SUPREME COURTBANDARANAYAKE, J.
AMERASINGHE, J. ANDDHEERARATNE, J.
S.C. NO. 44/91
A. NO. 540/88 (F)
C. MT. LAVINIA 2540/RE05 FEBRUARY 1992.
Landlord and tenant – Reasonable requirement – Sections 22( 1) (bb) and (1C) ofthe Rent Act No. 7 of 1972as amended by Law No. 10 of 1977 and Act No. 55 of1980 – Provision of alternative accommodation by the Commissioner of NationalHousing.
The certainty of providing alternative accommodation by the Commissioner ofNational Housing to the tenant, is a factor that the court should take intoconsideration in determining the reasonableness of a landlord’s requirement. Thisis not a decisive factor. The other relevant facts accepted by the District Judge inthis case, however militate against the reasonableness of the landlord’srequirement.
Cases referred to:
Mawjood v. Pussadeniya (1987) 2 Sri LR 287,289.
Abeyewardene v. Nicolle (1944) 45 NLR 350.
Mohamed v. Salahudeen (1945) 46 NLR 166.
Raheem v. Jayawardene (1944) 45 NLR 313.
Wijemanne & Co. Ltd. v. Fernando (1946) 47 NLR 62.
Fernando v. David (1948) 49 NLR 210.
Atukorale v. Navaratnam (1948) 49 NLR 461.
Gunasena v. Sangaralingam Pillai & Co. (1948) 49 NLR 473.
Ismail v. Herft (1948) 50 NLR 112,116.
Andree v. de Fonseka (1950) 51 NLR 213, 214.
Arnolis Appuhamy v. de Alwis (1958) 60 NLR 141,142.
Abdul Rahim v. Gunasena Corporation Ltd. (1964) 66 NLR 419, 421.
APPEAL from judgment of the Court of Appeal.
R. K. S. Surest7 Chandra for plaintiff-appellant.
K. S. Tillakaratne for defendant-respondent.
Cur adv vult.
28th February, 1992.
Plaintiff sued defendant his tenant to have him ejected from therented premises, the standard rent per month of which did notexceed Rs. 100, on the ground that the premises ‘were reasonablyrequired for occupation as a residence for the landlord’ in termsof section 22(1) (bb) of the Rent Act No. 7 of 1972 as amended byLaw No. 10 of 1977 and Act No. 55 of 1980. The original courtdismissed the plaintiff's action and that judgment was affirmed by theCourt of Appeal.
The only point of law taken up by the appellant before us, a pointnot covered by authority so far, is whether the duty of theCommissioner of National Housing to provide alternativeaccommodation to the tenant before he is ejected, is a factor to betaken into consideration by a court in coming to a decision undersection 22(1) (bb) that the premises are reasonably required foroccupation as a residence for the landlord.
Section 22 (1C) reads; ‘Where a decree for ejectment of the tenantof any premises referred to in paragraph (bb) of subsection (1) isentered by any court on the ground that such premises arereasonably required for occupation as a residence for the landlord orany member of the family of such landlord, no writ in execution ofsuch decree shall be issued by such court until after theCommissioner of National Housing has notified to such court that he
is able to provide alternate (sic) accommodation for such tenant'.(‘Alternate’ has been erroneously used for ‘alternative’ – seeMawjood v. Pussadeniya(1).)
The view that in reaching a determination under section 8(C) of theRent Restriction Ordinance No. 60 of 1942 (a section comparablewith section 22(1) (bb) of the Rent Act No. 7 of 1972 as amended)the requirement of premises for landlord’s use is reasonable, thesurrounding relevant facts must be considered and the lack ofalternative accommodation for the tenant is one such relevant fact,was taken in the cases of Abeyewardene v. Nicolle(2) and Mohamedv. Salahudeen<3) and as obiter dicta in Raheem v. Jayawardenem andWijemanne & Co., Ltd. v. Fernandol5). The contrary view wasexpressed in Fernando v. David(e) and Atukorale v. Navaratnamm,that the requirement under section 8(c) shall be construed from thelandlord's point of view exclusively and all outside factors, includingthe tenant’s difficulties, are irrelevant and ought not to be taken intoaccount. This conflict was resolved by the decision in Gunasena v.Sangaralingam Pillai & Co.<8), which favoured the former view andsince then that view has been consistently followed by courts. Thefoundation for that view appears to be that 'reasonableness’ is notone-sided.
If non-availability of alternative accommodation for the tenant is arelevant factor in assessing the reasonableness of a landlord’srequirement, so should be the availability of alternativeaccommodation for the tenant, as reasonableness demandsconsideration by court of competing interests. However, that is onlyone relevant factor and not a decisive factor. As observed byWindham, J. in Gunasena v. Sangaralingam Pillai (supra) ‘And so faras concerns the question of alternative accommodation, I wouldguard against saying that the court must satisfy itself (as it mustunder the English Acts) that there is alternative accommodation forthe tenant before eviction under section 8(c). That is not the position.
A case might well occur where, after duly considering the facts ofalternative accommodation the court might still consider that thelandlord’s requirement was reasonable. This point was made clear bySoertsz, J. in Abeyewardene v. Nicolle (supra). Alternativeaccommodation is a relevant factor no more and no less, indetermining whether the requirement of the premises for thelandlord’s purposes is reasonable.
Had the plaintiff obtained judgment in his favour, the eviction of thetenant could be effected only after the Commissioner of NationalHousing notifies court that he is able to provide alternativeaccommodation. The date at which the reasonable requirement of thelandlord should be shown to exist is the date when the court makesthe ejectment order and not the date of the institution of the action.See Ismail v. Herft(9); Andree v. de Fonseka(,0>; Arnolis Appuhamy v.de Alwis11,1 and Abdul Rahim v. Gunasena Corporation LtdlK)
Applying the principles emerging from the authorities referred toabove, it seems to me that learned counsel for the appellant iscorrect in his submission that the certainty of providing alternativeaccommodation to the tenant by the Commissioner of NationalHousing was a factor that the court should have taken'intoconsideration in determining the reasonableness of the landlord’srequirement. But what do other relevant facts as accepted by thelearned judge reveal?
The plaintiff’s wife, daughter and son reside in a house giftedto the daughter by his wife. No estrangement with the wife andchildren was alleged.
The plaintiff resides in another house which is not a temporaryresidence as he unsuccessfully attempted to picture in court.
That the plaintiff had gifted to his son an upstair houseconsisting of two units each bearing a separate assessment number.In respect of the upper apartment, the plaintiff holds a decree ofejectment against its tenant, entered by court of consent between theparties; the apartment on the ground floor had been kept closed for aperiod of about two and a half years at the time the plaintiff gaveevidence.
These relevant facts militate against the reasonableness of thelandlord’s requirement so much, that even if the certainty of providingalternative, accommodation for the tenant by the Commissioner ofNational Housing was taken into consideration, no court couldpossibly have with justification arrived at a finding different from whatwas reached by the original court.
The judgment of the Court of Appeal is affirmed and the appeal isdismissed with costs.
BANDARANAYAKE, J. – / agree.AMERASINGHE, J. – / agree.
ABEYSEKERA v. CAROLIS