12/2551 Thailand Supreme Court Opinion (No. 9201) 2008

Mr. Boonma Kumpoom, Office of National Buddhism and party

Re: Hire of Property, Sub-lease Agreement

Civil  Hire of Property, Sub-lease Agreement (section537, 544)

Civil Procedure Admissibility, adjudication, and double plaint [section 86, second paragraph; section 104, first paragraph; section 173 second paragraph (1)]

Under the Civil Procedure Code section 86, second paragraph; section 104, first paragraph, court has the right of using discretion to restraint the taking of evidence. The defendants testified that this case was a double plaint and submitted the petition for the court to first give a decision according to section 24. When facts with particulars as plaint and the testimony have been considered then the Trial Court can give an order to restraint the taking of evidence.

In the former case, the plaintiff prosecuted for the court’s order that the defendant no. 1 must transfer the right to rent two plots of land which T. was holding with the defendant no. 1 to the plaintiff. For this case, the plaintiff prosecuted for the court to revoke the lease agreement between the defendant no. 1 and the defendant no. 2 together with the lease agreement between the defendant no. 1 and the defendant no.3 with the defendant no. 4. The plaintiff claimed that the defendant no. 1 gave the stated plots of land to be leased to the defendant no.2, the defendant no. 3 together with the defendant no. 4 when the former case was during the trial. These lease agreements happened later on. The plaintiff can not cite or request for the enforcement during the trial of the former case. Furthermore, the request for revoking the lease agreement sin this case affected the right of defendant no. 2 to no. 4 whom were not the litigants in the former case. Then it was considered that this statement of claim was not the same plaint as the former case. Therefore, it was not prohibited as a double plaint as stated in the Civil Procedure Code section 173, second paragraph (1).

The leasing right is the right to claim which is the result of a commitment. The lesser agreed to give the right to the tenant to make benefit from the property which was considered as the obligation binding on an individual not the right on the property or proprietary interest.  In leasing the property, the lesser generally considered the qualification of the tenant in using and taking care of the leased property. Therefore, the tenant’s right is exclusive. When the tenant is dead, the leasing right according to the agreement becomes expiry and is not a transferable succession by the way of inheritance. The transferable of the leasing right which is mentioned in the agreement is not valid as it is only valid when the tenant is still alive.  The permission of the transfer of right of  leasing, given by the lesser , for  the tenant and public can be taken in action only when the tenant is still alive according to the Civil Procedure Code section 544. Therefore, the leasing right which was given to the plaintiff as stated in the testament of T.  was not valid and the defendant no.1 is free and clear from giving the right to the plaintiff for the leasing of the property. The defendant can give the leasing right of these plots of land to the defendant no. 2, defendant no.3 and defendant no.4.

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The plaintiff enforced an action to revoke the lease of Mor Hone temple (unoccupied) at Pai Sub district, Phra Nakhon Si Ayutthaya District, Phra Nakhon Si Ayutthaya Province at the size of 707 Square Wah between the defendant no. 1 and the defendant no.2. and the lease of Kok Makok temple (unoccupied) at Pai Ling Sub district, Phra Nakhon Si Ayutthaya District, Phra Nakhon Si Ayutthaya Province at the size of 446 Square Wah between the defendant no. 2 and the defendant no.3 together with defendant no. 4. If the defendants neglect to register for the cancellation, then the verdict will be used as the declaration of intention of the defendants.

The defendant no. 1 pleaded to dismiss the charge.

The defendant no. 2 pleaded and amended the statement to dismiss the charge.  

The defendant no. 3 and the defendant no. 4 did not appear for the testimony.

During the trial, the defendant no.1 and the defendant no. 2 pleaded for the court to first give a legal interpretation issue. The Trial Court regarded that the case can be adjudicated. The court restrained the taking of evidence from witnesses for the prosecution and witnesses for the defense and made an appointment for attending the judgment.

The Trial Court adjudicated that the enforcement was the double plaint with the decided Civil case (Red Case) no. 62/2547 of the Trial Court. The plaintiff was not being opposed. The charge was dismissed. The Trial Court fee was then omitted.

The plaintiff appealed to the higher court.

The Court of Appeal Region 1 announced the confirmation of the judgment. Fee for The Court of Appeal is omitted.

The plaintiff submitted the petition to the Supreme Court.

The Supreme Court adjudicated that “The fact that both litigants failed to oppose and both had agreed was that Ms. Thongsuk Puukchob had made a lease contract with the defendant no. 3 for 2 plots of land which were the property of Hone temple (unoccupied) at the size of 707 square wah and Kok Makok temple (unoccupied) at the size of 446 square wah. Ms. Thongsuk made a testament to transfer the right of leasing of stated lands to the plaintiff. When Ms. Thongsuk passed away, the plaintiff requested to make the lease contract for stated lands with the defendant which the plaintiff claimed to be the transferable succession by the way of inheritance. The defendant no. 1 refused the process. So the plaintiff prosecuted the defendant no.1 in order to transfer the right of leasing from Ms. Thongsuk to the defendant and request for a temporary protection before justice. The Trial Court has ordered that the defendant no. 1 shall not make any legal documents concerning with the stated lands.  In the mean time, the defendant no.1 made a contract with the defendant no. 2 to lease a piece of land with an area of 707 square wah and the defendant no.3 and no. 4 to lease a piece of land with an area of 446 square wah. Later on, the Trial Court gave a judgment to dismiss the plaintiff in a case where the plaintiff prosecuted the defendant no. 1 on a decided Civil case (Red Case) no.  62/2547. The plaintiff has appealed and the case was under the consideration of the Court of Appeal Region 1. The plaintiff then has sued the four defendants to this case.

There was a problem needed to be scrutinized by the plaintiff Dika petition that whether the witnesses’ restraint of taking of evidence for the prosecution and the defense was valid or not. The court decided that in order for the court to order for the restraint the taking of evidence from both litigants, it is the powers of the court to use discretion within the meaning provided in the Civil Procedure Code section 86, second paragraph and section 104, first paragraph. The defendant no. 1 and the defendant no.2 used the legal interpretation issue as a claim in their testimony in this case that the action enforced by the plaintiff was the double plaint with the decided civil case no. 62/2547 of the Trial Court. The defendants then requested for the court to first give a decision on the legal interpretation issue under the Civil Procedure Code section 24. The Trial Court can restraint the taking of evidence when the facts as appeared from the complaint and testimony were enough of such adjudicate because the facts will not be changed even more evidences were taken. The Trial Court order of restraining the taking of evidence was then legally suitable.

The legal interpretation issue according to the plaintiff petition was whether this case was the double plaint with the decided civil case no. 62/2547 of the Trial Court which was in between the trial of the Court of Appeal Region 1. The Court decided that even the plaintiff claimed for the right over the lease in both the decided civil case no. 62/2547 and this case that Ms. Thongsuk gave the right for leasing the land to the defendant no. 1 to be under the control of the plaintiff as stated in the testament were similar to each other.  But when taking the double plaint in consideration, it must be considered whether both cases had the same cause of action or not. In the former case, the plaintiff prosecution requested the court to force the transfer of rights over the 2 plots of leasing that Ms. Thongsuk has had over the defendant to the plaintiff. For this case, the plaintiff prosecution requested the court to revoke the leasing contract between the defendant no. 1 and defendant no. 2 and the leasing between the defendant no. 1 and the defendant no.3 together with the defendant no. 4. The plaintiff claimed that the defendant no. 1 gave the right of leasing of the stated lands to the defendant no. 2, the defendant no. 3 together with the defendant no. 4 during the time that the former case was during the trial. These lease agreements happened later on. The plaintiff can not cite or request for the enforcement during the trial of the former case Apart from that, the prosecution requested the court to revoke the leasing contract affected the rights of the defendant no. 2 to no. 4 whom were not the litigants in the former case. Therefore, these two cases could not be considered as double plaint as stated in the Civil Procedure Code section 173, second paragraph (1). However, the plaintiff alleged in the complaint that the leasing right is the proprietary interest and should be transfer to the plaintiff according to Ms. Thongsuk’s testament. The leasing right is the right to claim which is the result of a commitment. The lesser agreed to give the right to the tenant to make benefit from the property which was considered as the obligation binding on a person not the right on the property or proprietary interest. In leasing the property, the lesser generally considered the qualification of the tenant in using and taking care of the leased property. Therefore, the tenant’s right is exclusive. When the tenant is dead, the leasing right according to the agreement becomes expiry and is not a transferable succession by the way of inheritance. The transferable of the leasing right which is mentioned in the agreement is not valid as it is only valid when the tenant is still alive.  The permission of the transfer of right of  leasing, given by the lesser , for  the tenant and public can be taken in action only when the tenant is still alive according to the Civil Procedure Code section 544. Therefore, the leasing right which was given to the plaintiff as stated in the testament of Ms. Thongsuk was not valid and the defendant no.1 is free and clear from giving the right to the plaintiff for the leasing of the property.  The defendant no. 1 then was able to lease the stated lands to the defendant no. 3 and the defendant no. 4. For this reason, the plaintiff can not claim that the plaintiff has been violated or has been disputed of rights from the leasing of lands from the defendant no. 1 to the defendant no. 2- no. 4 which the plaintiff claimed that the defendant no. 1 has disobeyed the Trial Court order which gave an order that the defendant no. 1 shall not make any legal documents on the stated lands. The plaintiff can not use this information as evidences to claim for the court to revoke both leases. The Supreme Court gave a verdict that the plaintiff claimed in the Dika appeal did not present the same fact with this case. The Supreme Court affirmed with the verdict from both courts for dismissal of the case with restraint the taking of evidence. The plaintiff’s Dika appeal sounded unreasonable.

The verdict was confirmed. The Supreme Court fee was omitted.

(Chookiat Kanthaweewong – Chalee Tuppavimol – Kumnuan Tiamsaart)

Kasichol Wongwaichol – Summarized
Nopporn Phothisrungsiyakorn – Inspected