Cathiravelu V. Dadabhoy

Present: Lascelles C.J. and Wood Renton J. .

CATHIRAVELU v. DADABHOY.

116-D. C. Colombo, 33,550.

Issue whether answer discloses a defence-No evidence taken-Court has power to dismiss action on issue of law only-Civil Procedure Code, s. 147.

The plaintiff raised the issue, Does the answer disclose a defence to the plaintiff's claim?

No evidence was taken, and no admissions were recorded. The District Judge answered the issue in the negative. On appeal it was contended that the District Judge had no right to dispose of the case on an issue in regard to which no evidence had been taken.

Held, that the Court had the power to do so.

Wood Renton J.-Section 147 expressly enables the courts of first instance to dispose of a case on issues of Jaw alone, and for that purpose to postpone the settlement of issues of fact until after the issues of law have been determined.

Gauder v. Gauder 1 commented upon.

THE facts are set out in the judgment of Wood Renton J.

Bawa, K.C. (with him J. Joseph), for the defendant, appellant.

Walter Pereira, K.C. (with him F. M. de Saram), for the respondent.

Cur. adv. vult.

June 26, 1912. Wood Renton J.-

The plaintiff-respondent sues the defendant-appellant in this action as his lessee, under a monthly tenancy, of No. 31, Sea street, Colombo, alleging that the tenancy had been determined by notice to quit, and praying for the ejectment of the appellant from the premises leased, and for compensation at the rate of Rs. 125 a month-the monthly rent under the tenancy-in respect of the appellant's occupation of the premises as an over-holding tenant from September 1, 1911. The appellant in his answer stated that the premises had been let to him for a period of five years from June 1, 1910, at a rent of Rs. 125 a month; that the respondent received from him a sum of Rs. 375 in advance; and that he is, therefore, not entitled to have him ejected from the premises. The respondent admits in his plaint that he did receive the sum of Rs. 375 in advance from the appellant; alleges that it was agreed that that sum should be set off against the last three months of the monthly tenancy; and says that he has appropriated the amount in respect of the rent due to him by the appellant for June, July, and August, 1911. As already mentioned, the compensation claimed by

1 (1909) 1 Cur. L. R. 11.

the appellant in this action dates from September 1, 1911. The agreement of tenancy on which the respondent relies is in writing, is an agreement for a monthly tenancy alone, and is not notarially executed. In the case of a monthly tenancy, of course, notarial V execution is unnecessary. Such execution would, however, be necessary in the case of a lease for a period of five years. The appellant alleges that the agreement between himself and the respondent was, in the first instance, verbal. The terms of that alleged agreement I have already partly stated. The only other terms to which it is necessary to refer are that the appellant was to have an option to terminate the agreement at any time within twelve months from June 1, 1911, on payment to the respondent of a sum of Rs. 100 on account of certain improvements which the respondent undertook to effect on the premises, and that all taxes were to be paid by the respondent. The appellant states that on the conclusion of this verbal agreement he requested the respondent to " make the same legally effective and binding by executing the necessary documents "; that the respondent thereupon caused the agreement sued on to be executed in the English language, of which the appellant was ignorant, and thereafter made additions to it in writing in Tamil. The allegation in the answer next following is important: -

" The plaintiff represented to the defendant that the said document was valid, effectual, and sufficient in law to secure to the defendant the due carrying out of the terms of the said agreement. The defendant, re

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