1949 Present : Gratiaen J.

NUGERA. Appellant, and RICHARDSON, Respondent

S. C. 155-C. R. Colombo, 10,948
 

Rent Restriction Ordinance-Suit for ejectment-Consent decree-Validity of compromise-Civil Procedure Code, section 408.

The limitations placed on the jurisdiction of a Court by the provisions of the Rent Restriction Ordinance in an action against a tenant who-is unwilling to vacate the premises do not in any way fetter the right or the duty of the Court to give effect to lawful compromises willingly entered, into in a pending action between a landlord and his tenant.

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

S. Canagarayar, with M. A. M. Hussain, for defendant appellant..

Ivor Misso, with H. B. White, for plaintiff respondent.

Cur. adv. vult.

 December 7, 1949. GRATIAEN J.-

The appellant was the tenant of a bungalow in Wellawatte to which the provisions of the Rent Restriction Ordinance, No. 60 of 1942, admittedly applied. In May, 1947, .the landlord died, and the respondent, to whom probate was duly issued, administered the estate as executor.

On February 6, 1948, the respondent sued the appellant in the Court of requests of Colombo for rent and ejectment. The appellant filed answer setting up various defences under the Ordinance, and the case came up for trial on June 15, 1948. There can be little doubt that in the normal course of events the Court would have had no jurisdiction to enter judgment in favour of the respondent at the trial except upon proof to its satisfaction of one or other of the relevant facts set out in the provisions of Section 8 of the Ordinance of 1942. When a tenant is in possession and unwilling to give it up, possession can only be restored to the landlord by order of the appropriate Court, and such an order ' can only be made after certain facts specified in the Ordinance are proved or admitted to exist. Section 8' restricts to this extent the jurisdiction of the Courts to make orders in the cases of premises to which the Ordinance applies-vide Barton, v. Fincham [(1921) 2 K. B. 291] where the Court of Appeal decided that, notwithstanding the fact that a tenant had prior to the institution of action agreed .to vacate the premises on a future date, the Court was not absolved from the duty of calling for proof of the relevant facts prescribed by the-analogous legislation in England if the tenant subsequently refused to-implement his agreement. An order for ejectment in invitum cannot otherwise be made because, as Atkin L.J. pointed out, " parties cannot by agreement give the Courts jurisdiction which the Legislature has enacted they are not to have ". Indeed, if the law were otherwise, the very object of the Rent Restriction Ordinance could be defeated.

In the present action, the case did not proceed to trial on June' 15,. 1948, because the parties effected a compromise in terms of Section 408 of the Civil Procedure Code. The terms of the compromise were embodied in a decree in the following terms:-

" It is ordered and decreed of consent' that the defendant be ejected from premises No. 3 situated at St. Lawrence Road, Wellawatte.. Colombo, bounded on the North by premises No. 307, Colombo-Galle-Road, South by St. Lawrence Road, East by premises No. 5, St. Lawrence Road, Wellawatte, and West by Galle Road.

It is further ordered and decreed of consent that the defendant do-pay to the plaintiff damages at Rs. 53.83 per mensem from June 1, 1948, till defendant is rejected from the premises. If defendant pays each month's damages by the 15th of the following month as from July 15, 1948, writs do not issue till July 31, 1949. Indefault both writs to-issue."

The resulting position was that the appellant did not put the respondent to the proof of the various facts which would otherwise have to be established before the Court could enter a decree for ejectment against an unwilling tenant, and in e