B ASNAYAK~E J.—Hassanally v. Ja.ya.ra.trve.
1948Present : Basnayake J.
HASSANAL.LY, Appellant, and J AYARATNE, RespondentS. O. 133—-G. R. Colombo, 2,552
Rent Restriction. Ordinance—Premises required for trade or business—Landlordhas other ■partners in business—Not entitled to eject defendant—Ordinance 60 of 1942, Section 8 (c).
The trade or business contemplated in section 8 (c) of the RentRestriction Ordinance is a trade or business carried on by the landlord orlandlords alone and not a business in which there are other partners alongwith such landlord or landlords.
Appear from a judgment of the Commissioner of Requests, Colombo,
A. Hayley, K.G., with H. A. Kottegoda, for plaintiff, appellant.
J. R. V. Ferdinands, with Victor Joseph, for defendant, respondent.
Cur. adv. vult.
December 21, 1948. Basnayake J.—
The plaintiff-appellant (hereinafter referred to as the plaintiff), oneEbramjee Hassanally, is a merchant carrying on, in partnership withhis four brothers and three sons, a wholesale and retail business inimported goods such as glassware, stationery, cutlery, &c., at No. 195,Prince Street, Colombo, under the name of Hassanally & Sons. Thedefendant-respondent (hereinafter referred to as the defendant) is also amerchant carrying on business at No. 85, 4th Cross Street, and No. 234,Gas Works Street, Colombo. The plaintiff and his three sons own No. 85,4th Cross Street and No. 195, Prince Street. The defendant as stated,in his answer occupies only a portion of No. 85 in extent 12 ft. by 16 ft.That portion, the plaintiff asserts, is required for the expansion of thepartnership business of Hassanally & Sons. The plaintiff’s sons, inaddition to being partners in the firm of Hassanally & Sons, own separatebusinesses. His son Abdul Hussain has a separate business at Handy,under the name of Abdul Hussein Ebrahamjee, and another business atNo. 10, Dam Street, and is also a director of the limited liability businessin radio and electrical goods carried on by his two brothers at 3rd CrossStreet, Colombo.
BASNAYAKE J.-—Hassonally v. Jayaratne
The following notice dated 30th April 1946, terminating his tenancy,was sent by Proctor Kanagarajah to the defendant.
“ Under instructions from Mr. Ebramjee Hassanally of 4th CrossStreet, Colombo, I hereby give you notice to quit the premises No. 85,4th Cross Street, Colombo, now occupied by you as his monthlytenant and to deliver possession of same to my client on the 31st day ofMay, 1946, as he requires the premises for his own use and that of hissons.
“ In the event of your failure to do so an action will be instituted toeject you from the said premises with damages at Rs. 35 per monthfrom the 1st day of June, 1946, until my client is placed in possession.”
Although the notice purports to bfe on the instructions of the plaintiff,his son Abdul Hussein admits that it was he who instructed the proctor.As the defendant failed to vacate the premises these proceedings wereinstituted against him by plaint dated 3rd July, 1946. The reason forseeking to have the defendant ejected therefrom is thus stated therein :
“ On the 30th day of April, 1946, the plaintiff gave the defendantdue notice in writing requiring him to quit and deliver possession ofthe said property and premises on or before the 31st day of May, 1946,as the plaintiff required the premises for his own use and of his sons.”
In the amended plaint dated 9th October, 1946, it is stated that the pre-mises are required for the plaintiff’s own use and of his sons in connectionwith their business or trade.
It is significant that although the plaintiff appears to have been presentin Court on the day of trial he did not give evidence, but remained in thebackground and sought to prove his case through his son. There istherefore no sworn testimony from the plaintiff himself that he requiresthe premises. The son says : “ On the 30th of- April, 1946, we gave thedefendant notice to quit at the end of May, 1946. The notice was handedover at Gas Works Street by my younger brother …. Beforenotice to quit was given to the defendant I had spoken to the defendantand told him that we wanted these premises for our own business.”
The learned Commissioner of Requests dismissed the plaintiff’s actionon the ground that they were not reasonably required hy him for hisbusiness and that due notice was not given by him to the defendant.I am not satisfied that the learned Commissioner is wrong. The premisesare required for the partnership business of the plaintiff, his brothers andhis sons. The plaintiff is neither the sole owner of the premises nor thesole owner of the business for the purpose of which he alleges he requiresthem. In the circumstances, the notice is bad, for in the case of jointlandlords notice of the termination of a tenancy must be given by each ofthem 1. As there is no evidence that the plaintiff let the premises as solelandlord, he is not entitled to maintain this action as at presentconstituted, for it is not open to one of four joint landlords to sue theirtenant in ejectment2. It appears from the evidence that the sons alsoregarded themselves as landlords. Receipt D 1 is signed by one of the
1 Parker and Parker v. Knox, 1947 (2) S. A. L. B. 1190.
* Decharms v. Borwood, 10 Bing. 526 ; 4 1W. tfe Scot 400,
Tiffany—Landlord Tenant—Vol, 2, p. 1831,
BASNAYA KE J.—Haasanally v. Jayaratru
plaintiff’s sons. D 2, another receipt, is signed by his son Abdul Hussein,while D 3, the receipt for May, 1944, is stamped with the seal of thepartnership, Ebramjee Hassenally, and signed by his youngest son.
Section 8 (c) of the Rent Restriction Ordinance permits the institutionof an action for ejectment of a tenant of any premises without theauthorisation of the Board in a case where the premises are, in the opinionof the court, reasonably required for the purposes of the landlord’s trade,business, &c. Where a house is owned by more persons than one, theexpression landlord in that section should I think be read as includingthe plural1. Although, so far as I am aware, the question has not beendecided by this Court, there are decisions of the English Courts 2 whichhold that in an Act containing, the words3 “the dwelling-house isreasonably required by tbe landlord …. for occupation as aresidence for—(a) himself ”, the word “landlord ” can be read as includingmore than one person where there is more than one legally entitled to belandlord. But as Asquith Li.J. observed in 'Baker v. Lewis 4 :
“ Where there are two or more joint beneficial owners, (i), (ii), and(iii) of (h) should, I think, be read as follows : in (i) for * himself ’ read‘ themselves ’, in (ii) for * any son or daughter of bis ’ read * any son ordaughter of theirs ’, and in (iii) read * their father or mother ’. Where,read in this way, neither (i), (ii), nor (iii) has any application, suchbeneficial owners would fail, for instance, if they proceed under (ii)and are not a married couple with a child, or if they proceed under (iii)and have not got a parent in common ; but they would fail in that casenot because there are several of them or because they are not a * land-lord ’ within the opening words of the section, but because they couldnot bring themselves within the language of (i), (ii), or (iii), construedin the way I suggest.”
In the case of McIntyre v. Hardcastle5, Tucker L.J. in adopting withapproval the view of Asquith L.J. says :
“ I feel convinced that the interpretation put on it by Asquith L«.J.was the correct one and I do not desire to attempt to put into betterlanguage that which he so clearly expressed in the judgment whichI have just read.”
In the instant case, as I said before, the premises are required for thebusiness of the partnership of which not only those who are landlordsare partners but also others. In such a case I do not think it can be saidthat the premises are required for the purposes of the trade or businessof the landlords. The trade or business contemplated in section 8 (c) ofthe Ordinance is in my view the trade or business carried on by the land-lords alone, and not a business of which they are partners along withothers.
For the above reason the appeal is dismissed with costs.
1 Section 2 (x) of the Interpretation Ordinance.
– Baker v. Lewis, (1946) 2 All E. R. 592 at 595 (a case of two sisters).
Owen v. Overy, decided on 25.10.46, unreported (a case of husband and wife).
Schedule 1, paragraph (h), Rent and Mortgage Interest Restrictions (Amendment)Act, 1933, Section 3 (1).
* (1946) 2 All E. R. 592.
« (1948) 1 All E. R. 696 at 699.
HASSANALLY, Appellant, and JAYARATNE, Respondent