COURT OF APPEALDR. R.B. RANARAJA, J.
A. 1008/91 F
C. COLOMBO NO. 6742 RE.
Rent and Ejectment – Rent Act 7 of 1972 -S.22, S.22(7), S.36 – Gift todaughter – Reasonable requirement pleadings – Issues – S. 149 CivilProcedure Code – Issue framed during course of Judgment – Specifieddate.
One J. was the Tenant and H. the Landlord of the premises in question.The said H. gifted the premises to her daughter, the Plaintiff on 2.2.76 ,who on 27.8.82 gave Notice to J to hand over vacant possession to her onor before 31.8.83, as the premises were reasonably required for her occu-pation. J died on 17.4.83 and her daughter the Defendent succeeded tothe Tenancy and was accepted by the Plaintiff on 10.10.83. The Plaintiffthereafter informed the Defendant by letter dated 31.1.84 to quit andhandover vacant possession on nr before 28.2.85 as it was reasonablyrequired for her occupation. As the Defendant failed to vacate the saidpremises, the Plaintiff filed action to evict her. The Defendant filed answerstating that the Plaintiff did not reasonably require the premises for heroccupation and in any event she could not maintain the action as she hadfailed to comply with S.22 of the Rent Act. During the course of the judge-ment the learned District Judge raised a further issue "Can the Plaintiffhave and maintain the action in view of S.22 (7) of the Rent Act."
The learned District Judge held with the Plaintiff on the issue of reason-able requirement but in view of his answer to the new issue in the nega-tive, dismissed the Plaintiff's action.
It was contended by the Plaintiff-Appellent that the learned District Judgeshould not have raised an additional issue in the course of his judgmentafter the conclusion of the respective cases of the parties; it was furthercontended that in any event, as the Defendant became the Tenant upon thedeath of the previous tenant, her mother on 17.4.83, and that the Defend-ants’ mother became the Tenant on the death of her husband in 1978, asthe Plaintiff had by gift acquired ownership prior to that in 1976, the Plaintiffwas not barred by S.22 (7) from instituting action.
the provisions of S.149 of the Civil Procedure Code do not preclude aDistrict Judge from framing a new issue after the parties have closed theirrespective cases and before the judgement is read out in open Court.
Per Dr.Ranaraja, J.
"It is not necessary that the new issue should arise on the pleadings. Anew issue could be framed on the evidence led by the parties orally or inthe form of documents. The only restriction is that the Judge in framing anew issue should act in the interests of justice, which is primarily to en-sure the correct decision is given in the case."
The relevant issue is a question of law on which it is not absolutelynecessary for the Judge to hear either party before answering it.
In the definition of the expression 'specified date', the words, the dateon which 'the Tenant for the time being came into occupation' can onlymean the date on which the Tenant for the time being came into occupa-tion Qua Tenant, on that interpretation both the respondent and her motherbecame tenants' after the plaintiff acquired ownership of the premises bygift from her mother, who herself had acquired ownership on 17.1.1942.
AN APPEAL from the judgment of the District Court of Colombo.
Cases referred to :
Silva v. Obeysekara 24 NLR 97 at 107
Senarat Nandadeva v. Gulamhussein S.C. No. 65/93 SCM 30.6.94 1994B.A.L.J. Vol. V. Part 11 page 12.
N. R. M. Daluwatte P.C. with Hemasiri Withanachchi for PetitionerS. A. Parathaiingam P.C. with M.F. Musthapa for Respondent.
Cur. adv. vult.
June 12, 1996.
DR. RANARAJA, J.
One Mrs. Jainudeen was the tenant and Mrs. Mohamed Hadi wasthe landlord of premises No.69/3, Ketawelamulla Lane, Dematagoda.The said Mrs. Hadi by Deed No. 198 gifted the said premises to herdaughter the Plaintiff on 2.2.76, who on 27.8.82 gave notice in writingto the said Mrs. Jainudeen to quit and hand over vacant possession toher on or before 31.8.83, as the premises was reasonably required forher occupation as a residence. Mrs. Jainudeen died on 17.4.83 andher daughter the Defendant succeeded to the tenancy and was ac-cepted as such by the Plaintiff's letter dated 10.10.83. The Plaintiffthereafter informed the Defendant by letter dated 31.1.84, to quit andhand over vacant possession of the premises on or before 28.2.85 as itwas reasonably required for her occupation as a residence. As theDefendant failed to comply, the Plaintiff filed action to have the Defend-ant ejected from the premises and recover damages at the rate of Rs.62/49 from 1 st March 1985 till she obtained vacant possession.
The Defendant filed answer stating inter alia, that the Plaintiff didnot reasonably require the premises for her occupation and in any event,she could not maintain the action as she had failed to comply with theprovisions of section 22 of the Rent Act. Trial commenced on nineissues. The Plaintiff and the Defendant gave evidence in support oftheir respective cases. During the course of the judgment the learnedDistrict Judge raised a further issue namely;
(10) Can the Plaintiff have and maintain the action in view of provi-sions of section 22 (7) of the Rent Act?
The learned District Judge held with the Plaintiff on the issue ofreasonable requirement but in view of his answer in the negative toissue No. 10, he decided that it was unnecessary to answer theissues 5 to 9 and dismissed the Plaintiff's action with costs. Thisappeal is from that judgment.
Learned counsel for the Appellant submitted that the learned Dis-trict Judge should not have raised an additional issue, in the course ofhis judgment after the conclusion of the respective cases of parties,since such an issue was not in the contemplation of either party.
Section 149 of the Civil Procedure Code provides: "The Court may,at any time before passing a decree, amend the issues or frame addi-tional issues on such terms as it thinks fit".
Bertram C.J. in Silva v Obeysekara(1) commenting on the discre-tion of a judge to allow issues after the commencement of the trialobserved, “No doubt it is a matter within the discretion of the Judgewhether he will allow fresh issues to be formulated after the case hascommenced, but he should do so when such a course appears to bein the interests of justice, and it is certainly not a valid objection tosuch a course being taken that they do not arise on the pleadings."
The provisions of section 149 considered along with the observationof Bertram C.J. certainly do not preclude a District Judge from fram-ing a new issue after the parties have closed their respective casesand before the judgment is read out in open court. It is not necessarythat the new issue should arise on the pleadings. A new issue couldbe framed on the evidence led by the parties orally or in the form ofdocuments. The only restriction is that the Judge in framing a newissue should act in the interests of justice, which is primarily to ensurethe correct decision is given in the case. It also means that theJudge must ensure that when it is considered necessary to hear par-ties to arrive at the right decision on the new issue, that they bepermitted to lead fresh evidence or if it is purely a question of law, thatthey be afforded an opportunity to make submissions thereon.
In the present appeal, the relevant issue is a question of law onwhich it was not absolutely necessary for the Judge to hear eitherparty before answering it. Thus I am of the view there was no prejudicecaused to either party on that score.
The Plaintiff has not pleaded the specific section of the Rent Actunder which she claimed relief. Admittedly the standard rent of thepremises does not exceed Rs.100/-. The action has therefore to befounded on section 22 (1) (b). It is not denied that the plaintiff gave theDefendant a year's notice in terms of section 22 (6). The learned Dis-trict Judge's finding that the Plaintiff is not the owner of more than oneresidential premises is also not challenged.
The learned District Judge's finding that section 22 (7) was a bar toinstituting and maintaining the action was strenuously attacked bylearned counsel for the Appellant.
The relevant part of the section reads;
Notwithstanding anything in the preceding provisions of this sec-tion, no action or proceedings for the ejectment of the tenant ofany premises referred to in sub section (1) or subsection (2) (i) shallbe instituted.
Where the ownership of such premises was acquired by the land-lord, on a date subsequent to the specified date by purchase or byinheritance or gift other than inheritance or gift from a parentor spouse who had acquired ownership of such premises on adate prior to the specified date, provided
In this subsection specified date "means the date on which thetenant for the time being of the premises, or the tenant uponwhose death the tenant for the time being succeeded to the ten-ancy under section 36 of the Act or section 18 of the Rent Restric-tion Act (Chapter 274) came into occupation of the premises."
The Defendant became the tenant of the premises upon the death ofthe previous tenant, her mother, on 17.4.83. It is in evidence that theDefendant's mother became the tenant of the premises on the death ofher husband in 1978. Therefore learned counsel for the Appellant sub-mitted as the Plaintiff had by gift from her mother acquired ownershipprior to that in 1976, she was not barred by section 22 (7) from insti-tuting action to recover the said premises on the ground of reasonablerequirement for occupation as a residence.
Learned counsel for the Respondent on the other hand argued thaton a plain reading of section 22 (7) the word “came into occupa-tion" should be taken literally to mean the date on which either thepresent tenant or the tenant to whose tenancy rights the present ten-ant succeeded came into physical occupation, and the date of suchphysical occupation should be considered the" specified date." If thatinterpretation was accepted, he argued, the present tenant came intooccupation of the premises when her father was the tenant, about 25years prior to the day she gave evidence, that fact would be a bar toinstituting action under section 22 (1) (b). Although this interpretationhas its attractions, since the purpose of the Rent Act is to protectthe tenants, yet I am bound by the judgment of the Supreme Court inSenarat Nandadeva v GulamhusseinW, where it was held "in thedefinition of the expression specified date", the words "the date onwhich the tenant for the time being came into occupation of thepremises" can only mean the date on which the tenant for the timebeing came into occupation Qua Tenant. On that interpretation boththe Respondent and her mother became tenants of the premises afterthe Plaintiff acquired ownership of the premises by gift from her mother,who herself had acquired ownership of the premises upon Deed No.3292 dated 17.1.1942.
The learned District Judge was therefore in error in holding that thePlaintiff was debarred by section 22(7) from instituting the action againstthe Defendant. On the evidence led the issues framed should havebeen answered as follows.
At the rate of Rs. 62/49 per month from 1.3.85 till vacant possession is obtained.
Does not arise
Does not arise
The judgement of the District Judge is set aside. Enter decree asprayed for in the plaint. The appeal is allowed with costs.