Wijeratne v. Dschou
Present: Wijesundera, J., and Sharvananda, J.
T.D. WIJERATNE, Appellant, and T. J. DSCHOU, RespondentS. C. 8/70—C. R. Colombo, 96621/RE
Rent Restriction Act (Cap. 274), as amended by Act No. 12 of I960—Sections 2 (4), 9 (2), 12 A (1), 13 (1)—Premises whose standardrent for a month does not exceed one hundred rupees—Non-occupying tenant of such premises—He is not liable to be ejectedon the ground of the non-occupation—Liability if “ wilfuldamage ” has been caused—Proof of wilful damage—Duty of careowed by a tenant in respect of the leased premises—Rent Act of1972, s. 28.
The defendant, who was a tenant of certain rent-controlledpremises whose standard rent for a month did not exceed Rs. 100,was running a restaurant business in the premises from 1942. Thepremises were kept closed from early 1965 till 1969 and were notphysically occupied by the tenant or by anybody for over two yearsprior to the date of the institution of the present action in October1967. The plaintiff (landlord) claimed the ejectment of the defendanton two grounds, viz. (a) that the defendant had not been in physicaloccupation of the premises for over two years ;(b) that the
defendant had caused wilful damage to the premises within themeaning of section 12 A (1) (d) of the Rent Restriction Act bykeeping the premises unoccupied and closed.
Held, (i) that non-occupation of the premises let is not one ofthe grounds for ejectment set out in section 12 A (1) of the RentRestriction Act, as amended by Act No. 12 of 1966. The plaintiff,therefore, was not entitled to rely on that ground, even assumingthat he had obtained the sanction of the Rent Control Board ; inthe case of premises whose standard rent for a month does notexceed Rs. 100, the amending Act No. 12 of 1966 has abrogatedthe provision for getting the sanction of the Rent Control Boardin the cir cumstances mentioned in section 13 (1) of the principal Act.
(ii) that there was sufficient evidence in the present case toestablish that, by keeping the premises unoccupied and closed fora period of over two years, the defendant had caused wilful damageto the premises within the meaning of section 12 A (1) (d) of theRent Restriction Act and was, therefore, liable to be ejected onthat ground. It is only in the perspective of landlord and tenantrelationship that the question whether wilful damage has beencaused should be determined. Under the Roman-Dutch law it isthe duty of the tenant to use the leased premises with the samedegree of diligence that a good and prudent householder would usein the preservation of his own property.
Appeal from a judgment of the Court of Requests, Colombo.
C. Thiagalingam, with A. K. Premadasa and B. B. D. Fernando,for the plaintiff-appellant.
C. Ranganathan, with L. V. Gunaratne and S. Ruthiramoorthy,for the defendant-respondent.
Cur. adv. vult.158
SHAItVANANDA, J.—Wijeratne v. Dschou
February 28, 1974. Sharvananda, J.—
This is an action filed by the plaintiff for the ejectment of histenant, the defendant, from premises bearing assessment No. 81,Bambalapitiya Road, Bambalapitiya. Though the plaintiff claimedin the Lower Court that the premises in suit were “ exceptedpremises ” within the meaning of the provisions of the RentRestriction Act the learned Commissioner quite rightly heldagainst the plaintiff on this issue and in appeal counsel forplaintiff conceded that the Commissioner was quite right in soholding and did not urge any argument to the contrary. In ourview, the provisions of the Rent Restriction Act of 1948 applyto the premises in suit and unless the plaintiff satisfies the Courtof the existence of any of the grounds for ejectment set out inthe Act the defendant is entitled to the protection from ejectmentoffered by that Act. The plaintiff has claimed the ejectment ofthe defendant on two grounds, viz. (a) that “ the defendant hadnot been in physical occupation of the premises for over tw&years and that the premises were kept closed at the time ofinstitution of the action ; (b) that the defendant had causedwilful damage to the premises within the meaning of Section12 (A) (1) (d) of the Rent Restriction Act as amended by ActNo. 12 of 1966, by keeping the premises unoccupied and closed.
From the evidence on record it is clear that the defendant whowas from 1942 running a restaurant business called the “ ShanhaiRestaurant ” in the premises in suit kept the premises closedfrom early 1965 till 1969 and the premises were not physicallyoccupied by the tenant or as a matter of fact, by anybody forover two years prior to the date of the institution of this actionby the plaintiff in October 1967. The record does not disclose anyostensible reason for such non-occupation. The defendant hag-not placed any evidence to justify the closure. Since thedefendant kept the premises closed for over two years for noappreciable reason, we have to presume that he did not requirethe premises for his personal occupation or for the purposes ofhis trade or business. To say the least, the attitude and conductof the defendant is contumacious. Be that as it may, the questionarises—can the plaintiff have such a defendant ejected excepton one of those grounds specifically postulated by the RentRestriction Act for the ejectment of the tenant ? Mr. Thiaga-lingam appearing for the plaintiff argued that as the object ofthe Rent Restriction Act is to protect the tenant in his occupationof the premises and to offer him security of tenure, and as thedefendant was not in occupation at the relevant time he cannotclaim, the protection of the Act. He referred us to what has beensaid to be the object of the English Rent Acts i.e. “ Their realfundamental object is protecting a tenant from being turned
SIIA-RVANANDA, J.—Wijeralne v. Dschou
OUt of his home ”. Carl v. Angelo 1 (1948) 2 A. E. R. 189 at 192.
per Lord Greene M. R. and that “ their clear policyis to
keep a roof over the tenant’s or someone’s head not over anunoccupied shell, and to economise rather than sterilise housingaccommodation Brown v. Brash2 (1948) 1 A. E. R. 922 perAsquith L.J., “ One object of the Acts was to provide as manyhouses as possible at a moderate rate. A man who does not livein a house and never intends to do so is, if I may use theexpression, withdrawing from circulation that house which wasintended for occupation by other people. To treat a man in th&position of the appellant as a person entitled to be protectedis completely to misunderstand and misapply the policy of theActs”. Skinner v. Geary3 (1931) 2 K. B. 546 at 564 per Scrutton
J. Counsel invited us to hold that the above observations applyequally well to our Rent Restriction Act and stated that underour law too, the non-occupying tenant should receive short shrift.He referred us to Sabapathy v. Kularatne * 52 N. L. R. 425, Suriyav. Board of Trustees of Maradana Mosques 55 N. L. R. 309 andAmarasekera v. Gunapala8 73 N. L. R. 469 where the conceptof “ non-occupying tenant ” has received favourable receptionlocally. As against this trend, Mr. Ranganathan referred us tothe case of Mohamed v. Kadhibhoy7 60 N. L. R. 186 where abench of two judges held that the English concept of a “ non-occupying tenant ” is not applicable to our Restriction Act. Withreference to the case relied by Mr. Ranganathan counsel for theplaintiff-appellant commented that it was not a well analysedjudgment and that as counsel for the Respondent did not seekto support the authority of Sabapathy v. Kularatne’ 52 N. L. R.425 there was not much argument on the position ofnon-occupying tenant.
Though we see lot of force in Mr. Thiagalingam’s argumentabout the position of the non-occupying tenant vis-a-vis theRent Restriction Act, we note that there is nothing in the actuallanguage of our Rent Restriction Act to divest by reason ofnon-residence or non-occupation a tenant in legal possession ofpremises of the protection offered by the Rent Restriction Actof 1948. If we are to adopt the principle of the non-occupyingtenant we will be taking upon ourselves the function of thelegislature and not be deciding on the meaning of the RentRestriction Act. Such adoption may be beneficial but notwarranted by the express provisions of the Rent Restriction Act-That one can apparently gather that such an object or intentionas depriving a non-occupying tenant of the benefits of the Rent
1 (1948) 2 A.E.R. 189 at 192.855N.L.R.309.
(1948) 1 A.E.R. 922.873N.L.R.469.
(1931) 2 K.B. 546 at 564.T60NJj.R.186.
62 N.L.R. 425.652N.L.R.425-
SHARVAXAXDA, J.—Wijeratne v. Dschou
Restriction Act was probably there in the mind of the legislatureis not enough to justify us in putting a construction on theprovisions of the Rent Restriction Acts which would necessitatereading into those provisions Words which are not there.
Section 2 (4) of the Rent Restriction Act states that “ so longas this Act is in operation in any area, the provisions of this Actshall apply to all premises in that area not being exceptedpremises ; and the expression * premises to which this Actapplies ’ shall be construed accordingly Thus the Act appliesto all premises whether occupied or unoccupied.
Section 13 (1) of the Act reads as follows : —
Notwithstanding anything in any other law, no action orproceedings for the ejectment of the tenant of any premises towhich this Act applies shall be instituted in or entertainedby any Court, unless the board, on the application of thelandlord has in writing authorised the institution of suchaction or proceedings.
Provided, however, that the authorization of the beardshall not be necessary, and no application for suchauthorization may be entertained by the board in theinstances referred to therein.
Section 9 (2) provides as follows : —
Where any premises or any part thereof is sublet in contra-vention of the provisions of sub-section (1) the landlordshall, notwithstanding the provisions of Section 13, be
entitled in an action instituted to a decree for the
ejectmentof the tenant
Under the original Rent Restriction Act of 1948 the provisionsof Sections 9 and 13 exhaust the instances when a decree ofejectment can be entered against a tenant of premises to whichthe Act applies. A tenant cannot be ejected merely on the groundof his non-occupancy except where the Rent Control Board hasin writing authorized the institution of the action. Any Boardwould reasonably be expected to grant this authorization whenapplication is made to it on the ground that the tenant is notoccupying the premises. Thus the legislature has provided forthe situation of a “non-occupying tenant”. It is to be noted thatsimilar provision is not to be found in the corresponding EnglishActs and that omission might have induced the English Courtsto evolve the rule regarding the non-occupying tenant. Anyway,we have to construe the language of our Act.
The Rent Restriction (Amendment) Act, No. 12 of 1966 hasabrogated the above course of getting the sanction of the
SI IAJRV ANAXDA, J.—Wijeratne v. Dschou
Rent Control Board in the case of premises whose standard rentfor a month does not exceed one hundred rupees. For Section12A (1) provides—
“ Notwithstanding anything in any other law, no actionor proceedings for the ejectment of the tenant of anypremises to which this Act applies and the standard rent ofwhich for a month does not exceed one hundred rupees shallbe instituted or entertained by any court unless where—
the rent of such premises has been in arrear for three
months or more after it has become due, or
such premises have been sub-let without the written
authority of the landlord of such premises, or
such premises have been used by the tenant thereof or
by any person residing or lodging with him or beinghis subtenant for an immoral or illegal purpose, or
wanton destruction or wilful damage to such premises
has been caused by the tenant thereof or any otherperson at his instigation, or any other person residingin such premises. ”
The standard rent of the premises in suit for a month does notexceed one hundred rupees and hence, there is no question ofthe plaintiff in this case validly instituting under the amendmentof 1966 an action for ejectment of his tenant on the mere groundthat he is not in physical occupation of the premises and thatthe premises have been kept closed. The defendant could thushave snapped his fingers at the plaintiff by his unsocial act ofkeeping the premises closed, and sterilising housing accommoda-tion as long as he was not guilty of any of the acts or omissionsset out in Section 12A (1) of the Act. We are glad to note thatthe legislature has now become alive to this casus omissus andhas provided by section 28 of the Rent Act of 1972 for such acontingency.
A defendant who continuously keeps the premises closed forover two years and thus defies the landlord must steer clear ofthe law. The plaintiff complains that by keeping the premisesunoccupied and closed the defendant has caused wilful damageto the premises within the meaning of Section 12 A (1) (d) ofthe Rent Restriction Amendment Act of 1966. The plaintiff had acommission issued by Court to one J. C. Nilgiriya, a charteredarchitect and in pursuance of that commission the architectinspected the premises in suit and submitted his report markedP 1 dated 21st January 1968- He stated that at the time of inspec-tion on 19th January 1968 the premises were not occupied and
SIIAHVANA NDA, J.—Wijeratne v. Dschou
that no business was being carried on in the premises and thatthe defendant had told him that the premises had been closedand unoccupied for a period of over two years. In his report, hehas listed various items of damage to the premises. In his con-sidered view most of the damages had been caused through theneglect of the defendant having not kept the said premises in afit and sound condition but having kept the premises closed andunoccupied for a period of over two years. In his opinion tomake good the items of damage it would cost about Rs. 3,650.Even assuming that the defendant was not responsible for someof the items of damage listed by the architect the defendantcannot disclaim liability for item (4) viz. tiles, approximately,four rows missing at the junction of wall and roof in the rearverandah and item (7) several large damp patches on the wallsof the building—
sitting room front wall corner
dining room rear wall corner
the entire length of the northern wall of the building
corner of the office room
wall between bed room and sitting-dining room.
.According to the report of the architect “ the damp patches havebeen due to leaks which had appeared in the roof within theperiod the premises were not occupied, and prompt attentionhad not been given and that the leaks had further developed andcaused dampness to penetrate into the brickwork and plastersurface ”. The architect was of the view that if the defendanthad occupied the premises, he would have seen to it that themissing tiles were replaced either by him or by the landlord andthat the damp patches referred to in his report could have beenavoided. Though on an analysis some of the items of damagemay appear to be insignificant and would have, in any eventoccurred through ordinary wear and tear, yet when taking atotal picture of the whole one cannot avoid the conclusion that,substantial damage had been caused to the premises as a resultof the neglect resulting from the premises being kept closed forover two years. Had the defendant kept the premises open andoccupied he would have definitely noticed the displaced tiles andthe rain seeping through the leaks and dampening the walls anddamaging the building, and would have brought the matter to thenotice of the plaintiff. During the entire two year period andmore the defendant does not appear to have peeped into thebuilding even once to see in what state the inside of the buildingwas. He appears to have engaged a watcher and some beggars tosleep in the outer verandah, but had not done anything more.
SHARVANANIiA, J.-—Wijeratne v. Dschou
The defendant had deliberately and recklessly chosen to keephis eyes closed to the ravages caused to the building by theelements. The plaintiff was never made aware of the impendingdamage nor was ever given an opportunity of taking stepsagainst occurrence of the damage. On this view of the matterthe question arises, was the damage wilfully caused by thedefendant by his non-action. Counsel for the defendant arguedthat the defendant loses the protection of the Rent RestrictionAct only for wilful damage caused by him and not for construc-tive damage and injury that may be attributable to hisnegligence.
To answer the above question, we have to find out what isthe duty of care owed by a tenant in respect of the leasedpremises. It is only in the perspective of landlord and tenantrelationship that we should judge the conduct of this defendantto determine whether he had wilfully caused the damagereferred to in the architect’s report.
Under the Roman Dutch Law it is the duty of a tenant to usethe leased premises with the same degree of diligence that agood and prudent householder or paterfamilias or farmer woulduse for his own property and to take an equal amount of carein the preservation of the property. A tenant is accordinglyliable to the landlord for ordinary gross negligence as well asfor fraud—Voet 19.2.29. Voet states that the lessee will be fastbound to the lessor if he has neglected the care of homesteads,barns and water leadings and thus has allowed these thingsand others like them to be spoilt. As the “ hirer ” is responsiblefor that degree of diligence which all prudent men, that iswhich the generality of mankind, use in keeping their own goodsof the same kind he is liable for such injuries as are caused byan omission of that diligence. Wille—Landlord and Tenant 1910ed., page 423. The conduct of the defendant in this case doesnot measure upto the standard of a prudent householder in thecare and use of his property. He has clearly neglected the careof the leased premises and has allowed the premises to bespoilt. It should be noted further that the defendant by hisagreement of tenancy undertook to keep the premises in goodand clean condition.
The defendant kept the leased premises locked deliberatelyand intentionally. Since this restaurant business was conductedin the premises until the premises were closed by the defendantin 1965 and since there is no evidence that at that time thepremises were in need of repairs or that the plaintiff had failedand neglected to attend to any repairs, we have to conclude thatthe premises were in good repair at the time the defendant, for
SHARVANANDA, J.—Wijeratne v. Dschou
some reason of his own, chose to keep it closed. By keeping thepremises closed for a long time the defendant knew or musthave appreciated that damage of the kind referred to byMr. Nilagiriya would ordinarily result to the premises and yetintentionally and without any lawful excuse kept the premiseslocked up for an unreasonably long time and persisted in keepingthe premises closed regardless of consequences. The defendantmust be presumed to have intended the natural and probableconsequences of his action in keeping the premises unoccupiedand closed for over two years. In the circumstances, the defen-dant, in any event acted with reckless carelessness or culpa lataand thus in our view rendered himself guilty of causing wilfuldamage to the leased premises. “ Wilful is not a term of art andis often used as meaning no more than a high degree ofcarelessness and recklessness. It is not necessarily limited in itsuse to intentional or deliberate wrong doing ”—per Lord Wrightin Casswell v. Powell Distillery Association Collieries1 (1939) 3A.E.R. 722 at 739. The plaintiff has thus made out a case againstthe defendant for ejectment on the ground of causing wilfuldamage within the meaning of Section 12 (A) (d).
The learned Commissioner has erred in rejecting the reportof the architect on the ground that he had not seen the stateof the premises prior to the time that the defendant kept itclosed and that therefore his conclusion that the damage wasdue to the premises being kept closed could not be accepted.The learned Commissioner has failed to appreciate the fact thatafter 1955 the defendant had never complained of the state ofthe premises and that the restaurant was run in the premisesuntil the day the premises were closed in 1965. The defendanthad exclusive possession or control of the leased building andwas the best person to speak to the state of the premises in 1965prior to the closure. The defendant did not give any evidencethat the premises were in a neglected condition in 1965 or hascontradicted the report of the architect.
We allow the appeal and set aside the judgment of the lowerCourt and enter judgment for the plaintiff as prayed for withcosts in both Courts. The defendant will be entitled to creditfor all sums of money that he has paid the plaintiff to date byway of monthly rent or damage.
Wijestjndera, J.—I agree.
1 (1939) 3 A.E.R. 722 at 739.
T. D. WIJERATNE, Appellant, and T. J. DSCHOU, Respondent