Kudoos Bhai V. Visvalingam

1948     Present: Nagalingam J.

KUDOOS BHAI, Appellant, and VISVALINGAM, Respondent.

S. C. 84-C. R. Colombo, 4,941.

 

Landlord and tenant-Action for ejection-Joinder of sub-tenant as defendant-Improper-Sub-tenant bound by decree-Liable to be ejected-Civil Procedure Code, Section 325.

In an action by a landlord against his tenant for ejectment the joinder of a sub-tenant as defendant is improper. A sub-tenant is, however, bound by a decree for ejectment entered against the tenant and is liable to be ejected. Should the sub-tenant refuse to quit, it would be open to the landlord to take proceedings under section 325 of the Civil Procedure Code.

APPEAL from a judgment of the Commissioner of requests, Colombo.

Gr. P. J. Kurukulasuriya, for 2nd defendant, appellant.

H. W. Tambiah, for plaintiff, respondent.

 

Cur. adv. vult.

 

December 6, 1948. Nagalingam J.-

A point of some importance in the law of landlord and tenant comes up for adjudication on this appeal. The plaintiff let to the 1st defendant on the terms of a monthly tenancy certain premises referred to in the plaint. The 1st defendant admittedly fell into arrears with his rent, and after due notice terminating his tenancy this action was instituted against him by the plaintiff claiming arrears of rent, ejectment and damages for overholding.

It would appear that the 1st defendant had sublet the premises to the 2nd defendant. The action as originally instituted was against the 1st defendant alone who was named the sole defendant. After service of summons which was effected on him by way of substituted service five months after action, an attempt appears to have been made to compromise the suit. The 1st defendant offered to give over possession of the premises with the sub-tenant but the plaintiff insisted upon vacant possession; the first defendant apparently undertaking to file action against the pub-tenant and have him ejected the action was by consent of parties put off for a period of four months. There is no evidence in the case as to what steps if any were taken by the 1st defendant to implement his part of the terms of settlement. But, the record shows that three months later the plaintiff moved to amend the plaint with the 1st defendant's consent by bringing on the record the 2nd defendant as a party "so that he may have notice of this action and that he may be bound by the decree for ejectment to be entered in this case. " The amendment was 

 

allowed and summons was served on the 2nd defendant who filed answer disputing, inter alia, the right of the plaintiff to add him as a party. The 1st defendant filed no answer and pending the trial of the action against the 2nd defendant, decree for ejectment was entered against the 1st defendant.

At the trial between the plaintiff and the 2nd defendant the learned Commissioner disposed of the plea raised by the 2nd defendant in the following words: -

" The 2nd defendant is only sought to be bound by t

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