Asiya Umma V. Kachi Mohideen

1959 Present: Sinnetamby, J.

ASIYA UMMA, Appellant, and KACHI MOHIDEEN, Respondent

S. C. 226-C. R. Colombo, 68230

    Appeal-Notice of tendering security-omission to address it to the respondent personally -Absence of appellant's signature-Effect-Civil Procedure Code, 8. 756 (1) (3), Schedule I, Form 126.

Rent Restriction Act, No. 29 of 1948-Section 13 (1) '(d)--" Using the premises for an immoral or illegal purpose ".

(i) Where notice of tendering security in appeal is not drawn up strictly in accordance with Form No. 126 of the First Schedule of the Civil Procedure Code but is substantially in conformity with it, an order of abatement should not be entered. In any event, relief will be granted in such a case under sub-section 3 of section 756.

Notice of tendering security in appeal was addressed to the respondent's Proctor and not to the respondent. It was also not signed by the appellant but was issued by the Chief Clerk on the orders of Court.

Held, that relief should be granted under section 756 (3) of the Civil Procedure Code.

Sivaguronathan v. Doresamy (1951) 52 N. L. R. 207, considered.

(ii) Section 13 (1) (d) of the Rent Restriction Act is restricted to cases in which a on tenant has been evicted of keeping or using the premises let for an illegal purpose. Conviction, therefore, in respect of an illegal act, e.g. unlawful possession of cocaine, cannot come within its compass.

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

M. Markhani, for defendant-appellant.

E. R. S. R. Coomaraswamy, With E. B. Vannitamby, for plaintiff respondent.

Cur. adv. vult.

November 19, 1959. SINNETAMBY, J.-

A preliminary objection was taken to the hearing of this appeal and I shall first deal with it.

It was contended for the plaintiff-respondent that the notice of tendering security was bad in as much as it was not drawn up in accordance With form 136 of the first schedule to the Civil Procedure Code. The notice in this case was addressed to the proctor for the respondent and required him to take notice "that the defendant- appellant moves to deposit the sum of Rs. 26 being costs which may be incurred by the respondent in appeal and will on the 19th of December deposit in Court a sum sufficient to cover the expenses of serving notice of appeal". The objection is that this notice should have been addressed to the plaintiff and not to the plaintiff's proctor. It was also not signed by the defendant but issued by the Chief Clerk on the orders of Court. My attention was drawn to the decision in Sivagurunathan v. Doresamy1[1(1951) 52N. L.R. 207.] wherein this Court expressed the view that the notice of tendering security required by 756 of the Civil Procedure Code should be as prescribed in form 126 of the first schedule. The decision, however, while it stresses the need to observe and adopt the prescribed form, does not penalize the appellant for non-compliance by directing that an order of abatement should be entered. It seems to me that even .if the form of notice is not strictly in accordance With the prescribed form it is sufficient if it is substantially the same and in any event failure to observe or to adopt the prescribed form is not of such great materiality as to preclude the Court from granting relief under Section 756 sub-section 3. I do not, therefore, propose to consider this matter any further, as, in my view, even if the form has not been strictly observed, relief should be granted.

I now come to the main question that arises for decision in the (The plaintiff sued the defendant in ejectment and in order to dispense with the authorization of the Rent Restriction Board alleged that defendant was in arrears of rent. Subsequently, he amended his plaint and alleged also that the defendant had been convicted of using premises for an illegal purpose, namely for the purpose of keeping Possessing cocaine without a license from the

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