Peiria v. Peiria
1977 Present: Samarakoon, C.J., Samerawickrame, J. and
T.W. A. PEIRIS, Appellantand
T. S. PEIRIS, RespondentS.C. 67/71 (F)—D.C. Panadura, 11809
Lease—Action for cancellation on the ground of abuse of property—
Proof of grave damage necessary.
Plaintiff sued the defendant for the cancellation of a lease of a* tiled house and garden ’
There was evidence that the defendant had caused damage totwo trees, but there was no evidence or finding as to the value ofsuch damage. There was also evidence that the kitchen of thehouse had been damaged by falling coconuts and branches.
SAJLARAKOON, C. J.—Peiris v. Peiris
It is a question to be left to the discretion of a prudent andcautious Judge whether the abuse of the leased property ought tobe punished by ejectment or by an adverse judgement ior damagesonly, or should even be overlooked and allowed to pass on account,of its triviality.
Held : That the damage here was not of the grave kind thatwould justify the cancellation of the lease.
Cases referred to :
Perera o. Peiris, 15 N.L.R. 313Silva v. Obeysekera, 24 N.L.R. 118Perera v. Thaliff, 8 N.L.R. 118
Appeal from a Judgment of the District Court of Panadura.
C. Ranganathan, Q.C., with C. R. D. Fernando and L. Hassimfor the defendant-appellant.
A. C. Goonaratne, Q C., with R. C. Goonaratne for the plaintiff-respondent.
October 21, 1977. Samarakoon, C.J.
This is an appeal against the judgement of the District Courtof Panadura ordering the cancellation of the lease effected byBond No. 5941 dated the 6th of July, 1965, attested by C. C.Stembo, Notary Public. This Bond deals with two allotments ofland. Subsequently it was rectified by Bond No. 6632 on 6thDecember, 1966, which is produced marked P2. The lease appliesto a land which is described in D3 as a “ tiled house and gardenThe lease was for a period of 5 years commencing 6th July, 1965-Clause 8 of the lease stated that : “ At the termination of thislease, the lessor will execute another lease for a further periodof 5 years ”. The lease was primarily for the purpose of enablingthe defendant-appellant to construct a building at his ownexpense in the land to install machinery for the purpose of manu-facturing tea chests. The appellant further undertook inter aliato protect the trees and plantations from thieves. Prior to theexecution of this lease the appellant paid the plaintiff-respondenta sum of Rs. 65 being the value of 5 coconut trees standing on theland which had to be cut down and removed to enable the appell-ant to construct the stores. The document D2 shows, that on the6th of December, 1966, the appellant was entrusted with 2 mangotrees standing on the said land. The plaintiff-respondent insti-tuted this action on the 13th of November, 1969, claiming thecancellation of the deed of lease alleging various acts of commi-ssion and omission on the part of the defendant-appellant. Aftertrial the learned trial Judge found as a fact that the defendanthas caused damage to a mango tree and a coconut tree on theland, that the kitchen of the house had been damaged, and that
SAMAKAKOON, 0. J.—Peiria v. Peiris
the appellant had built 3 sheds on the land when the lease per-mitted him to build only one. For these reasons the learned Judgeordered a cancellation of the lease. The question rfow arises whe-ther the damage found by the Judge was of such kind as tojustify the cancellation of the lease. Our law recognises such aright of cancellation of leases whether they be rural or urbantenaments. Vide the cases of Per era vs. Peiris, 15 N.L.R. 313 andSilva vs. Obeysekera, 24 N.L.R. 97. There must however be proofthat the damage complained of is of a grave kind. Voet, BookXIX, Title 2, Section 18 states : ‘ that it must be only of a misusethat is markedly serious and ruinous ’. Middleton, J. in the caseof Perera vs. Thaliff, 8 N.L.R. 118 stated : ‘ that the abuse mustbe of notably grave and damnifying misuse’. The ways ofmisuse are many and as Voet himself points out, the wholematter ought to be left to the discretion of a prudent and cau-tious Judge ; for him to say whether the misuse ought to bepunished by ejectment or by an adverse judgment for damagesonly, or should even be overlooked and allowed to pass on acc-ount of its triviality. See also the case of Perera vs. Thaliffsupra). Does then the damage found by the Judge in his orderjustify an order of cancellation ? The respondent himself statedthat there were 70 coconut trees, 2 mango trees and one jaktree on this land. The evidence shows that damage to the kitc-hen was caused by falling coconuts and coconut branches. Therespondent valued the damage at Rs. 2,000 but the Judge wasnot prepared to accept that assessment from the respondent.In the result there is no finding of the value of the damage. Thereis no-evidence as to the value of the damage to the 2 trees. How-ever, judging from the evidence in the case, the damage referredto by the Judge in his order is not of a grave kind that wouldjustify the cancellation of the lease. It is a significant fact thatthis action was instituted six months prior to the effluxion ofthe 1st period of five years.
I am, therefore, of opinion that the order of cancellation ofthe lease PI was wrong, and issue 2 should have been answeredin the negative.
In view of this finding it is not necessary to consider issues3 to 7 raised at the trial, and those are therefore left open, shouldthe parties desire to agitate them in some other proceedings.
I, therefore, allow the appeal and I direct order be entereddismissing the plaintiff’s action with costs.
The defendant-appellant will also be entitled to costs of appeal.
Samerawickrame, J-—I agree.
Vythiaungajvt, J.—I agree.
A 89548 (79/02)
T. W. A. PEIRIS, Appellant and T. S. PEIRIS, Respondent