Jiffry v. Esufali
SUPREME COURTG. P. S. DE SILVA, CJ.,
WIJETUNGA, J. ANDGUNASEKERA, J.
SC APPEAL NO. 140/97CA APPEAL NO. 95/94(F)
DC MT. LAVINIA NO. 2516/RE
JANUARY 13TH, FEBRUARY 2ND AND 16TH AND
MARCH 3, 1998.
Rent and ejectment – Recovery of residential premises – Rent Act – Section 22(2) (bb) (ii) – Prohibition against recovery in section 22 (7) – Right of the Landlordwho acquires ownership of the premises after the commencement of the tenancywith defendant.
The plaintiff who was the lessee of the premises in suit let it to the defendanton 1.8.65. During the subsistence of the tenancy the ownership of the premiseswas transferred by the owner to the plaintiff on 2.2.79. Thereafter the plaintiffinstituted action on 16.8.86 for ejectment of the defendant in terms of section22 (2) (bb) (ii) of the Rent Act. The defendant pleaded that the plaintiff acquiredownership of the premises subsequent to the “specified date” and by reason ofthe provisions of Section 22 (7) of the Act, the plaintiff could not have and maintainthe action.
Section 22 (2) (bb) (ii) of the Rent Act is intended to benefit a categoryof persons who may for convenience be described as “single houseowners". This, however, does not mean that ownership of one house ora part of house is a condition precedent to the institution of an actionin ejectment.
Section 22 (7) is intended to potect a tenant from eviction by a personwho had purchased the premises over the head of the tenant and thusbecoming the new landlord. It was not by acquisition of ownership thatthe plaintiff became the landlord of the defendant. The plaintiff merelyconsolidated his rights by the subsequent purchase of the premises. Theright to sue the defendant in ejectment had accrued to the plaintiff beforehe became the owner of the premises.
Cases referred to:
M. I. Aboobakar v. Jeenath Sulaiha Sulaiman SC Appeal No. 30/91 SC.Minutesof 18th December, 1991.
Aiyathurai v. Shanmugavadivu SC.Appeal No. 81/86 SC Minutes of 11thOctober, 1991.
Sri Lanka Law Reports
(1998) 2 Sri L.R.
APPEAL from the judgment of the Court of Appeal.
N. R. M. Daluwatta, PC with Hemasiri Withanachchi for the defendant-appellant.A. A. M. Marleen with A. M. Zameer for the plaintiff-respondent.
Cur. adv. vult.
17th March, 1998.
G. P. S. DE SILVA, C.J.
The plaintiff instituted these proceedings on 16.6.86 seeking, inter alia,the ejectment of the defendant who was his tenant from the premisesin suit. The ground of ejectment relied on by the plaintiff is section22 (2) (bb) (ii) of the Rent Act. The plaintiff averred in his plaint:
that he is the owner of not more than one residential premises:
that the standard rent of the premises exceeded Rs.100;
that he has deposited a sum equivalent to five years' rent withthe Commissioner of National Housing for payment to thedefendant. The defendant in his amended answer pleaded thatthe plaintiff acquired ownership of the premises subsequent tothe "specified date" and by reason of the provisions of section22 (7) of the Rent Act the plaintiff could not have and maintainthis action. The defendant relies on the statutory bar in section22 (7) of the Rent Act. Vide Issue No. 8 which (as translated)reads thus: "Do the provisions of section 22 (7) of the RentAct constitute a bar to the plaintiff instituting and/or maintainingthis action?"
At the conclusion of the trial, the District Court answered IssueNo. 8 in the affirmative and dismissed the plaintiff's action. Theplaintiff's Appeal to the Court of Appeal was successful; the judgmentof the District Court was set aside and the plaintiff was declaredentitled to a decree in ejectment. The defendant has now preferredan appeal to this Court.
The plaintiff was the tenant of the premises in suit from 1950 underone Mrs. Daveson. The premises were sold in execution of a moneydecree against Mrs. Daveson and her husband. Norman Esufali, the.brother of the plaintiff, purchased the premises on fiscal's conveyance
Jiffry v. Esufali (G. P. S. De Silva, C.J.)
dated 8.10.1956 (P8). Subsequent to the purchase of the propertyby Norman Esufali, the plaintiff had entered into a lease agreementdated 17.8.59 (P9) with the aforesaid Mrs. Daveson. Thereafter theplaintiff shifted his residence to another place and he gave thepremises on rent to the defendant for a period of 4 years by a leasebond dated 15.9.65 (P10). The defendant came into occupation ofthe premises on 1.8.65. The premises were transferred by NormanEsufali to the plaintiff by deed No. 381 of 2.2.79 (P11). On thesefacts, which were not in dispute, it is clear (a) that the plaintiff cameinto occupation of these premises as far back as 1950 as a tenantunder Mrs. Daveson; (b) that the defendant came into occupation ofthe premises on 1.8.65 as a tenant under the plaintiff; (c) that theplaintiff acquired ownership of the premises on 2.2.79 after the defendantcame into occupation of the premises on 1.8.65.
Mr. Daluwatte for the defendant-appellant strenuously contendedbefore us both in his oral and written submissions that the plaintiffsaction must fail for two reasons, in the first place, a landlord seekingto avail himself of the provisions of section 22 (2) (bb) of the RentAct must establish that he is the owner of one residential premises,or at least a part of such premises, before the "specified date” asdefined in section 22 (7) of the Rent Act. On the admitted facts,counsel contended that the plaintiff was not the owner of any resi-dential premises or even a part of such premises before the "specifieddate". The second reason urged by counsel is that the plaintiff acquiredownership of the premises after the "specified date" and accordinglythe statutory bar enacted by section 22 (7) applies.
The material part of section 22 (2) (bb) (ii) and of section 22 (7)reads thus:
"22 (2) Notwithstanding anything in any other law, no action orproceedings for the ejectment of the tenant of-
any residential premises the standard rent (determined undersection 4) of which for a month exceeds one hundredrupees; or
shall be instituted in or entertained by any court, unless where-
44Sri Lanka Law Reports(1998) 2 Sri LR.
(bb) in the case of premises let to a tenant, whether before orafter the date of commencement of this Act, and where thelandlord is the owner of not more than one residentialpremises-
(ii) the landlord of such premises has deposited prior to theinstitution of such action or proceedings a sum equivalentto five years rent with the Commissioner for National Housingfor payment to the tenant;
22 (7) Notwithstanding anything in the peceding provisions of thissection, no action or proceedings for the ejectment of thetenant of any premises referred to in subsection (1) orsubsection (2) (i) shall be instituted-
where the landlord is the owner of not more than oneresidential premises on the ground that-
(ii) the landlord of such premises has deposited prior to theinstitution of such action or proceedings a sum equivalentto five years' rent with the Commissioner for National Housingfor payment to the tenant,
Where the ownership of such premises was acquired by thelandlord, on a date subsequent to the specified date, bypurchase or by inheritance or gift other than inheritance or giftfrom a parent or spouse who had acquired ownership of suchpremises on a date prior to the specified date:
Jiffry v. Esufali (G. P. S. De Silva, C.J.)
In this subsection, "specified date" means the date on which thetenant for the time being of the premises, or the tenant upon whosedeath the tenant for the time being succeeded to the tenancy undersection 36 of this Act or section 18 of the Rent Restriction Act(No. 29 of 1948), came into occupation of the premises".
On the question whether the ownership of one house (or at leasta part of a house) is an essential ingredient of the cause of action,Mr. Marleen for the plaintiff-respondent relevantly cited the case ofM. I. Aboobakar v. Jeenath Sulaiha Sulaiman <’> wherein Dheeraratne,J. expressed himself in the following terms:
"The second point raised on behalf of the appellant was thatin order to come under subsection 22 (2) (bb) the plaintiff landlordmust be a one house owner and since the plaintiff was the owneronly of one half of the premises, the action should have necessarilyfailed. The relevant portion of subsection 22 (2) (bb) reads: "inthe case of premises let to a tenant . . . and where the landlordis the owner of not more than one residential pemises". On aplain reading of the relevant part of the subsection it is obviousthat the maximum number of premises that a landlord seeking toavail himself of filing action in terms of that subsection should ownis specified. That is one premises, the landlord may own one ornone at all …"
I have no doubt that this interpretation is correct. What the lawclearly contemplated was that a landlord who owned more than onehouse could not have availed himself of the provisions of section 22
(bb) (ii). It is intended to benefit a category of persons who mayfor convenience be described as "single house owners". This, how-ever, does not mean that the ownership of one house (or a part ofa house) is a condition precedent to the institution of an action inejectment. There is no warrant for placing such a construction, havingregard to the wording of the section. I
I accordingly hold that the plaintiff in the instant case who wasnot the owner of any residential premises prior to the "specified date"was entitled to sue the defendant for ejectment in terms of section22 (2) (bb) (ii). Mr. Daluwatte pointed out that in Aboobakar's case(supra) the plaintiff was the owner of one half share of the premises.This fact makes no difference to the interpretation of the section.
Sri Lanka Law Reports
(1998) 2 Sri LR.
The next submission advanced on behalf of the defendant-appellant was that the plaintiff having acquired ownership of thepremises after the "specified date", the provisions of section 22 (7)of the Rent Act constituted a bar to the institution of the action. Withthis submission, I am afraid, I cannot agree. It seems to me that theprovisions of section 22 (7) were intended to protect a tenant fromeviction by a person who had purchased the premises over the headof the tenant and thus becoming the new landlord. An example wouldbe where A, the owner of a house lets it to B; A thereafter sellsthe house to C who by virtue of the sale becomes the new landlordover the head of the tenant B. Section 22 (7) could apply in sucha situation. In the case before us, however, the position is significantlydifferent. The reason is that the plaintiff was at all material times thelandlord and the defendant was the tenant under the plaintiff. Whatneeds to be stressed is that it was not by virtue of the acquisitionof ownership that the plaintiff became the landlord of the defendant.As far as the defendant was concerned, there was no change of thelandlord by reason of the plaintiff acquiring ownership of the premises.The plaintiff merely consolidated his rights by the subsequent purchaseof the premises. The right to sue the defendant in ejectment hadaccrued to the plaintiff before he became the owner of the premises(vide Aiyathurai v. Shanmugavadivul2>, where the analogous provisionscontained in the proviso to section 27 (1) of the Rent Act wereconsidered).
The Court of Appeal rightly held that: "the plaintiff in the instantcase has acquired ownership of the said premises while being thelandlord of the defendant . . . and … the statutory bar in section22 (7) of the Rent Act would therefore not be applicable to him".
For these reasons, the appeal fails and is dismissed with costsfixed at Rs. 1,000. The judgment of the Court of Appeal is affirmed.However, having regard to the fact that the defendant was inoccupation of the premises since 1965 and the acute shortage ofhousing, I direct writ of ejectment not to issue till 30th September,1999. The plaintiff is entitled to take out writ without notice and tobe placed in possession of the premises in suit after 30th September,1999.
WIJETUNGA, J, – I agree.
GUNASEKERA, J. – I agree.