Malwattage vs. Dharmawardena
BANDARANAYAKE j., kulatunc.e j. andWADUGODAPITIYA J.
S. C. APPEAL NO. 8/87.
A. NO. 462/79.
C. MOUNT LAVINIA NO. 156/ZL-
25 JANUARY, 26 MARCH, 27 AND 30 SEPTEMBER 1991.
Landlord and Tenant – Rent and Ejectment – Building constructed andleased in contravention of Housing and Town Improvement Ordinance – Iscontract of tenancy in respect of such building illegal? – Applicability ofRent Act to such contracts – In pari delicto potior est conditio defendentis.- Vindicatory action.
The respondent’s father had constructed an unauthorised house on thepremises in suit. The respondent’s mother who was the owner of the pre-mises transferred same to the respondent. The respondent’s father hadplaced the appellant in possession and levied a rent. As the building wasunauthorised it was liable to be demolished as an illegal structure in terms ofthe Housing and Town Improvement Ordinance.
Sri Lanka Law Reports
 2 Sri L.R.
The maxim in pari delicto potior est conditio defendentis docs notapply as the respondent had nothing to do with the alleged contract oftenancy, being in no way party to it.
The contract was illegal as the building being an unauthorisedone, was incapable of being let. An illegality cannot give rise to tenancyrights nor can the Rent Act be used to cover up and rectify an illegalityunder the Housing and Town Improvement Ordinance.
There is an express statutory prohibition against occupying abuilding which is unauthorised and built in contravention of the provisionsof the Housing and Town Improvement Ordinance (sections 56(1), 7(1) and13(1)] and liable to be demolished (sections 12 and 13(2).
Cases referred to:
Jajbhay v. Cassim, (1939) SALR AD 537, 550
Thcivandram v. Ramanathan Chet liar S.C. 40/83; C.A. 485/74(F) ;
S.C. Minutes of 7.5.1986.
APPEAL from the judgment of the Court of Appeal.
Faiz .Mustapha P.C., with Rauf Hakeem, H. Witanachchi, A. Panditharatneand Sanaka de Silva for Defendant-Appellant.
H. L. De Silva P.C. with M. Sivanathan, Miss. Sivamalar Sivanathan andP.M. Ratnawardena for respondents.
Cur. adv. vult.
October 28, 1991.
This appeal arises from an action instituted in the DistrictCourt of Mount Lavinia on the 9th of November, 1976 by thePlaintiff-Appellant-Respondent (hereinafter referred to as theRespondent) against the Defendant-Respondent-Appellant(hereinafter referred to as the Appellant), for a declaration of
Malwattage v. Dbarmawardeoa
title to the premises in suit viz., premises No. 164, AndersonRoad, Nedimala, Dehiwela; for the ejectment of the Appellant;for an order directing the Appellant to demolish the unautho-rised structure standing on the said land and for damages.
The Respondent averred in her plaint that her motherDona Sandaseeli, the former owner of the land and premisestransferred it to her in 1974. The Respondent’s case was that itwas her father who had put up the unauthorised structure onthe said land, which structure was now being occupied by theAppellant, and that it was her father who had permitted theAppellant to occupy it on a temporary basis. The Respond-ent’s position was that the Appellant was a mere licencee andthat the permission given was withdrawn by notice dated19.7.1976 (marked PI 4).
The Respondent’s position then, was that despite the noticeto quit, the Appellant was continuing to occupy the saidunauthorised structure which did not come within the provi-sions of the Rent Act, and further, that her occupation wascontrary to the provisions of the Housing and TownImprovement Ordinance (Cap. 268).
In her answer the Appellant stated that she was in fact thetenant of a house and that she originally came into occupationof the premises in suit in 1963 under the Respondent’s father.She denied that she was in occupation of an unauthorisedstructure and produced in evidence, six rent receipts (markedD1 to D6) issued by the Respondent’s father acknowledgingthe payment of rent by the Appellant in respect of the saidpremises.
At the trial, it also transpired that the Respondent’s fatherhad instituted action in March, 1969 for the ejectment of theAppellant from the premises in suit and for the recovery ofarrears of rent (plaint marked P7). Thereafter, the Respond-ent’s mother had sought, in 1972, to eject the Appellant andrecover arrears of rent (plaint marked P8). It appears thatboth these actions were subsequently withdrawn.
Sri La oka Law Reports
 2 Sri L.R.
At the conclusion of the trial, the Learned District Judgeheld:—
that the Respondent is the owner of the premises;
that the Appellant is in occupation of a house withthree rooms and not of a temporary shed;
that the construction of the said house was not inaccordance with the provisions of the Housing andTown Improvement Ordinance;
that the Appellant entered into occupation of the pre-mises as a tenant under the Respondents father, and
that the contract of tenancy was lawful.
The Learned District Judge granted the Respondent a dec-laration that she is the owner of the premises, but refused toeject the Appellant from the premises.
The Respondent thereupon appealed against the saidjudgement to the Court of Appeal which allowed the appealand set aside the judgement of the District Court, and directedthat decree be entered for the ejectment of the Appellant, herservants, agents, and all those holding under her, from thepremises in suit. The writ of ejectment, however, was not toissue till 2nd May, 1988.
The main point of contention in the appeal before theCourt of Appeal on behalf of the Respondent was that thealleged contract of tenancy was invalid for illegality in asmuch as it contravened specific provisions of the Housing andTown Improvement Ordinance.
The Court of Appeal held:—
that having regard to the ambit and intent of the Hous-ing and Town Improvement Ordinance, the contract oftenancy upon which the Appellant seeks to found herclaim to occupy the premises is tainted with statutory
Malwatlage v. Dbarmawardcoa
illegality and is therefore ineffective to create rights. Assuch, the contract of tenancy is illegal, and the provi-sions of the Rent Act do not apply to a contract oftenancy rendered illegal by statute;
that the premises in suit having been constructed with-out the requisite authority, is liable for demolitionunder the provisions of the said Ordinance, and,
that even though the culpability of the Respondent isno less than that of the Appellant, the Roman DutchLaw recognises that the general rule embodied in themaxim in pari delicto potior est conditio defendentis(the defendant’s position is superior if culpability isequal) may be relaxed in cases “where it is necessary toprevent injustice or to promote public policy” Jajbhayv. Cassim (1). The Court of Appeal held on this pointthat, “Neither the interests of justice nor the require-ments of public policy justify the continued occupationby the defendant of these unauthorised premises”.
The Appellant appeals from this judgment.
At the hearing before us, the finding of the Learned Dis-trict Judge that the Respondent was the owner of the premisesin suit was not disputed; nor was it disputed that the structureoccupied by the Appellant, by whatever name called, was notan authorised structure in terms of the provisions of the Hous-ing and Town Improvement Ordinance. The assessment regis-ters do not refer to a building as such (P8, P9, P10, Pll andP16). Further, there has been no payment of rates in respect of“a house”. There was also no dispute that the appellant hadnot come into occupation under the Respondent’s predecessorin title; namely, her mother, who had herself been charged in
the Magistrates’ Court of Mount Lavinia for breach of theprovisions of the Housing and Town Improvement Ordinancein connection with the said unauthorised structure. It wascommon ground that the unauthorised structure in question
Sri Lanka Law Reports
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was put up by the Respondent's father (now deceased) whowas not the Respondent's predecessor in title and that it washe who allowed the Appellant to occupy the premises and,further, that it was he (the Respondent’s father) and not eitherthe Respondent or her mother who issued receipts for rent. Itwas also not disputed that the Appellant never attorned eitherto the Respondent or to her mother.
Learned President’s Counsel for the Appellant, whilst con-ceding that the structure in question was constructed withoutan approved plan and was not in conformity with the provi-sions of the Ordinance submitted before us that this penalisesonly the person who allows the occupation and not the personwho occupies the unauthorised premises. Learned President'sCounsel for the Appellant submitted secondly that the Appel-lant was in occupation on a contract of tenancy and that theillegality with regard to the unauthorised structure she occu-pied, did not affect the contract itself. The Ordinance onlyregulated housing and did not affect contracts entered into inrespect of premises. He therefore submitted that the Court ofAppeal misdirected itself when it held that the Ordinance ren-dered illegal, collateral contracts in respect of the premises.He submitted, thirdly, that both on the facts and the law, theCourt of Appeal misapplied the principles of the maxim, inpari delicto potior est conditio defendentis. His submissionwas that far from the culpability of the two parties beingequal, the culpability of the Respondent was the greater, andtherefore the maxim did not apply at all to this case. I amunable to agree with Learned Counsel on the first and secondmatters urged by him above. On his third submission, my ownview is that the maxim indeed does not. apply to this case atall; but not for the reason urged by Learned Counsel for theAppellant. My view is that the Respondent is not in paridelicto, in as much as she had nothing to do with the allegedcontract of tenancy, being in no way a party to it and thattherefore there is no culpability whatsoever on her part. Themaxim thus does not apply for this reason.
Malwattage v. Dharmawardena
Learned President's Counsel for the Appellant made a finalsubmission introducing a new ground without notice to theRespondent; to which Learned President’s Counsel for theRespondent objected. The new point was that this was not atenancy action at all, but a rei vindicatio action based on the.ground that the tenant (the Appellant) was a trespasser for thereason that her contract of tenancy was illegal. Therefore, evenconceding that the contract of letting was illegal, the Respond-ent was not entitled to judgment in ejectment. I find myselfunable to agree with this submission, in as much as, in anyevent, this cannot be said to be a rei vindicatio action basedon the ground that the Appellant is a trespasser. It is not pos-sible to hold that the Respondent is not entitled to judgmentin ejectment.
Learned President’s Counsel for the Respondent on theother hand, referred us to documents marked P6, P9 and P10which are extracts from the Assessment Registers in respect ofthe premises in suit covering the years 1951 to 1969, whereinthe property is described as a “garden”, and no building ofany sort is mentioned. He also referred us to documentsmarked D1 to D6 which are rent receipts issued to the Appel-lant by the Respondent’s father who was at no time the prede-cessor in title of the Respondent. These receipts are for July,1965, August 1965, September 1965, April 1967, March 1967respectively. Counsel submitted that after 1967, no rent wasgiven by the Appellant either to the Respondent’s father ormother. He pointed out that the Appellant herself had statedin evidence that she stopped paying rent to the Respondent’sfather and thereafter deposited the money with the MunicipalCouncil. There is no evidence whatsoever, that the Respond-ent’s predecessor in title, viz., her mother, either received oraccepted rent from the Appellant at any stage. In 1974, theRespondent acquired title to the property in question from hermother, who transferred it to her upon a Deed.
Thereafter, there was no attornment to the new owner, viz.,the Respondent, either. Learned President’s Counsel for the
Sri Lanka Law Reports
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Respondent submitted that therefore there was no illegal con-tract in which the Respondent and the Appellant participated.In fact there was no contract at all between them. On theother hand, what the Respondent did (when she become ownerof the premises in 1974) was to serve the quit notice P14 onthe Appellant.
Learned President’s Counsel for the Respondent submittedfurther, that, on the question of the applicability of themaxim, in pari delicto potior est conditio defendentis, theRespondent’s father might be said to have been in pari delicto,but not the Respondent, for the reason that the Respondentdid not receive any rent from the Appellant in respect of thepremises in suit; nor did the Respondent ask the Appellant toattorn to her, nor did the Appellant ever attorn to theRespondent at any stage.
He next made submissions on the question of illegality, andurged that the alleged contract of tenancy was invalid for ille-gality, in as much as it contravened certain statutory provi-sions. He referred us to the following provisions in the Hous-ing and Town Improvement Ordinance:
Section 5 states:
“No person shall erect or re-erect any building withinthe limits administered by a local authority, except inaccordance with plans, drawings, and specificationsapproved in writing by the Chairman”
Section 6 (1) states:
“No person shall make any ialterations in any buildingwithin the limits administered by a local authoritywithout the written consent of the Chairman”.
Section 7 (1) states:
The Chairman shall not—
approve any plan or specification of any build-ing; or
Malmttage v. Oharmawardeaa
consent to any alteration in any building,
which shall conflict, or cause such building to conflict,with the provisions of this Ordinance or any otherenactment".
Section 12 sets out the Chairman’s powers to demolishunauthorised structures.
Section 13 (1) states:
"Any person who shall—
commence, continue or resume building opera-tions in contravention of any provisions' of thisChapter;
execute any building operation in contravention
of any of the provisions of this Ordinance or ofany local by-law..shall be liable on sum-
mary conviction to a fine not exceeding Rs.300/- and to a daily fine of Rs. 25/- for everyday on which the offence is continued afterconviction”
Section 15 (1) states:
"No building constructed after the commencement ofthis Ordinance shall be occupied, except by a caretaker,until the Chairman has given a certificate that suchbuilding, as regards construction, drainage, and in allother respects, is in accordance with law”.
Section 15 (3) states:
“Any person who occupies or allows to be occupied anybuilding in contravention of this Section shall be guiltyof an offence, and shall be liable to a penalty notexceeding twenty-five rupees for each day during whichthe contravention continues”.
Sri Lanka Lav Reports
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Learned Counsel submitted that the contract spoken ofwas quite clearly illegal, and cited the following passage fromWille’s “Landlord and Tennant in South Africa”, (4th Edition)at page 7, under the heading, “Illegality of Lease” : —
A lease, like any other contract, must not be illegal; ifthe making of the lease, or the performance agreedupon, or the ultimate purpose of both parties in con-tracting is prohibited by legislation, or is contrary topublic policy, or is contra bonos mores, the lease isvoid of legal effect”.
At page 28, the following passage appears:—
“The property to be let must not be extra commercium-
e., the letting of which is prohibited by the commonlaw on the grounds of public policy or morality or bystatute”.
Learned Counsel for the Respondent submitted, therefore,that in as much as section 15(3) of the Ordinance prohibitedany person from occupying or allowing to be occupied anybuilding without a certificate of conformity, the alleged con-tract of letting was illegal. He added that the Respondent(daughter) should, not be saddled with an illegal tenancycreated by her father. It is in evidence that the Respondent’smother was prosecuted in respect of the illegal occupation andthat she was fined Rs. 50/-.
I am in entire agreement with the submissions of LearnedCounsel for the Respondent. I must state here that in the cir-cumstances, the Appellant’s claim to protection under the RentAct has no merit and must fail. An illegality cannot give riseto any such rights; nor can the Rent Act be used to cover upand rectify an illegality under the Housing and TownImprovement Ordinance.
It is pertinent to observe that in the instant case no onedisputed the fact that the structure in question was an unauth-
Malwattage v. Dharmawardeoa
( Wadugodapidya, J.)
orised one and that there was no certificate of conformity inrespect of the said structure, which is the subject matter of thealleged tenancy. Thus, in terms of Section 15(3) of the Ordi-nance, both the person who actually occupies such a structureas well as the person who allows another to occupy it, will beguilty of an offence and will be liable to a continuing penaltynot exceeding Rs. 25/- for each day during which the contrav-ention continues. There can be no doubt therefore, that thereis an express statutory prohibition against occupying such abuilding, which in turn means that the structure in question isnot one which is “capable of being let” under our law.According to Dr. H, W. Thambiah (“Landlord and Tenant inCeylon,'* citing Vanderlinden and Maasdorp), this is one ofthe essential requisites of a contract of letting and- hiring,(pages 2 and 3). Cooper in “The South African Law of Land-lord and Tenant’ agrees when he says:’’ A lease like any othercontract must be legal; it must not be prohibited by sta-tute” (page 10).
In the Court of Appeal judgment., G. P. S. de Silva J.(President of the Court of Appeal) as he then was, said:—
“Having regard to the ambit and the intent of the Ordi-nance, I am of the opinion that the contract of tenancyupon which the defendent (i.e. the Appellant in thisappeal) founds her claim to occupy the premises istainted with statutory illegality and is therefore ineffec-tive to create rights. The principle is that when
the legal title to the premises is admitted or proved tobe in the plaintiff, the burden of proof is on thedefendant to show that he is in lawful possession, (perSharvananda C. J. in Theivandran vs. RamanathanChettiar (2) S.C. 40/83; C.A. 485/74 (F); S.C. Minutes
of 7.5.86). This the Defendant has failed to do
The premises in suit having been constructed withoutthe requisite authority is liable to demolition under the
Sri Lanka Law Reports
 2 Sri L.R.
provisions of the Ordinance (Section 13(2). The plain-tiff has given one month’s notice to the defendant tovacate the premises (PI4). Neither the interests of jus-tice, nor the requirements of public policy justify thecontinued occupation by the defendant (i.e. Appellantin this appeal) of these unauthorised premises. Nor dothe provisions of the Rent Act apply to a contract oftenancy rendered illegal by statute.
I would accordingly allow the appeal, set aside thejudgement of the District Court, and direct that Decreebe entered for the ejectment of the defendant, her ser-vants, agents and all those holding under her, from thepremises in suit”.
In accordance with the reasoning set out earlier in thisjudgment: I have to state that I see no reason to interfere withthe judgment of the Court of Appeal*
I would therefore dismiss this appeal, with the directionthat writ of ejectment will issue forthwith.
The Respondent will be entitled to costs of appeal fixed atRs. 500/-.
Bandaranayake J. — I agree.Knlatunge J. — I agree.
MALWATTAGE V. DHARMAWARDE