned facts, such as the occupation of the premises in suit by the petitioner-appellant on the strength ofthelease
agreements Nos. 122 and 182. This case is not. one to which therule as to 'concurrentfindings'isapplicable.Manifest
and important errors of law and serious misdirection on the proper inference to be drawn from undisputed factscommittedby
the courts below inhibit this Court from attaching too much sanctity to their conclusions. In the circumstances,toprevent
a miscarriage of justice, this Court is compelled to review the conclusions of fact . In my view, far from the claimofthe
petitioner-appellant being 'frivolous or vexatious,' it is well founded in law. The conclusion thattheresistancetothe
execution of the decree for possession was occasioned by the petitioner-appellant claiming in good faith to be inpossession
of the premises on his own account is irresistible.
I allow the appeal, set aside the judgment of the Court of Appeal and theorderoftheDistrictCourtanddismissthe
petition of the plaintiff-respondent to the District Court. The plaintiff respondent shall pay thepetitioner-appellantthe
latter's costs in this Court, in the Court of Appeal and in the District Court.