FERNANDO A.J.—Premaratne v. Oliver de Silva
1954<Present: Fernando A.J.AIRS. C. PREMARATNE, Appellant, and M. K. OLIVER DE SILVA,
S. O. 204—C. R. Galle, 29,123
JRent Restriction Act—Authorised rent—Mode of proof.
Defendant, who was sued for ejectment under the Refutr Restriction Act onthe ground that rent was in arrear, pleaded that rent was not in arrear consi-dering the fact that he had been paying rent at a higher rate than the authorisedrent. He stated that he had paid rent at the rate of Rs. 18 and even Rs. 20 permonth when, in fact, the authorised rent of the premises (which were situatedwithin the Municipality of G-alle) was only Rs. 12.50. The plaintiff statedthat the agreed rent was Rs. 20.
Held, that the burden was on the defendant to prove the amount of theauthorised rent by the production of the Municipal assessment register, andsecondary evidence could only have been admitted if the best evidence wasfor some reason not available.
j^LPPEAL from a judgment of the Court of Requests, Galle.
H. W. Jayewardene, with D. R. P. Goonetilleke, ° for the plaintiff.appellant.
M. C. Abeywardene, for the defendant respondent.
Cur. adv. vult.
-June 1, 1954. Fernando A.J.—
Tn this case the landlord of certain premises gave notice to his tenant©n 23rd November, 1951, terminating the tenancy of the premises onthe ground that rent was in arrear from August, 1951. There wasevidence that the defendant had in January, 1952, paid the arrears ofTent, and on the question whether the acceptance of this payment pre-cluded the landlord from subsequently instituting an action for ejectment
FEESAXDO A.J.—Premaratne v. Oliver de Silva
the learned Commissioner held with the plaintiff. The recent decisionof three judj^s of this Court in Dias v. Vincent Gomes 1 makes it clearthat the learned Commissioner decided that question correctly.
At the trial the defendant also took up the position that in fact the renthad not been in arrear as alleged by the landlord. The defendant’sposition was that, although he had paid rent from 1947 onwards at therate of Rs. 18 and even Rs. 20 per month, in fact the authorised rent ofthe premises was only Rs. 12-50 per month. The plaintiff stated inevidence that the agreed rent was Rs. 20 per month, but made no attemptto prove the actual authorised rent, and in fact neither the plaintiff norher son who was apparently in charge of the rent collections from hismother’s tenants could make any definite statement as to the amountof the authorised rent of the premises in question. Although the plaintiffhad issued summons on the Municipality to produce the assessmentregister, the plaintiff’s ease was closed without a Municipal Officer beingcalled at all.
The defendant also made no attempt to prove the authorised rent.His evidence was that the authorised rent in 1946 was Rs. 12-50 permonth, but that he did not know the current authorised rent. Thelearned Commishctaer held that on that evidence the authorised rentshould be presumed to be Rs. 12-50 per month. He relied on the caseof Perera v. Per era 2. That case was one where the plaintiff had filedhis action on the basis that the rent was Rs. 12 -50 per month, whereasthe defendant alleged that he had been asked to pay an excessive rentnamely Rs. 22-50 per month. In effect this Court there decided that,in the absence of specific evidence as to what was the authorised rent,the Court would presume that the amount averred by the plaintiffhimself to be the rent, i.e., Rs. 12-50, was in fact the authorised rent.
In that case as well as in the judgment of the learned Commissionerin the present case, reference was made to the case of Keane v. Clark 3,as a justification for thus acting upon the statement of the plaintiffhimself. In fact however the decision in Keane v. Clark does not appearto be strictly applicable because of an important difference between therelevant provisions of the English law and of the Ceylon law respectively.Under the English law the “ standard rent ” as it is there describeddoes not mean an amount calculated by reference to a rating assessment;the standard rent is either—
the rent actually paid at the time of the coming into operation of
the relevant rent statute, if the premises were let at that time,or
if the premises were not let at the time aforesaid then the rent at
which they were most recently let prior to that time, or
if they were not shown to be let at or prior to the time of the coming
into operation of the statute, then the rent at which they werefirst let after the coming into operation. •
• (1954) 55 N. L. R. 337.2 (1951) 53 N. L. R. 359.
3 (1951) 2 A. E. R. 187.
FERNANDO A.J.—JPremaratne v. Oliver de Silva
In Keane v. Glarh the premises were not shown to have been let at orbefore the time when the relevant statute came into ojL ^ration ; andupon a statement of the plaintiff himself that when he bought the premisesthe rent was 22a. 6d. the Court accepted the position that the letting ofwhich the plaintiff spoke was the proper letting by reference to whichthe standard rent had to be determined. Since under the English lawthe rating assessment is not the determining factor for calculation of thestandard rent, no question arose in the English case as to the need forproducing the assessment register as 'the best evidence of the mattersrequired to be proved, but in view of the definition of “ standard rent ”in the Ceylon Act, the assessment register would in the case of premisessituated in a Municipality or Urban area be the best evidence.
In the present case therefore the amount of the authorised rent of thepremises which are situated within the Municipality of Galle should havebeen proved by production of the Municipal assessment register, andsecondary evidence could only have been admitted if the best evidencewas for some reason not available ; but no such reason has been putforward.
In any event the present case is distinguishable from the case of Perera■v. Perera (supra) because there the Court construed the plaintiff’s avermentas to the amount of the rent to be an admission that that amount wasthe authorised rent. In the present case the plaintiff never averred noradmitted the rent to be Rs. 12'50, and on the contrary his positionboth in the plaint and in his evidence is that the rent was Rs. 20.
In my opinion therefore the learned Commissioner was mistaken inthinking that on a bare assertion by the defendant that the authorisedrent in 1946 was Rs. 12 50 per month, it could be presumed that theauthorised rent at the end of 1951 was still Rs. 12'50 per month.
One of the issues framed at the trial in this case was as follows :—
“ Is the defendant in arrears of rent within the meaning of the Rent
Restriction Act ? ”
Counsel for the respondent in appeal attempted to argue*that the plaintiffby raising this issue took upon himself the burden not only of provingthat rent had not been paid but also of proving that the rent which hedemanded was the proper authorised rent. I regret that I see no subs-tance in this argument; it is obvious that the object of framing thatissue was to raise the question whether the defendant was in arreardespite his subsequent payment.
Eor these reasons I would allow the appeal and remit the case to thelearned Commissioner for decree to be entered against the defendantfor ejectment and for payment by him to the plaintiff of the amount ofthe rent now in arrear. Eor the purpose of determining this amount theTent per month must be taken to be Rs. 20. The plaintiff is entitled tothe costs of this appeal as well as of the proceedings before the• Commissioner.
MRS. C. PREMARATNE, Appellant, and M. K. OLIVER DE SILVA, Respondent