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JUHAR et al v. RAMANATHAN
NLR53V454
1952 Present: Swan J.
JUHAR et al., Appellants, and RAMANATHAN, Respondent
S. C. 41-C. R. Trincomalee, 9,283
Landlord and tenant-Action for
ejectment and damages-Joinder of tenant and subtenant-Propriety of such
joinder-Civil Procedure Code, s. 14.
When a contract of monthly tenancy has been determined by due notice to quit, a
sub-tenant may be joined with the tenant in an action instituted by the landlord
for ejectment and damages.
APPEAL
from a judgment of the Court of Requests,
Trincomalee.
H. W. Tambiah, for the defendants appellants.
E. R. S. R. Coomaraswamy, for the plaintiff respondent.
Cur. adv. vult,
June 5, 1952. SWAN J.-
The plaintiff brought this action against the two defendants to have them
ejected from premises bearing assessment No. 304, Division No. 3, Trincomalee,
and to recover from them, jointly and severally, damages at the rate of Rs.
22/39 per mensem from 1st August, 1951, and costs of action. It was averred in
the plaint that the plaintiff had purchased the premises in question on May 18,
1951, for his own occupation, and that he had on May 26, 1951, duly informed the
1st defendant of his purchase, and that, in the same letter, he required the 1st
defendant to pay rent to him as from June 1, 1951, and to vacate the premises on
or before July 31, 1951. It was further stated in the plaint that the 1st
defendant had acknowledged the plaintiff as his landlord and paid him rent till
July 31, 1951, but had failed to vacate the premises as he was required to do by
the notice dated May 26, 1951. It was also alleged in the plaint that the 1st
defendant had sub-let the premises to the 2nd defendant who was in occupation of
the premises, and that the 2nd defendant was made a party to the action because
he was in such occupation.
The defendants filed a joint
answer in which they admitted that the plaintiff was the owner of the premises
but stated that they could not admit or deny that he had purchased them for his
own use and occupation. They put the plaintiff to the proof of the fact that he
required the premises for his use and occupation, and also put him to the proof
of the fact that the 1st defendant had sub-let the premises to the 2nd
defendant. The 1st defendant alleged that he was not in arrears of rent and
hence had not quitted the premises. The notice to quit was expressly denied.
The parties went to trial on the following issues :-
(1) Are the premises in question reasonably required by the plaintiff for his
own use and occupation ?
(2) (a) Is the first defendant in occupation of the premises ? or
(b) has he sub-let the said premises to the 2nd defendant or any other person ?
(3) If either issue 2 (a) or 2 (b) is answered in favour of the plaintiff are
the defendants liable to be ejected from the premises ?
(4) Is there a misjoinder of parties inasmuch as there is no privity of contract
between the plaintiff and the 2nd defendant ?
The learned Commissioner answered all these issues in the plaintiff's favour and
gave him judgment as prayed for with costs. The only point urged by Counsel for
the appellant was the issue of misjoinder. Mr. Thambiah contends that there was
a misjoinder of parties and causes of action, and that the entire action should
have been dismissed. But the objection taken at the trial was only as to
misjoinder of defendants. In the circumstances I am not prepared to agree to
Counsel's submission that if, in point of fact, there was a misjoinder of
parties and causes of action this Court must dismiss the plaintiff's action
against both defendants. Where a plea of misjoinder of defendants and causes of
action is taken it must be tried as a preliminary issue ; and the Court should,
if it finds against the plaintiff, give him an opportunity of electing against
which defendant or defendants he should proceed. But in this case I cannot see
that there is a misjoinder of causes of action ; so that the o
