- (1.) IN this application for summary judgment under chapter XIIIA of the Rules on the Original Side of this Court, the plaintiff in this suit for eviction upon expiry of the lease by efflux of time seeks a decree for eviction against the sub-lessees; the lessee having accepted the expiry and having surrendered that part of the leasehold premises that was under her direct occupation.
(2.) TWO preliminary points have been taken by the sub-lessees. The first defendant, one of the sub-lessees, says this application is not maintainable as it has not been filed within the window provided by the rules under Chapter xiiia. The first defendant shows that it has filed a written statement and the application was taken out way beyond the time permissible under the rules following the filing of a written statement. The second defendant, the other sub-lessee, says that the subject matter of the claim in respect whereof summary judgment is sought is not covered by the first rule under Chapter xiii-A.
(3.) THE first defendant refers to Rule 3 as to the timing of an application for summary judgment under the provisions of the Chapter: "3. When application to be made.- Where the defendant in any suit which is within the terms of Rule 1 has entered appearance the plaintiff may, as regards any claim which is within the terms of Rule 1, on affidavit made by himself or by any other person who can swear positively to the facts verifying the cause of action and the amount claimed, if any, and stating that in his belief there is no defence to the claim, apply to the Judge for final judgment for the amount claimed together with interest, if any, or for the recovery of the land (with or without rent or mesne profits) as the case may be and costs: provided that as against any defendant who has filed a written statement such application shall not be permissible unless the summons is taken out as in Rule 4 mentioned within ten days after receipt of notice of the entering of appearance under Chapter VIII, rule 18. " The second defendant relies on Rule 1 (B) to suggest that the nature of the claim is beyond the purview of the Chapter: "1. Nature of cases in which applicable. (A ). . . (B) for the recovery of immoveable property with or without a claim for rent or mesne profits by a landlord against a tenant whose term has expired or has been duly determined by notice to quit or has become liable to forfeiture for non-payment of rent or against persons claiming under such tenant. ";