Sivaguru v. Janaki
1953Present: Rose C.J.
N. SIVAGURU, Appellant, and MRS. C. JANAKI,Respondent
S. C. 103—C. JR. Colombo, 40,937
Rent Restriction Act—Action for ejectment—Tenant's divestment, pending action,of alternative accommodation—Factor for consideration. .
In determining the question of the relative hardships which would be incurredby the landlord and the tenant by the granting or withholding of an order forpossession in an action for ejectment under the Rent Restriction Act, it wouldbe proper for the court to take into consideration that the tenant had, in theinterval between the service of the notice to quit and the hearing of the action,deliberately divested himself of property which was under his hand in orderto defeat the landlord’s claim for possession of the leased premises.
ROSE C.J.—Sivagu.ru v. Janaki
./^LpPEAL from a judgment of the Court of Requests, Colombo.H. W. Tambiah, with S. Sharvananda, for the plaintiff appellant.Vernon Wijetunge, for the defendant respondent.
.Cur. adv. vidt.
November 12, 1953. Rose C.J.—
In this matter the plaintiff-appellant suggests that the case should beremitted to the learned Commissioner of Requests to enable him to re-consider the question as to whether the defendant-respondent by herown act divested herself of suitable alternative accommodation afterservice of the notice to quit and, if so, whether his opinion of the relative-hardship which would be incurred by the parties would be modified.
The plaintiff-appellant, who is a man of some means, bought theproperty in question in December, 1951, the respondent already being inoccupation as a tenant of the previous owner. A final notice to quit wasgiven in June, 1952, the plaintiff-appellant contending that the premiseswere reasonably required by him for the residence of himself and hisfamily.
It appears that the defendant respondent occupied the premises insuit which bore the number 79 of the Street in question. She carriedon a firewood business in premises No. 77, which was next door topremises No. 79, and which consisted of a shed which she used as herfirewood depot, a lavatory and a bathroom and another small shed intowhich she had permitted a Tamil family consisting of a man and wifeand four or five children to occupy.
Although the date of the granting of this permission is not quite clearfrom the evidence, it is suggested by learned counsel for the appellant—-and it may be so—that this permission was given after the service of thenotice to quit.
As Mr. Megarry points out in his book on the Rent Acts (7th edition)at page 270, it will usually be irrelevant in considering a landlord’scircumstances to consider past events, such as the sale by the landlordof another house which would have provided an alternative home forhim, the principle, of course, being that a landlord is entitled if he wishesto select from the properties at his disposal which one he desires to occupyfor himself. Mr. Megarry points out, however, that this principle“ applies with diminished force if at all ” to the tenant’s circumstances,as for instance where he has failed to accept other accommodation in thepast. A fortiori the principle would not seem to be applicable to a tenantwho in the interval between the service of the notice to quit and thehearing of the action has deliberately divested herself of property whichwas under her hand in order to defeat the plaintiff’s claim for possession.
It seems that in such a case it would be proper for a court to take thisfactor into consideration in determining the question of the relativehardships which would be incurred by the parties by the granting orwithholding of an order of possession.
Peter Singho v. Werapiliya
After careful consideration, of the facts of the present case, however,I consider that it is undesirable and indeed would put the parties to un-necessary expense to remit the matter for further consideration of thisissue. It appears from the evidence of the respondent that the shedinto which she allowed the Tamil family to lodge is small and in the mainunsuitable for human occupation. She states—and her statement wasnot challenged in cross-examination—that the premises were so crampedthat the children were allowed to sleep in her own premises at No. 79.The respondent’s position is that her sole means of support is this smallfirewood business, which necessitates her living at or near her firewooddepot. She has living with her her mother and her, niece who have nomeans of livelihood and who have been dependent upon her for the lasteight years.
As against this the plaintiff was found by the learned Commissionernot to have established a case of equal need. I agree with the learnedCommissioner’s assessment of the respective hardships of the partiesand in the circumstances see no reason to dissent from his conclusions.
The appeal is therefore dismissed with costs.
N. SIVAGURU, Appellant, and MRS. C. JANAKI, Respondent
Sivaguru v. Janaki