NAGAXilNGAM S.P.J.—MoUikapilloi ®. Ahamadu Mdrikar
Present : Nagalingam S.P.J.
MAT..LIKAPILLAI, Appellant, and AHAMAJDU MARIKAR, RespondentS. C. 138—G. B. Colombo, 30,381Rent Restriction Act, No. 29 of 1948—Section 13 (I) (cf)—'“ Nuisance
Plaintiff let the front portion of certain premises to the defendant as a monthlytenant and occupied the rear portion himself. Although the entire premiseswere served by only one bath and lavatory, the defendant permitted a largenumber of persons who were not members of his household to make use of thebath and lavatory and thuB greatly inconvenienced the members of theplaintiff’s household.
Held, that the defendant, by his conduct, committed a nuisance within themeaning of section 13 (1) (d) of the Bent Bestriction Act and was, therefore,liable to be ejected.
A PPEAL from a judgment of the Court of Requests, Colombo.
H. V. Perera, K.G., with E. B. S. B. Goomaraswamy, for the defendantappellant.
C. Thiagalingam, K.G., with H. W. Tambiah, for the plaintiff respondent.
Cur. adv. vult.
November 6, 1951. Nagalingam S.P.J.—
This is an appeal from an order of the learned Commissionerof Requests of Colombo entering judgment against the defendant direct-ing his ejectment from premises occupied by him as a monthly tenantof the plaintiff.
The ground upon which the learned Commissioner has made his orderis that the defendant is guilty of conduct which constitutes a nuisanceto the plaintiff who occupies a part of the same premises within the mean-ing of section 13 (1) (d) of the Rent Restriction Act. The . nuisance
3. N. B. 69132 UO/67)
NAGALINGAM S.P.J.—Mallikapillai v. Ahamadu Marikar
Complained of is said to have been brought about by the defendantpermitting or inviting or letting a number of people—no less than, onthe defendant’s own showing, about twenty-nine—to make use of the oneand only bath and lavatory that is in the premises. These twenty-nine persons are stated by the defendant himself to be not members ofhis household but either his countrymen, meaning thereby people fromIndia, or people without any permanent abode and. that they too usehis portion of the premises to sleep in at night. The defendant alsoadmits, to use his own expression, that “ as a result of these people joiningin using the bare conveniences provided in his house, the plaintiff’speople are put to some discomfort and there is congestion in thepremises.”
The plaintiff, occupies the rear portion of the premises while the portionrented by him to the defendant constitutes the front portion and abutsOld Moor Street. The entire premises is served by only one bath andlavatory. According to the plaintiff, it was in 1950 that this influxof persons commenced and since then the members of the plaintiff’shousehold are greatly inconvenienced and incommoded, so much so,that according to the plaintiff it is difficult for them to take even one batha week.
It has been urged that the user by a person of a bathroom or lavatorycannot amount to a nuisance. In fact it is only the misuse of a bath-room or lavatory that can amount to a nuisance. I do not think thelearned Commissioner himself has held that the user of a bathroomor lavatory per se composes the nuisance. The point made by theCommissioner and which has to be met by the defendant if he is tosucceed in establishing that the judgment of the lower Court is wrongis whether the admittance by the defendant of such a large number ofpersons into his premises so as to impede and interfere with the commo-dious use of the bathroom and lavatory by the plaintiff and the membersof his household amounts to a nuisance. It is easy to see that wherea single bathroom and lavatory has to be used by about fifty persons agreat deal of inconvenience and discomfort, if not agony, must be causedto everyone of those persons, not by the bare use of the bath and lavatorybut by the non-availability of the conveniences at the times and occasionswhen their use is desired. If a bath and lavatory cannot be made useof when needed the resulting situation cannot but be regarded as aforcible deprivation of the amenities, so far as the occupants' who arelegitimately entitled to use them are concerned. If the question isapproached from this standpoint I do not think it is possible to take anyother view of the dispute between the parties than that the defendantdefinitely has brought into existence a state of affairs which cannotbut be regarded as amounting to a nuisance to the plaintiff and the mem-bers of his household. I am therefore of opinion that the learned Com-missioner’s view ip right and that his judgment should be affirmed.
Mr. Perera, however, made a further submission that as the defendantis engaged in the manufacture of calendars and that as this is the seasonof the year when his business activities are at their peak it would causegreat loss and damage to the defendant if he were ejected immediately.
GRATIAEN J.—Ranaainghe v. Fernando '
There are conflicting decisions of this Court on tire question whether the'Court has power to delay execution of an order of ejectment which the-Court ha% decreed in favour of the landlord—see Yoosoof v. Simian's 1 and'.Weerasinghe v. Candappa3. I have not heard full argument on this;question and I -do not therefore propose to express any view on it, butI am satisfied that in this case no sufficient grounds exist for time being'allowed to the defendant to vacate the premises. This is not a caseof premises used as a dwelling house by a man and family consistingof wife and children who, unless they found some suitable accommo-dation, would find themselves out in the streets. ~ But this is a caseof a defendant who has other premises which could, it may be with some.inconvenience, be used by him and those who could properly be regardedas members of his household. The night lodgers of the defendant arenot entitled to any special consideration. In these circumstancesI do not think that there should be a stay of the writ of ejectment.
I therefore affirm the judgment of the learned Commissioner and dis-miss the appeal with costs.
MALLIKAPILLAI, Appellant, and AHAMADU MARIKAR, Respondent