FERNANDO
V.
PADMAKUMARA

SUPREME COURT
AMARATUNGA, J.
IMAM J.AND
SURESH CHANDRA J.
S.C.APPEAL NO. 107/2008
S.C. H.C. (CA) LA NO. 127/2008
W.P/HCCA/COL/57/2008(LA)
DC/Mt. Lavinia No. 687/02/RE
MARCH 25TH, 2011

Rent Act-Section 36- Continuance of the tenancy upon the death of the tenant. if at the time of his death he was in occupation of such premises? Civil Procedure Code - Sections 36(2), 839, Succesionary rights in respect of residential and business premises upon a death of the tenant- Survival of the action.

This is an appeal against the judgment of the Civil Appellate High Court regarding the dismissal of the Appellant's application to substitute the Respondent in a rent and ejectment action.

The Appellant filed an action in the District Court against the Defendant to eject her from the premises in suit, for arrears of rent and for damages. The case was decided ex-parte against the Defendant and decree was entered. The Appellant took steps to have the decree executed. The Fiscal reported that the Defendant had died and thereupon the Appellant moved to have the Respondent substituted in order to serve the ex-parte decree, on the basis that the Defendant had died without children and without leaving an administrable estate and the Respondent was the next of kin of the Defendant. The Respondent filed objections against the application on the ground that he was not the legal representative of the deceased Defendant, that he had not inherited the estate of the deceased Defendant ,that the right to sue did not survive and that he was not doing any business at the premises in suit.

The District Court allowed the application for substitution. Thereafter the Respondent appealed against the order of the District Judge to the Civil Appellate High Court which set aside the order of the District Judge. The present appeal is against the said judgment of the Civil Appellate High Court.

The question before the Supreme Court was whether the action which was basically a tenancy action would survive the death of the tenant, especially when no claims had been made for the succession of the tenancy.

Held:

(1) Since the tenancy action is based on a contract of tenancy, the death of the tenant would terminate the tenancy. Therefore the action would not survive, as in a contract of tenancy death of either party would terminate the contract.

Per Suresh Chandra, J.

" ....... the mere fact that the Respondent was the nephew of the Defendant does not give the right to the Plaintiff to substitute him in the room of the Defendant and forced to inherit the obligations of the Defendant,"

(2) The Plaintiff has no right to appoint the Respondent as a substituted Defendant to serve the decree entered in the case which became a nullity due to the death of the Defendant.

APPEAL from the Judgment of the Civil Appellate High Court of the Western Province.

Romesh De Silva PC, with Rohan Sahabandu and Eraj De Silva for the Plaintiff - Petitioner-Respondent-Petitioner-Respondent

V. Puvitharan with M.J.B. Balachandran for the Respondent - Petitioner - Respondent.

Cur.adv.vult.

March 27, 2012
SURESH CHANDRA, J.

This is an appeal against the judgment of the Civil Appellate High Court of Colombo regarding the dismissal of the Appellant's application to substitute the Respondent in a rent and ejectment case.

The Appellant filed an action in the District Court of Mount Lavinia against the Defendant (Mrs.Mayadunne) to eject her from premises bearing Assessment No.323, Galle Road, Colombo 06, for arrears of rent and for damages. The case went ex-parte against the said Defendant and after entering decree the Appellant took steps to have the decree executed. The Fiscal reported that the said defendant had died and thereupon the Appellant moved to have the respondent substituted in order to serve the ex-parte decree by making an application in terms of Section 839 of the Civil Proce