Substitution or ‘the reserve player on the field’

When a petitioner dies while a court case is pending, an application for substitution can be made. But who is substituted and under what criteria? In this case, in an appeal from the District Court over a rent-ejectment matter ((Careem v. Sivasubramaniam and Another - SLR - 197, Vol 2 of 2003 [2000] LKCA 19; (2003) 2 Sri LR 197 (June 17, 2000)), the appellant died while the appeal was in progress.

The Court of Appeal judgement records what happened subsequent to that in the following manner:

“The plaintiff-appellant filed D.C. Colombo case No.7552/RE under the provisions of section 27 of the Rent Act, No. 7 of 1972, inter alia, to eject the defendant-respondent from the premises morefully described in the schedule to the plaint.

The learned Additional District Judge dismissed the plaintiff’s action and the plaintiff appealed therefrom. While the appeal was pending the plaintiff-appellant died on or about 02.05.2000. The petitioner to this application moves this court for substitution in the room of the deceased plaintiff-appellant to which application the defendant-respondent objects. This order pertains to that objection.”

What were the objections raised against the substitution asked for? One was that there was no valid application. The other was that the person seeking to be substituted is citing a deed of gift of the premises, a document which is not valid in law.

The logic of the objection was that even if the original plaintiff-appellant had rights to the property that is under dispute, the substituted-plaintiff does not have the same rights and therefore he cannot be substituted.

As for the affidavit which was filed under provisions of 760A of the Civil Procedure code, the Appeal Court held that there was an absence of a petition accompanying the application for substitution even though an affidavit had been provided. The Court held that there are no provisions as to how exactly a substitution can be made and therefore the affidavit was taken to be a valid affidavit for the purpose, especially under circumstances that a petition bearing a rendition of the identical affirmations of the affidavit, had been subsequently provided in Court.

Here is the text from the judgement:

“In the instant case the petitioner moves to be substituted in the room of the deceased plaintiff on the basis of the aforesaid deed of gift. Importantly, annexed with the affidavit is the relevant certificate of death of the plaintiff-appellant, marked X1, confirming thereby the death of the original plaintiff-appellant, and consequently that the record is rendered defective. It is also observed that this court had on an earlier occasion, apparently to regularize the application consequent to this objection had directed the petitioner to file a petition even though at a later stage which petition filed thereafter appears to be identical in respect of the averments appearing in the affidavit referred to above. Paragraph 7 of the affidavit refers to the relief claimed and the application of the petitioner is unambiguous.”

As for the other matter, the Court held that an inquiry under provisions of 760A of the Civil Procedure Code, was to determine who should be substituted to ensure continuity of the case.

It should have been obvious that the other matter of whether the rights of the petitioner under the Rent Act is a personal matter to be or not to be extended to the substituted persons, is a matter for argument. The immediate need is to ensure that a proper person be substituted so that the case is continued.

The objection of the respondent was therefore a matter of putting the cart before the horse.

The judgement of the Court of Appeal read:

“I am inclined to the view that the basis for an application under the provision of section 760A referred to above, in the event of the death of a party, would be for the purpose of representing the deceased, solely for the purpose of prosecuting the action and nothing more. In this context the argument of the learned Counsel for the defendant-respondent challenging the application of the petitioner for substitution on the basis that the original action being one under the provisions of the Rent Act and that the action being one of a personal nature and ought to abate on the demise of the plaintiff is a matter to be determined at the argument and I would hold that such matter would not be relevant to an inquiry to appoint a “proper person” to be substituted or entered in the record in place of or in addition to the party who died as provided for by the provisions of the said section 760A.”

The Court of Appeal held that the petitioner seeking to be substituted was not seeking a determination on the rights to the estate of the deceased. To think so in other words was to get ahead of themselves. The matter of who has rights to the estate etc. was a determination to be made by Court subsequently. All that was necessary was to determine whether a proper person would be substituted in the appeal.

The judgement further reads:

“This inquiry to determine a “proper person”, under the provisions of section 760A referred to above, in my view, is one to ensure the continuation of the appeal after the change of status in the action and not to decide the rights of parties.”

Court cited a case, in which it had been held that a deed of gift if on the face of it has been properly executed, is enough of a basis on which a substitution can be made. A ‘proper person’ for substitution should not necessarily be a heir or an administrator but any person that can be substituted, even on the basis of a deed of gift as in this case.

The Judgement reads:

“As held by this court on somewhat similar circumstances in Lawana Gunasekera v Hemawathie & others, decided on 09.09.2002- in the absence of any direction vide provisions of section 760A aforesaid, the “proper person” to be substituted need not be a heir, executor or administrator, but as also held in that case, a person who had been gifted with the premises, the subject matter of the suit, by the deceased on a deed of gift which on the face of the document, as in the instant case, appeared to have been properly attested and executed could be declared a “proper person” to be substituted in place of the plaintiff-appellant solely to prosecute the appeal.”

The application of the petitioner to be substituted in the place of the deceased-appellant solely for the purpose prosecuting the appeal, was allowed with costs.