029-SLLR-SLLR-1986-V-1-JOHN-WILSON-v.-PERERA-AND-ANOTHER.pdf
CA
Ceylon Ceramics Corp. v. Premadasa (H. A. G. De Silva, J.)
291
JOHN WILSONv.
PERERA AND ANOTHER
SUPREME COURT. ■
SHARVANANDA, C.J., COLIN-THOME, J. AND TAMBIAH. J.S.C. APPEAL No. 19/85.
A. (S.C.) No. 881/75 (F).
C. COLOMBO 13690/L.
FEBRUARY 3. 1986.
Rei vindicatio action by executor-Claim of tenancy by devise by Last Will of deceasedtenant a Buddhist priest-Partnership with deceased tenant-S. 36 of Rent Act. No. 7 of1972-Dismissal by Rent Control Board of application by executor to Rent ControlBoard under s. 18 (3) of Rent Restriction Act for declaration that defendant is not thetenant-Does such dismissal support inference that defendant is tenant?
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Where a person claiming to be the heir and partner in business of a deceased Buddhistpriest who was the tenant of certain premises gave notice to the landlord under section18 (2) of the Rent Restriction Act that he would be continuing as the tenant and thelandlord sought a declaration from the Rent Control Board that the claimant should notbe deemed to be the tenant and that application was dismissed in view of the passageof the new Rent Act. No. 7 of 1972-
Held- _
The defendant was not entitled to give notice under s. 18 (2) of the Rent RestrictionAct as he was not the surviving spouse or child, parent, brother or sister ot thedeceased tenant or a dependant of the deceased tenant immediately prior to the deathof the tenant and not a member of the deceased tenant's household during the wholeof the period of three months preceding his death. A decision by the Rent Control Boardthat the defendant is entitled to give notice would be a nullity on grounds ofjurisdictional error.
The notice under section 18(2) of the Rent Restriction Act must give the basis andparticulars of the claim to be entitled to be deemed to be a tenant (Wickremasinghe v.Abdul Rahim (1954)56 NLR 280 not followed on tms point
Semble:-
The passage of the Rent Act No. 7 of 1972 could not have made the pendingproceedings to have come to an end because s. 46 (2) provides for the continuance ofsuch proceedings under the repealed law.
Cases referred to:
Wickremasinghe v. Abdul Rahim (1954) 56 NLR 280.
Karunaratne v. Fernando (1970) 73 NLR 457.
APPEAL from judgment of the Court of Appeal.
H. L. de Silva. P C. with S. C. Crosette Tambiah and V. R. Selvaiajah for thesubstituted-defendant-appellant.
J. W. Subasinghe. P C with D. J. C. Nilanduwa for plaintiff-respndent.
Cur. adv. vult.
February 27, 1 986
SHARVANANDA, C.J.
This is a rei vindicatio action filed by the plaintiff as executor of theestate of late Dr. T. Sivapragasam In his plaint he averred that Dr.Sivapragasam. was the owner of premises No. 102, Deans Road, thathe died on 30.5.1970 leaving a last will which was admitted to
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John Wilson v. Perera (Sharvananda. C.J.)
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Probate, by which he appointed the plaintiff as executor. He furtheraverred that the defendant without any manner of right, title orinterest in the said premises was since December 1970 in wrongfuland unlawful occupation of the premises. He therefore prayed for adeclaration of title to the premises, for ejectment of the defendanttherefrom and for damages which was later agreed at Rs. 75 permonth from December, 1970. The defendant in his answer statedthat Rev. Rewata was the tenant of the premises and that he diedleaving Last Will bearing No. 1433 dated 21.5.1967, by which heappointed the defendant as his Executor and heir of the businesscarried out in the premises. He further averred that he was a partner ofthe said business carried on by him and the deceased-tenant in thepremises. He asserted that by virtue of section 36 of the Rent Act, No.7 of 1972, the plaintiff cannot have and maintain the said action.
The premises, the subject-matter of the action are businesspremises governed by the provisions of the Rent Restriction Act of1948.
At the trial it was conceded that the plaintiff was the owner of thepremises in suit. The case proceeded to trial mainly on the issuewhether the defendant was a lawful tenant. The plaintiff's agent alonegave evidence. Defendant did not give any evidence. The DistrictJudge dismissed the plaintiff's action on the ground that the plaintiffcould not maintain this action in view of the fact that the plaintiff hadmade an application to the Rent Control Board in terms of section18(3) of the Rent Restriction Act, to have it declared that the"defendant shall not be deemed to be the tenant of the premises." TheDistrict Judge reasoned that as the application of the plaintiff wasdismissed by the Rent Control Board the defendant must be deemedto be a tenant of the premises. He therefore dismissed the plaintiff'saction. The plaintiff preferred an appeal to the Court of Appeal andthat court by its order dated 12th November 1984, allowed theappeal and set aside the judgment of the District Judge and held thatthe District Judge had erred in holding that the defendant should, inlaw, be deemed to be a tenant of the premises. The defendant haspreferred this appeal from the order of the Court of Appeal.
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It is admitted that the original tenant of the premises was oneRev. Rewata, that he died on 12.1 2.1970, and that thedefendant-appellant was the tenant of the adjoining premises atDeans Road. After the death of Rev. Rewata. the defendant sentnotice marked P1 to the plaintiff. The notice runs as follows
"Ay. Dr. P. P. Perera
No. 100. Deans Road.
Colombo 10.
1 7 th January. 1971.
John Wilson Esqr.,
Proctor S.C.,
Dam Street.
Colombo.
Dear Sir,
Premises No. 102, Deans Road, Maradana, Colombo
This is to inform you that Rev. Rewata. the tenant of the above premises died on
the 1 2th day of December, 1970.
I hereby give you notice under section 18(1) of the Rent Restriction Act that I proposeto continue in occupation of the premises as tenant thereof.
All rents up to the end of December 1970. have been paid.
I am herewith forwarding a Money Order in your favour for the sum of Rs 7 1 95
being rent for the month of January. 1971
Please acknowledge receipt.
Yours faithfully.
Sgd .
The plaintiff's Attorney-at-Law replied by P2 of 24.03.1971. In P2he stated that the plaintiff "is unable to accept you as the tenant of theabove premises as you are not a person entitled to give notice undersection 18 of the Rent Restriction Act." He returned the Money OrderThereafter on 17.09.197 1 the plaintiff made an application toColombo Rent Control Board under section 18(3) of the RentRestriction Act. In that application he stated that the tenant Rev.Rewata died on 12.12.1970 and that the defendant gave noticeunder section 18 of the Rent Restriction Act. dated 17.01.197 1proposing to continue occupation of the premises as tenant. He
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averred that the defendant was nor a person entitled to give the saidnotice under section 18(2) of the Act andbprayed that "the Board domake an order under section 18 (3) that the respondent is a person notentitled to give notice under section 18(3) Of the Rent RestrictionAct"; while the proceedings of the Rent Control Board were pendingthe Rent Restriction Act was repealed and was replaced by the RentAct, No. 7 of 1972 which came into force on 01.03.1972. On02.09.1972 the Colombo Rent Contcol Board made order that "sincethe Rent Restriction Act under which the application had been made tothe Board was repealed and as there was no section in the presentRent Act similar to section 1 8 of the Rent Restriction Act, the Boardconsiders that this application cannot be maintained any further," anddismissed the application. This is clearly a per incuriam order for thereason that section 46(2) of the Rent Act, No.7 of 1972 provided forthe continuance of the proceedings by. the Rent Control Board,constituted under the Rent Restriction Act, upon applications whichwere made under the provisions of the repealed Rent Restriction Act.The decision of the Board to dismiss the plaintiff's application on theground stated by it is a decision which the Board had no jurisdiction totake because it was declining to adjudicate on a matter which it wasits duty to adjudicate and hence it is a nullity. The plaintiff however didynot appeal to the Board of Review against the said order nor did hetake steps by way of a Writ of Certiorari or Mandamus to have the saidorder set aside and for directions that the Board continue with theproceedings. Instead he filed the present action on 14.08.1973. Thedefendant-appellant contends that since the plaintiff's application tothe Rent Control Board under section 18 of the Rent Restriction Acthad been dismissed by the Board, the defendant should be deemedfor the purpose of the Rent Act to be the tenant of the premises. Itwas also submitted that the plaintiff could not maintain this action in acourt of law as the Rent Restriction Act provides special machinery towhich the landlord must resort to have it declared that the defendantwas not entitled .to give the notice PI. In support of his contentionCounsel for the defendant-appellant referred us to the judgments inWickremasinghe v. Abdul Rahim (1) and in Karunaratne v. Fernando
The facts in Wickremasinghe v. Abdul Rahim (supra), were asfollows: The plaintiff was the owner of premises bearing assessmentNo. 371, Dam Street, Colombo. She let the same on a monthlytenancy at a rental of Rs. 108.50 to one S. A. Seyad Hamid. SeyadHamid died on the 24th December, 1951 and thereafter on
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09.01.1952 his brother the defendant gave notice to the plaintiff interms of section 18(2) of the Rent Act that he proposed to continue inoccupation of the premises as tenant thereof. The plaintiff replied tothis letter on 12.01.1952 expressing unwillingness to accept thenotice and also denying the’ right of the defendant to avail himself ofthe provisions of section 18(2) of the Rent Restriction Act. Theplaintiff instituted the action to eject the defendant on the ground thathe was in wrongful and unlawful occupation of the premises. Thedefendant claimed that he should be regarded as plaintiffs tenant ashe had complied with the provisions of section 18(2) by giving therequired notice. He contended that in view of the failure on the part ofthe plaintiff to make an application to the Rent Control Board undersection 18(3) on receiving the notice he must be deemed to be thetenant of the premises. The contention was upheld by the SupremeCourt which stated "that the subsection (2) is one of the manyinstances to be found in the Act where a statutory fiction has beencreated-in this case an artificial construction being given to the word'tenant'. The subsection also provides the only method by which the'tenant' so created can be divested of this artificial character viz: by anorder of the Board obtained on an application made to it by thelandlord of the premises as provided in subsection 3. In that caseCounsel for the plaintiff also contended that the notice given by thedefendant under section 18(3) was not valid as it did not set out thatthe defendant had been a member of the deceased's householdduring the required period. The court held that-
"that this subsection does not provide that the requirement undersubsection 2(a) and (b) must be inserted in the notice although it isdesirable that those particulars should be given. The notice given bythe defendant states that he is-the brother of the deceased tenantand that he proposes to continue in occupation in terms of section1 8(2)(b). In my view that is sufficient compliance with the provisionsof subsection (2)."
In Karunaratne v. Fernando (supra), the defendant's husband was atenant of-the premises in suit. He died on 13.1.64 and on 21.1.64,his widow the defendant sent a notice to the plaintiff under section 18of the Rent Restriction Act. The plaintiff replied that the defendant wasnot entitled to send such a notice in view of the fact that herhusband s tenancy had already been terminated on 30.1 1.1963. Theplaintiff then filed action for declaration of title and ejectment of thedefendant. The Supreme Court held that if a landlord challenges the
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right of a person who has given him notice under section 18 (2) tocontinue the tenancy, he should have taken the matter to the RentControl Board under section 1 8 (3) of the Act, instead of filing actionparticularly for title and ejectment. It observed that-
"The legislature has thought it fit that the Board should decide, certain questions which arise under the action without the necessityfor expensive and often tardy litigation of the court."
Section 18 of the Rent Restriction Act provides as follows:
"18. Notwithstanding anything in any other'law, but subject toany provision to the contrary in any written contract or agreement-,the succeeding provisions of this section shall have effect in theevent of the death of the tenant of any premises to which this Actapplies-
Any person who
is the surviving spouse or the child, parent, brother or sisterof the deceased tenant of the premises, or was adependant of the deceased tenant of the premisesimmediately prior to his death; and.
was a member of the household of the deceased tenant(whether in those premises or in any other premises) duringthe whole- of the period of three months preceding_ hisdeath"
shall be entitled to give written notice to the landlord, before thetenth day of the month succeeding that in which the deathoccurred, to the effect that he proposes to continue in occupationof the premises as tenant thereof; and upon such written noticebeing given, such person shall, subject to any order of the Board ashereinafter provided, be deemed for the purposes of this Act to bethe tenant of the premises with effect from the first day of suchsucceeding month, and the provisions of this Act shall applyaccordingly.
The landlord of the premises in relation to which any writtennotice is given under subsection (2) by any person may makeapplication to the Board for an order declaring that such person shall
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ft986] ; SriL.R.
not be deemed as provided in that subsection to be the tenant ofthe premises; and the board may make order accordingly if satisfiedthat such person is not entitled to give the notice for which provisionis made by that sub-section.
In the event of written notice being given under subsection(2) by more than one person, the Board may in its discretion, uponapplication made either by the landlord or by any such person, makeorder declaring which, if any, of such persons shall be the personwho shall for the purposes of this Act be deemed to be the tenant ofthe premises."
It is to be noted that the defendant in Wickremasinghe v. AbdulRahim (supra), who gave notice under section 18 (2) was admittedlythe brother of the deceased tenant and the defendant in Karunaratnev. Fernando (supra), who gave notice was admittedly the widow ofthe deceased tenant. In the present case the defendant is not thesurviving spouse or child,'parent, brother or sister of the deceasedtenant or was the dependant of the deceased tenant and was not amember of the household of the deceased tenant. In his answer in thepresent action he claimed that he was an Executor and heir and apartner of the business carried on in the premises. The defendant didnot give evidence to subtantiate his claim to that status. In hissubmission, counsel for the defendant appellant stated that he was adependant of the deceased tenant. The defendant who is an ayurvedicmedical practitioner carrying on his business in premises, viz.: 100,Deans Road (vide P1) did not however choose to make such anuntenable claim; the defendant was undoubtedly not a person entitledto give the notice authorised by section 18 (2).
In his notice P1 the defendant did not even claim that he was relatedto the deceased tenant in any one of the relationships set out insection 18(2) of the Act. Section 18(2) specifically says only "suchperson referred to earlier in 1 8(2) (a) & (fc>) shall, subject to any orderof the Board, may be deemed for the purpose of the Act to be a tenantof the premises". So that unless such a person is, or, bona fide,claims to be any one of the persons postulated in section 18 (2) (a)and (b) who is entitled to give notice under section 18 (2), he cannotavail himself of'the provisions of section 18 (2) of the Act and cannotbe deemed to be a tenant of the premises in terms of that section. Aperson who admittedly does not come within the pale of section18 (2) cannot be deemed-to be a tenant of the premises just because
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he had purported to give notice under that section. In my view only aperson who-is or bona fide claims that he or she is ,the survivingspouse or child, parent, brother or sister of the deceased tenant orwas a dependant of the deceased tenant and was a member of the'household during the relevant p'eriod preceding the death of the tenantis competent to give notice under section 18 (2) of the RentRestriction Act and who can, unless the board orders otherwise, bedeemed to be a tenant of the premises. Only a person who claimssuch relationship to the deceased-tenant as postulated by section18 (2) (a) & (b) of the Rent Restriction Act, can take advantage of theprovisions of section 18 (2) of the Rent Act. When such a persondoes so the Rent Control Board can inquire into the validity of the claimand determine whether the person seeking to continue to be a tenantis in fact a spouse, child, parent, brother or sister of the deceasedtenant or was a dependant of the deceased tenant, and was amember of the household of the deceased; the board has jurisdictionto decide that issue. The Board will be acting in excess of jurisdiction ifit decides that a person .who admittedly does not come within thedescription of the persons mentioned in section 18 (2) (a) & (b) is aperson entitled to give the notice. Such a decision will be a nullity onthe ground of jurisdictional error.
I cannot agree with that part of the judgment of De Silva, J. inWickremasinghe v. Abdul Rahim (supra), that the requirement undersubsection 18 (2) (a) & (b) need not be inserted in the noticepurported to be given under section 18' (2). Unless the landlord isapprised of the basis or capacity in which the person is giving noticeunder section 18 (2), he will not be able to.inform himself and decideas to the validity of the notice. Otherwise, as this case shows, anytrespasser can subvert the whole purpose of section 18 of the RentAct by frivolously purporting to give notice under section 18 andimposing himself on the landlord. True in this case the plaintiff tookproceedings before the Rent Control Board and the Rent ControlBoard acting on a misconception of the law dismissed the application.The undisputed facts show that the defendant was not entitled to givea notice under section 18 (2) of the Rent Restriction Act and hencecould not qualify himself 'to be deemed a tenant succeeding thedeceased tenant. I agree with the Court of Appeal that on the writtennotice P1, the defendant cannot in-law be deemed to be a tenant ofthe premises. The word "deemed" creates a statutory fiction andunless all the facts giving rise to that fiction exist, the fiction cannot be
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invoked or imported. I agree also with the Court of Appeal that thewritten notice purporting to be given under section 18 (2) of the RentAct should set out the basis upon which the defendant claims to beentitled to give notice to the landlord. Since the notice P1 given by thedefendent was invalid for the reason that it was not competent for thedefendant to give that notice, it was void in law and no order of theRent Control Board could have given validity to it.
The appeal is dismissed with costs.
COLIN-THOME, J. – I agree.
TAMBIAH, J. – I agree.
Appeal dismissed.