PANDITA-GUNAWAIiDENE, J.—Phaha v. Sadeen
Present: Pandita-Gunawardene, J.
M.I. M. THAHA, Appellant, and M. M. SADEEN, RespondentS. G. 40(01—0. P. Colombo, 86538(P. E.
Rent controlled premises—Sub letting—Subsequent sale of the premises by landlord—
Right of purchaser to have the tenant and sub-tenant ejected—Rent Restriction
Act (Cap. 274), ss. 9 (2), 27.
Whore a tenant of rent-controlled promises sub-lots tho premises incontravention of section 9 (2) of tho Rent Restriction Act and the premisesaro subsequently sold by tho landlord to a third party, the purchaser, towhom the tenant has attorned, is entitled to maintain an action for thoejectment of the tenant and tho sub tenant.
Ralnasingham v. Catherasxuamy (5S N. L. R. 476) followed.
Wallace v. Silva (70 N. L. R. 308) not followod.
Appeal from a judgment of the Court of Requests, Colombo.
Ranganalhan, Q.C., with A. Sivagurunathan, for the 2nddefendant-appellant-.
C. Thiagalingam, Q.C., with M. S. A[. Nazeem, for the plaintiff-respondent.
Cur. adv. iyult.
September 2G, 19GS. Pasdita-Gunawardeke, J.—
The plaintiff, who is the respondent to this appeal, became owner ofthe premises in suit by purchase in 1961. The first defendant who wasthe tenant, attorned to the plaintiff and thereby continued in histenancy.
In November, 1963 the plaintiff commenced action against the firstdefendant, stating viler alia (a) that the first defendent—lie was the onlydefendant to the original plaint—was in arrears of rent within themeaningofthe Rent Restriction Act and (6) that he had sub-let thepremises without prior consent. The prayer was for an order of ejectmentagainst the defendant and those holding under him. – Thereafter thealleged sub-tenant, who is the second defendant in this case, was addedas a party. And in December, 1964 amended plaint was filed againstboth defendants, seeking their eviction on the ground of arrears of rentand on the ground of sub-tenancy in favour of the second defendant.The first defendant filed no answer and did not resist theplaintiff’sclaim.The second defendant, who is the appellant in this case, filed answer inwhich he asserted that lie, the second defendant, was in occupation, not
PANTDITA-GUNAWARDENE, J.—Thaha v. Sadeen143
as sub-tenant but that in truth and in fact he was the lawful tenant;that he was the tenant of the plaintiff’s predecessor in title andthereafter by attornment and/or by operation of law, became therightful tenant of the plaintiff as from 19G1.
Apparently in the 3-ear 1959, the first defendant tenant had enteredinto an agreement with the second defendant whereby he let to thesecond defendant the business called “ Old Metal Stores ” carried onin the premises in suit at a monthly rental of Rs. 30. The seconddefendant defaulted in the pa}'ment of the rental and in 1962, the firstdefendant filed action against him for ejectment from the premises. Inhis answer to that plaint, the second defendant admitted that he was asub-tenant of the first defendant (the plaintiff in that case) which positionhe has significantly abandoned in this case : and further went on toaver that as from October, I960 the sub-tenanc}' turned into a tenancy(Vide P 2S). The case did not proceed to trial as the first defendantagreed to his action being dismissed in view of the fact that the businessname had not been property registered.
The learned Commissioner of Requests has considered the documentaryand oral evidence in this case and has in my view, correctly found againstthe second defendant. I see no reason to interfere with his finding.
Mr. Rangauathan for the second defendant however contended thatthe plaintiff cannot maintain this action for ejectment on the ground ofsub-letting as the act. of sub-letting was done when he was not the land-lord. He strongly relied on the judgment in the case of Bertha Wallace v.
V. Hector Silva 1 where Sirimane, J. held “ where a tenant sub-letsrent controlled premises without the permission of his landlord, aperson who subsequently purchases the premises from the landlord isnot entitled to eject the tenant on the ground of sub-letting which hadbeen done when lie was not the landlord ”. I would, with respect,disagree with the view expressed by Sirimane, J. I would prefer tofollow the judgment in the case of Ratnasinghain and another v.Calhereswamy 2 where Basnayake, C.J. (K. D. de Silva, J. agreeing) insimilar circumstances, decided in favour of the plaintiff landlord.
Section 9 (1 and 2) of the Rent Restriction Act, Cap. 274, Volume 10,
E. C., provide : 1
(1) Notwithstanding anything in any other law, but subject to anyprovision to the contrary in any written contract or agreement,the tenant of any premises to which this Act applies shall not,without the prior consent in u-riting of the landlord, sub-letthe premises or an}' party thereof to any other person.
* U968) 70 N. L. R. 308.
* (1956) 58 N. L. B. 476.
PANDIT A-GUNAWARDENE, J.~Thaha v. Sadeen
(2) Where any premises or any part thereof is sub-let in contraven-tion of the provisions of sub-section (1), the landlord shall,notwithstanding the provisions of section 13, be entitled inan action instituted in a court of competent jurisdictionto a decree for the ejectment from the premises of his tenantand of the person or each of the persons to whom the premisesor any part thereof has been so sub-let.
The word ‘.landlord ’ is defined in Section 27 of the Act as meaning theperson who in relation to any premises is, at the time-being, entitled toreceive the rent of such premises.
It would seem to me that it is necessary to consider Section 9 of theAct realistically and not in a technical and narrow sense. It is correct tosay that the act of sub-letting it is that gives rise to the cause of action.But to hold that if a sub-letting is done on a particular day, therefore thecause of action can only arise to the landlord who on that particular daywas the landlord of the premises, is, I think, not in accord with a commonsense approach to the situation. Sub-letting without consent, as canwell be imagined, is unlike Jetting. It is done by the tenant in-stealth,for his profit. The landlord may, in the generality of cases, never knowwhether his premises are sub-let. Proof of sub-letting is in the circum-stances, invariably difficult to obtain, and if in addition, it is requiredthat the landlord should establish the date of sub-letting, it will be castingon the landlord a well nigh impossible burden. My interpretation of thisSection is that at whatever time it is discovered that the premises havebeen sub let, then on that discovery the cause of action arises. Whatthe Section implies is that at the time of commencing action, the sub-letting should subsist; there should be in existence, a sub-tenant in thepremises.
The general purport of the Rent Restriction Act is to afford protectionto the honest tenant. But to construe the Act in a manner that mayassist a dishonest tenant would be to denj' to the landlord the modicumof rights available to him under the Act.
I would affirm the judgment of the ieamed Commissioner of Requestsand dismiss the appeal with costs.
M. I. M. THAHA, Appellant and M. M. SADEEN, Respondent