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Present: De Sampayo A.C.J. and Garvin A.J.KARUNARATNE HAMINE v. FERNANDO et at.83—D. C. Galle, 19,934.
Lease—Covenant to keep land regularly weeded—Breach of covenant—Action for damages and cancellation—Is lessor of rural propertyrestricted to action for damages only—Power of Court to grantboth cancellation and damages.
Plaintiff brought this action for cancellation of lease and damagesalleging that his lessee had failed to carry out a covenant to keep theland weeded regularly. It was contended for the defendant thata lease of rural property cannot be cancelled at all, and that theonly remedy the lessor had was to ask for damages, and furtherthat, in any event, the Court could not grant both a cancellationof the lease and a judgment for damages.
Held, that the lessee was not restricted to a claim for damages,and that he was entitled for damages for past acts and for can-cellation of the lease.
HIS was an action for the cancellation of a lease of a cinnamonplantation on the ground-of failure to pay the rent regularly
and failure to weed the land annually, and for the recovery of Rs. 300as damages due to the alleged failure to weed, and also for therecovery of one of the instalments of rent due.
The defendants brought into Court the instalment of rent suedfor and pleaded that they had weeded the land regularly, anddenied that the plaintiff sustained any damage.
The District Judge decided in favour of the plaintiff, and directedthe cancellation of the deed of lease and the payment of Rs. 300as damages.
The defendants appealed.
J. S. Jayawardene, for defendants, appellants.
de Zoysa (with him C. W. Perera and Amarasekera), forplaintiff, respondent.
April 25, 1923. De Sampayo A.C.J.—
The plaintiff is the proprietor of a cinnamon land. In May, 1919,he leased it to the defendants for a period of five years at a stipulatedrent." In the lease it was provided that the defendants shouldweed and clear the land on taking over possession, and thereafterweed and clear the land regularly once a year during the currencyof the lease. The plaintiff brought this action in September, 1922,alleging that the defendants had failed to clear the land since the
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first clearing on the execution of the lease, and that in consequenceserious damage and loss had been caused by the defendants, and heasked for damages for the past loss and also asked for a cancellationof the lease. The District Judge’s finding on the facts is that thedefendants not merely committed a breach of the covenant to weedthe land, but their neglect was so serious that it caused permanentdeterioration and destruction of the property. This finding isquite supported by the evidence in the case. It would seem thatin 1922, when this action was brought, the jungle and weeds on theland were higher even than the cinnamon bushes and much abovethe height of a man. It is also shown that by reason of this neglectabout 300 bushes per acre had been killed off. I think the DistrictJudge’s finding not only is correct on the question of fact, but theplaintiff is rightly held entitled to a cancellation of the lease.
Mr. J. S. Jayawardene, for the defendants, has argued that underthe Roman-Dutch law a lease of rural property cannot be cancelledat all, and that the only remedy for a landlord is to ask for damages.I do not think the citations made by him support his contention.On the contrary, the last of the authorities he cited, namely, thecase of Silva v. Obeysekera1 decided that it is always a question forthe Court as to whether any particular abuse of the leased propertymight be more appropriately dealt with by damages only, or by acancellation of the lease. The District Judge has thought, and Ithink he is right, that the circumstances of the case call for thecancellation of the lease. Then it is argued that the Court couldnot grant both a cancellation of the lease and a judgment fordamages. I have already said that the damages claimed by theplaintiff were in respect of past acts, and his prayer for relief asregards cancellation is that further damage and loss may not beincurred. Mr. Jayawardene has not been able to cite any specificauthority that both damages and cancellation cannot be grantedin such circumstances as these. To my mind, in principle, theCourt can and ought to be able to grant relief of the kind given inthis case. As regards the amount of damages, the circumstancesindicate that, properly speaking, the plaintiff was entitled to verymuch more than Rs. 300 which the District Judge gave by way ofdamages. I do not think that we can interfere with his judgmenton any ground. I would dismiss the appeal, with costs.
Gabvin A.J.—I agree.
1 (1922) 24 N. L. R. 97.
KARUNARATNE HAMINE v. FERNANDO et al