Present : Gratiaen J.19S0
W EERASINGHE, Appellant, and CANDAPPA, Respondent
S. C. 50—B. Colombo, 23,176
Rent Restriction Ordinance, No. GO of 1942—Action for ejectment—Circumstanceswhen landlord’s claim must prevail—Right of purchaser from landlord to ejecttenant—Order for ejectment—Legality of suspending it for a short time.
In an action for ejectment brought Tinder the Kent Restriction Ordinancethe landlord’s claim must prevail when, in the Court’s opinion, the hardshipto the landlord either outweighs or is evenly balanced with that of the tenant.
A person who becomes a landlord by purchasing a dwelling-house is notdisqualified, in Ceylon, from claiming under the Rent Restriction Ordinancean order for ejectment of the tenant on the ground that the premises arereasonably required for his occupation.
In rent restriction cases an order for ejectment may be suspended for a shorttime so as to mitigate the hardship caused to the tenant.
^PPEAR from a judgment of the Court of Requests, Colombo.
if. V. Perera, K.C., with M. Ramalingam, for plaintiff appellant.
if. W. Jayewarde-ne, for defendant respondent.
Cut. adv. vult.
November 21, 1950. Gratiajsn J.—
The defendant was the tenant of *a bungalow in Colpetty under-M. S. Raju who, at a later date, sold the premises to the plaintiff. The plain-tiff and her family had earlier lived in her own house in Nugegoda, butthis property was compulsorily acquired by the Crown in April, 1949,and a few months later she was obliged to vacate it on an order of Court.She accordingly negotiated with Raju for the purchase of the premises,occupied by the defendant, and it was made clear to Raju and to the 'defendant that, in the circumstances in which she and her family were-placed, vacant possession would be a condition of the purchase. The-defendant gave an undertaking to vacate the house on the completionof the transaction, and there is no question that it was on the faith of this-promise that the plaintiff purchased the property in August, 1949.Thereafter, for reasons which, owing to the acute housing shortage inColombo, are understandable though not commendable, he refused tohonour his undertaking. The plaintiff, her husband and three youngchildren were accordingly placed in a most embarrassing position, and.they were compelled to make certain makeshift arrangements for their-shelter. They were given temporary accommodation in a small room inthe house occupied by the plaintiff’s father who was himself under noticeto quit. The situation was further complicated by the circumstancethat the birth of yet another member of the family was anticipated inMay, 1950. The defendant nevertheless pointed to his own difficulty infinding suitable accommodation for himself and his family, and headamantly refused to quit the premises.
The plaintiff sued the defendant in the Court of Requests of Colombo'on 6th October, 1949, to have him ejected. The defence was that the-premises were “ not reasonably required for occupation as a residence ”fo<r the plaintiff and her family within the meaning of the Rent Restric-tion Ordinance. This contention prevailed in the lower Court, andthe pi-esent appeal is from the judgment of the learned Commissionerdismissing the plaintiff’s action..
It is now settled law- that in considering whether premises are reasonablyrequired for the occupation of a landlord, a Court must take into account,inter alia, the degree of hardship which an order for eviction would cause-to the tenant (Gimasana■ v. SangaTalingam Pillai'). As Windham J.points out, the lack of alternative accommodation for the tenant soughtto be evicted is a relevant and indeed a very important factor for consi-deration, but “ a case might well occur where, after duly eonsidering-the fact that there was* no alternative accommodation, the court.
1 (1948) 49 AT. L. It. 473.
might still consider that the landlord’s requirement was reasonableMr. Jayawardene reminds me that in Koch v. Abeyasekera, I had ex-pressed the view that ' ‘ the claims of a tenant who, in spite of diligentsearch, has failed to find alternative accommodation should be preferredto those of a landlord whose family does at least possess a home in whichthey can continue to live ”. This is still my view, but the principle cannotapply where, as in the present case, the landlord who claims to be restoredto occupation of his own house is, at the relevant date, living precariouslyand in great discomfort in cirqjumstances which make continuity oftenure in the other premises uncertain.
In Menclis v. Ferdinands by brother Dias, if I may say so with respect,,had exhaustively analysed the effect of the earlier decisions as to therules which should guide a court in deciding between competing claimsfor premises to which the Rent Restriction Ordinance applies. Hepointed that the landlord’s claim must prevail when, in the Court’s,opinion, the hardship to the landlord either outweighs or is evenlybalanced (as far as such matters can be assessed) with that of the tenant-
If the present case be considered on this basis in the light of the factswhich have been accepted by the learned Commissioner, I think that thehardship to the plaintiff if eviction be refused would certainly not beLess than the hardship which would be caused to the defendant if evictionwere ordered. Indeed, tlie impression I have formed is that the learned’Commissioner would himself have taken the same view in determiningthe balance of hardship if the plaintiff had been the landlord from, the com-mencement of the defendant’s tenancy. The learned Commissioner seems-to have thought, however, that the circumstance that the plaintiff hadonly become a landlord by purchase and subsequent attornment was adisqualifying factor in her case. “ A person who becomes a landlord insuch fortuitous circumstances as have been established in this case ”,he said, " cannot be said to require the premises reasonably within themeaning of the Ordinance. The mere purchase of premises would not.create in the purchaser a reasonableness which the law would recognize
so as to entitle that person to eject the occupier. I therefore
dismiss this action with costs ”.
In my opinion the learned Commissioner has gravely misdirectedhimself in permitting this factor to influence his judgment. It is nodoubt true that in England a person who becomes a landlord by purchasinga dwelling house after a prescribed date is disqualified by statute fromclaiming an order for ejectment on the sole ground that the premises arereasonably required for his occupation (23 and 24 Geo. V, Cap. 32, Schedule1, para (Ji) )- The intention of Parliament in introducing this enactmentwas to protect a tenant from having the house in which he lives boughtover his head (Epps v. Rothnie 3). The Ceylon Legislature, however,for reasons which it is not the function of this Court either to questionor to praise, has advisedly chosen not to disqualify persons who becomelandlords by purchase from claiming possession under the Rent Restriction!Ordinance. The claim of such a person to eject his tenant must, as in the*
case of any other landlord, be determined solely by reference to thereasonableness of his requirement for occupation of the premises at therelevant date. In my opinion the circumstances in which the plaintiffeame to enjoy the status of a landlord cannot affect the issue one way•or the other. It is the reasonableness of his present requirement for thepremises which the Court must adjudicate upon.
Mr. Jayawardene argued that the words “ in the opinion of the Court ”.appearing in section 8 (c) of the Bent Bestriction Ordinance make the trialJudge the final arbiter in determining the difficult questions arising fromthe competing claims of landlord and tenant. This is certainly the viewtaken by the Court of Appeal in regard to analogous proceedings inEngland, subject, of course, to the right of the appellate Court tointerfere where the trial Judge has misdirected himself. (Vide Coplans v.King 1). As I have not had the advantage of a full argument on thispoint, I am content to assume for the purposes of this appeal—althoughI do not hold—that this principle should be adopted in Ceylon. In myopinion, for the reasons which I have already given, the learned Com-missioner’s judgment in the present ease is vitiated by a clear misdirectionin law, and I am satisfied that but for that misdirection he would himselfhave entered judgment in favour of the plaintiff. I accordingly allow theappeal and enter judgment in favour of the plaintiff as prayed for with■costs here and in the Court below. Justice demands, however, that in■order to mitigate the hardship which the order for ejectment willundoubtedly cause to the defendant, he should be given reasonable timewithin which to make other arrangements for the accommodation ofhimself and his family. I accordingly order that the writ of ejectmentshould not issue until January 1, 1951.
In making this order, I am aware that in Yoosuf v. Suwaris 2, mybrother Basnayake questioned the legality of an order suspending theoperation of a decree for ejectment in rent restriction cases except byconsent of parties. I respectfully agree that where a Court has decidedthat the present requirement of a landlord for his premises is reasonableit is quite fantastic to make an order that he should nevertheless bedeprived of possession for a very long period. On the other hand, thereis precedent in England for suspending an order for ejectment for a short-time so as to mitigate the hardship caused to the tenant, and it does notseem to me that these precedents can be traced to the differences inlanguage which undoubtedly exist between the English Act and the localOrdinance. In both countries the question of reasonableness must bedetermined by reference to existing conditions, but, as Scott L.J. pointsout in Wheeler v. Evaips 3, “it is obvious that consideration of the questionof hardship must, to some extent, include the future as well as the presentIn the same ease, Asquith L.J. said, “ An order for immediate possessionmay cause greater hardship to the tenant than its refusal would to thelandlord, yet it may be that if the order were suspended for (a shorttime) it would cause less hardship to the tenant than its refusal would tothe landlord ”. The Court of Appeal accordingly upheld an order infavour of the landlord upon the condition that the order should be
1 (1947) 2 A. ID. R. 393.s (1950) 51 V. L. R. 3S1.
3 (1949) L. -J. R. 1022.
suspended for a period of four months. I see no compelling reasonwhy the Courts in this country should be precluded from making similarorders when justice requires that they should be made.
WEERASINGHE, Appellant, and CANDAPPA, Respondent
Present : Gratiaen J.19S0