WIMALARATNE, J.—Podiaingho v. Perera
1972Present: Wimalaratne, J.
W. PODISINGHO, Appellant, and P. A. W. PERERA, RespondentS. C. 178169—C. R. Colombo, 98558IR. E.
Rent Restriction Act (Cap. 274)—Section 2 (iI) (5) and Regulation 2 of Schedule—“Exceptal premises"—Point of lime ,u 1nhu-h premises may be regarded asexcepted premises—Notice to quit sent by registered pou—Denial by tenant ofreceipt of it—Burden of proof—Evidence Ordinance, a. 114 (e).
Where an action in ejectment is instituted in respect of “ exceptedpremises ” within the meaning of section 2 (4) of the Rent Restriction Act(Cap. 274), tho annual value of the premis-s must be determined as at the timeof the institution of tho action, irrespective of the fact that an inquiry is pendingbefore the Municipal Council concerning an objection taken by the tenantthat the promises are not excepted premises.
The dofendant, a tenant of'the plaintiff, denied that he received a noticeto quit tho premises let. In proof of the notice to quit, the plaintiff reliedupon the copy of the notice and the registered postal nrlielo receipt. Althoughthe copy of tho notice to quit contained the full address of the defendant,there was no evidence that the samo address was inserted on the envelopeenclosing the notice. In the postal article receipt-neither the name of tho roadnor the number of the premises was inserted.
Held, that the evidence was not sufficient to prove that the notice to quithad been properly addressed. The postal receipt was only proof of the postingof a letter, but not proof of tho posting of a letter properly addressed.
A.PPEAL from a judgment of the Court of Requests, Colombo.
Ranganalhan, Q.C., with F. C. Perera, for. the defendant-appellant.
H. W. Jayewardene, Q.C., with M. Somasuiulerair. and 8. Sinnetamby,for the plaintiff-respondent.
Cur. adv. tndt.
May 12, 1972. Wimalaratne, J.—
The defendant was the plaintiff’s tenant of premises Ns. 507/9, Princeof Wales Avenue, Colombo 14, on a monthly rent of Rs. 60. The defendanthad been carrying on the business of a tinker in the premises ifor about20 years. The Municipal Council of Colombo re-assessed the premisesin 1968 and increased the annual value to Rs. 7,845. P3 is a copy of theAssessment Register dated 22.4.68 giving the new annual value.
The plaintiff’s case waB that the premises became “excepted premises ”within the moaning of Section 2 (4) of the Rent Restriction Act (Chapter274), that by his Proctor’s letter dated 23.4.68—a copy of which isthe document Pl-r-he terminated the tenancy from the end of 31 BtMay 1968, and that notwithstanding such termination the defendantcontinued in occupation to the plaintiff’s loss and damage at Rs. 250per month.
WIMALARATNE, .T.—Podiaingho v. Pcrcrtt
The defendant denied receipt of the notice terminating tenanoy.He also pleaded that the annual value of Its. 7,845 was not final, as heobjected to the same and an inquiry was pending before the MunicipalCouncil, and that the premises were not excepted premises.
Two questions arose for determination by the learned Commissionerof Requests, namely—(1) Whether the premises were “excepted premises”within the meaning of the. Rent Restriction Act, and (2) Whether thetenancy had been duly terminated.
With regard to the first question, the contention of learned Counselfor the appellant is that the annual value referred to is the finalannual value, and not any preliminary annual value to which a tenanthas objected. The contention of learned Counsel for the respondentis that the annual value referred to is the annual value “ for the timebeing ” that is at the date of the institution of the action.
Section 2 (4) of the Rent Restriction Act was to apply to all premiseswithin the declared area of operation not being excepted premises.Section 2 (5) provided that the Regulations in the Schedule to the Act.were to determine the premises which were to be excepted premises.Regulation 2 provided that if the annual value as assessed for the purposeof any rates levied “ for the time being ” by the Municipality of Colombo. in respect of business premises exceeded the sum of Rs. 6,000, then suchpremises were to be excepted premises.
.. The annual value for the time being simply means, in my view, theannual value at the time of institution of the action, irrespective of thefact that any objection has been taken to it. If a contrary view is takenthe Rent Restriction Act cannot be properly implemented, for a tenanthas only to raise an objection to the assessment each year and take upthe position that there has been no finality in the assessment. The findingof the learned Commissioner that the premises were excepted premiseswas therefore correct.
In proof of the fact that the tenancy had been duly terminated theplaintiff relied upon the copy of the notice PI, and the registered postalarticle receipt P2. He said that his Proctor sent the notice by registeredpost. The defendant denied receipt of the notice. The plaintiff himselfcarries on business in the adjoining premises, namely 507/6 and 507/8.It was suggested to the plaintiff that he or his employees had everyopportunity of intercepting letters meant for the defendant. The plaintiffdenied this suggestion, but took no steps to prove that the letter hadbeen taken delivery of by the defendant or his agents. The plaintiffrelied upon the presumption laid down in Section 114 (e) of the EvidenceOrdinance—“ that the common course of business has been followedin particular cases ”.
In PI, the copy of the notice, the address of the defendant is giventhus: “ B. W. Podisingho, Globe Tinker Works, No. 507/9, Prince ofWales Avenue, Colombo 14.” The plaintiff’s Proctor did not give evidenceto say that the same address was inserted in the envelope enclosing
Boston t>. Nagaria
the notice. In the postal article receipt P2 the address is given as, “ B. W.Podisingho, Globe Tinker Works, Colombo 14:”; neither the name of theroad nor the number of the premises has been inserted. The learnedCommissioner has held that, “ what is set out in the registered postalarticle receipt P2 is a 'summary of the address of the defendant givenin Pi, and that the registered letter contained the full address givenin it.” He also held that “ Globe Tinker Works is the name of the businesswhich the defendant carries on in the premises in suit ”. Now, there wasno evidence that the business the defendant earned on was known asGlobe Tinker Works ; nor was that the address of the defendant as givenin the pleadings.
Learned Counsel for the respondent contends that it must be presumedthat the Proctor or the clerk who inserted the address of the defendantin PI would have inserted the same address in the envelope in whichPI was enclosed. T am unable to draw such a presumption. It is onlywhere “ a letter is proved to have been properly addressed and posted ”that the presumption arises that. " it reached the addressee in duecourse, even if the signature on the acknowledgment receipt be notproved.”1 It has not been proved in this case that tin: notice of terminationof tenancy has been properly addressed. The postal receipt P2 does notgive an adequate description of the address of I lie defendant. P2 is onlyproof of the posting of a letter, (ml not proof of (he posting of a letterproperly addressed. The conclusion L have arrived at is that the plaintiffhas not proved that the defendant's tenancy was duly terminated.
The appeal of the defendant is allowed, and the plaintiff’s action isdismissed with costs. The defendant will have the costs of appeal.
B. .W. PODISINGHO, Appellant, and P. A. W. PERERA, Respondent