Jinadasa v. Pieris (Rodrigo. J.)
:OURT OF APPEALRANASINGHC. J AND RODRIGO. J.
C A 62 78 ff.V L CIV'L.
C. M C COLOMBO 1627 RFNOVEMBER 4 ANO 6,1981.
Rent and e/ectment ■ nun occupying tenant ■ s.2811! of the Rent Act ot 1572
Under s.2811) of the Rent Act a tenant can be abser: from 'he prpirises rc i n forsix months with o' without cause but if he t» away for a longer per.od he <■- ■<•• an
explanation which wul amount to reasonable cause
Where without the landlord’s consent a tenant keeps his dep<:ndep*s m the pren.sesfor longer than six months without an, intention to occupy them himself ne is liableto be treated as a non-occupying tenant and evicted.
Cases referred to:
If) Fonseka v. Gulamhussein (19811 111 Sri LR 77.
(2) Brown v. Brash ! 19481 1 All ER 922.
13) Sabapathy v. Kularatne 11957) 52 NL R 425.
Suriya v. Board of Trustees of the Maradana Mosque (1954) 55 NLR 309.
Amarasekera v. Gunapala(1970) 73 NLR 469.
Wijeratne v. Dschou 11974) 77 NLR 157.
Cava v Flick (1954} 2 AIIER 441.
Oando v. Hitchcock (19541 2 All ER 535.
Skinner v. Geary (19311 2 KB 346.
R. B. Weerakoon. for defendant-appellant.
K. Thevarajah for plaintiff-respondent.
Cur adv vuit
The plaintiff-respondent (landlord) has obtained an order for theejectment of the defendant-appellant (tenant) on the ground ofthe tenant having ceased to occupy the premises without reasona-ble cause for a period of not less than six (6) months within themeaning of s.28(1) of the Rent Act of 1972. The landlord pleadedand relied on two other grounds of ejectment, namely, that therent had been in arrears for three months or more after it becamedue and sub letting of the premises without the prior consent inwriting of the landlord. The trial Judge had found in favour of thetenant on each of these two pleas. The matter argued on this
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appeal is therefore the one relating to the issue of non-occupationwithout reasonable cause by the tenant for a period of six monthsor more.
The premises is below Rs. 100/- in respect of the standard rentper mensem. The tenant had rented the premises in 1962. Heappears to have moved into the premises with his wife and somein-laws. In 1969 he had physically left the premises with his wifeand children and taken residence at his father's house. He,however, left behind his in laws and more particularly anunmarried elder sister of his wife aged 40 years. He had also leftbehind some articles of furniture not required by-him at his newresidence.
The tenant at the time of his residence in the premises in suitowned four or five hiring cars. He had disposed of them one byone until he was left with none by 1969. When he had the cars hehad plied them for hire and that was his substantial source ofincome. Having taken residence at his father's house, he had donea business in the manufacture and sale of coir. This business hadtaken him to Colombo once a month. Each time he came toColombo he has spent two or three days together and occasionallya week at the premises in suit where his in-laws were. The premiseswere situated in Colombo while his father's house was elsewhere.
The unmarried sister-in-law was dependent on him for herliving. She had now and then relieved his burden by engagingherself as a hospital attendant. Some of the other in-laws hadfound casual employment. But generally all of them looked to thetenant for support though all the male dependents were grown-ups.
The tenant testified that neither he nor his wife nor any othermember of his family resided in these premises after he left itin 1969. To a pointed question by Court as to why he was keepingthese premises and paying rent his answer was that the occupantsof the house were all dependent on him.
The sister-in-law and a nephew of the tenant also gave evidencesupporting the version of the tenant.
The house-holder's lists for the period commencing November13, 1971 to October 9, 1973 in respect of these premises had beenproduced by the landlord. The action was instituted on November25, 1974. There were two lists for this period. In the list for1971/73 the tenant's name is the 8th in the list. The space forchief house-holder has been left blank. No rice ration book hasbeen entered in the list against the name of the tenant. Nomember of his family had appeared in the list. In the second list
jmadasa v. Pier is (Rodrigo, J.)
for 1973 onwards the name of the tenant does not appear at all.Instead the chief house holder is entered as the sister-in-law.
The factual situation then is that a dependent of the tenantwho was a member of the tenant's household in the premises insuit has been left behind in these premises together with some ofher relatives who are partially dependent on the tenant when thetenant left it with his family to reside elsewhere at his father'shouse. The tenant, however, continued to maintain and supporthis dependents and particularly his sister-in-law in the premisesin suit.
This brings me to a consideration of English decisions on"non-occupying tenant" and Sri Lankan decisions that followthese English decisions.
Wanasundera, J has expressed the view that English decisionsand doctrines on these matters must be used carefully and withdiscrimination. See Fonseka v. Gulamhussein.1
The concept of a "non-occupying tenant" as explained inBrown v. Brash2 has dominated judgments in the few local casesin which this point arose consideration. In that case the conceptwas expressed as follows:-
"The absence of the tenant from the premises may be avertedif he coupled and clothed his inward intention to use it as hishome with some formal, outward and visual sign such as installing a care-taker or representative, be it a relation or not, withthe status of a licencee and with the function of preserving
these premises for his ultimate home-comingApart
from authority, in principle, possession in fact (for it is posses-sion in fact and not with possession in law we are here concer-ned) requires not merely an 'animus possidendi' but a 'corpuspossessionis' vizr some visible state of affairs in which the'animus possidendi' finds expression."
Sabapathy v. Kularatne3 was concerned with the reasonablerequirement by the plaintiff of his premises for his own use andoccupation. The defendant-tenant was not in occupation of thepremises but a brother of his was doing business in the premises.Gratiaen, J was careful to observe that the tenant did not requirethe premises for any member of his family or a dependent of his
11981 (11 Sri L.R. 77.
11948) 1 A.E.R. 922.
52 N.L.R. 425
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but for his brother who was neither a member of his family nor adependent. Gratiaen, J in the circumstances applied Brown v.Brash (supra) and held that the tenant forfeited the protection bfthe Rent Act.
But in Suriya v. Board of Trustees of the Maradana Mosque4 * 6Gratiaen, J held that the principle of Brown v. Brash correctlyunderstood did not penalise a tenant who had lawfully sub■ . the premises.
In Amarasekera v. Gunapalab the tenant who had taken thepremises for his own residence resided there for three or fouryears and thereafter, having got married, resided elsewhere withhis wife and family. The premises were used for occupation by hisbusiness employee and also for a store and a office. Alles, Japplied the concept of non occupying tenant stated in Brown v.Brash and held with the plaintiff landlord. This was the first timein our Courts that a judgment was entered against a tenant inejectment for non occupation by him personally. This was in1970.
But in 1974 Vfijeratne v. Dschou6 came up for considerationand Sharvananda, J delivered the judgment. In this case, the"Shanghai Restaurant" in Bambalapitiya had been closed down bythe tenant and following a dog in the manger attitude the tenantcontinued to’ keep the premises closed and unoccupied byanybody for a number of years resulting in considerable damage tothe premises but Sharvananda, J held that non occupation of thepremises by the tenant was not a ground of ejectment under theRent Act of 1948 as amended. He did not apply the concept ofBrown v. Brash.
We have now the recent case of Fonseka v. Gulamhussein(supra) in which Weeraratne, J has written the judgment. In thiscase the ejectment of the tenant was sought in terms of s.28( 1) ofthe Rent Act of 1972 on the ground that the tenant who was theManaging Director of Savoy Theatres Ltd., has put in as theoccupants of the premises rented the employees of the Cinemaand the tenant is residing elsewhere. The view was taken byWeeraratne, J that the premises are in the occupation of strangers,the Cinema being a separate legal entity. The premises had beenrented by the tenant personally for occupation as a residence byhim and his family. In the result, the tenant was held liable to beejected on the doctrine of Brown v. Brash. In Cave v. Flick7 the
573 N.L.R. 469.
6.7/ N.L.R. 157.
71954 <21 A.E.R.441.
Jinadasa v. Pieris (Rodrigo, J.j
premises were occupied by the tenant's parents and sister, it washeld there the tenant forfeited the protection of the Act. InDando v. Hitchcock8 Lord Coddard observed that the tenant willnot be able to avert ejectment if the premises are being used forthe convenience of the tenant's Manager or partner and not for hisresidence.
So that where a house is kept closed in circumstances fromwhich an inference can be drawn that the tenant does not intendto occupy it any longer as in the "Shanghai Restaurant" case orwhere the house is being exclusively occupied by strangers asin Fonseka ir. Guiamhussein or by business employees of thetenant as in Amarasekera v. Gunapala, the tenant cannot averteviction. But it is urged that the tenant is protected where thehouse is exclusively occupied by a dependent of the tenant as inthis case. This submission assumes that it has been established irithis case that the sister-in-law of the tenant who continued inoccupation was a dependent of the tenant when he was residingthere and continued to be his dependent thereafter. The evidenceon this question is meagre and desultory. It is not surprising. Whatthe tenant had to satisfy the Court was that he had good reasonnot to be in occupation himself, beyond the specified period, andnot that there was reasonable cause for his sister-in-law and hernephews to be there. Here, the tenant has moved with his familyto his father's house. That is the reason why he is not in occupa-tion of this house. He does not intend to return to the premisesand make it his home again. He has ceased to be in occupationsince 1969 and that is more than six months to the date ofaction.
The reasonable cause contemplated in the section is, amongothers, such as the house being under major repairs or the tenanthas been on vacation or business which has taken him out of thearea. The tenant is given a period of grace of six months. He canbe absent with or without cause for this period. But, if he is awayfor a longer period he must give an explanation that is acceptable.This explanation must amount to reasonable cause within themeaning of s.28(1) of the Act. It is not possible or desirable tcgive an exhaustive definition of "reasonable cause.” It is defined inthe Act to "include a cause sanctioned by the Board." But thedoctrine of "non-occupying tenant” as enunciated in Brown v.Brash and followed with reference to s. 28(1) of the Act in Fonse-ka v. Guiamhussein excludes occupation of the premises by relati-ves and strangers and business employees of the tenant as reasona-ble cause for non-occupation. That the tenant has found it moreconvenient to house his relatives or anybody else to whom he had
8.19->4 (2) A.6.R.535.
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obligations is not a reason or cause within the meaning of th'provision to avert eviction. The provision, it is reasonable tassume, was intended by the legislature to provide for situatior*-covered by the concept of "non-occupying tenant" that ha-received judicial consideration in Courts and for which no provi-sion has been made earlier.
Section 28(1) is not directed at the relationship to the tenar*of the occupants of the house that he is no longer occupying. Thutenancy is personal. See Skinner v. Geary? Therefore the tenantmust occupy the house himself. He can, of course, temporarilykeep anybody else in the house if he is not there but for the solepurpose and function of preserving it for his ultimate home-coming. That is the rationale of the judgments in cases cited abovewhere the tenant has been held liable to be ejected.
The alleged dependents of the tenant in this case are not inoccupation of the house temporarily to keep it for the tenant'sultimate home-coming. He could not presumably take his dependents with him to reside at his father's house. So, he had found itconvenient to let them continue in the premises in suit. It islaudable that one should find accommodation for one's dependentrelatives. But if the premises are going to be occupied by themexclusively without the tenant himself being in occupation thelandlord should consent to it. Here the tenant rented the premisesfor his residence. He was there with his family initially. It is notopen to him in view of the section under consideration to putanybody else in the premises permanently behind the landlord'-back.
For these reasons the appeal, in our view, should be dismissrThe judgment of the Court of first instance is affirmedthe appeal is dismissed with costs.
RANASINGHE, J.I agree.
9.(19311 2 K.B. 546.
JINADASA v. PIERIS