Sri Lanka Law Reports
 3 Sri LR.
v.PATHUMA BEEBEE AND OTHERS
COURT OF APPEALWEERASURIYA, J..
A. NO. 909/92 (F)
C. KANDY NO. 14048/LAPRIL 29TH, 1998JUNE 30TH, 1998
Rei Vindicatio Action – House set on fire – Is there a valid contract of tenancyif subject matter is completely destroyed – Relief of specific performance – S.145 (1) Evidence Ordinance.
The plaintiff-appellant instituted action seeking a declarartion of title to the landand ejectment of the defendant-respondents therefrom. The District Judge heldthat the plaintiff-appellant had set fire to the house in question and observingthat the house that was burnt down was renovated subject to an order madeby the Rent Board which was based on the premise that there existed a buildingwhich could be repaired, dismissed the action of the plaintiff-appellant; on appeal.
Where a building which is the subject matter is burnt down without thefault of the landlord or tenant, the contract is at an end.
The trial Judge on a preponderance of evidence led came to a findingthat the plaintiff-appellant had set fire to the house. This is a finding ofprimary fact by a trial Judge who had seen and heard the witness basedupon the credibility of such witness, which is entitled to great weight andutmost consideration.
The order of the Rent Board was based on the premise that there existeda building which could be repaired.
In the case of a house being let if that is completely burnt, the leasecomes to an end, but not where the tenant is able to exercise, many ofhis rights under the lease notwithstanding the complete destruction of thebuildings.
APPEAL from the District Court of Kandy.
Tikiri Banda v. Pathuma Beebee and others (Weerasuriya, J.)47
Cases referred to:
De Silva v. Seneviratne – 1981 2 SLR 7.
Giffry v. De Silva – 69 NLR 81.
Bayley v. Harwood – 1954 (3) 498 AD.
Weinberg v. Weinberg Pvt Ltd., 1951 (3) SA 272 (U).
Rohan Sahabandu with P. Y. D. Jayasekera for plaintiff-appellant.
N. R. M. Daluwatta, PC, with Murshid Maharoof for defendant-respondents.
Cur. adv. vult.
August 17, 1998.
The plaintiff-appellant by plaint dated 16.01.1984, instituted action inthe District Court of Kandy against the defendant-respondents seekinga declaration of title to the land described in the schedule to the plaint,ejectment of the defendant-respondents therefrom and damages. Thedefendant-respondents in their answer sought a dismissal of action.The case proceeded to trial on 20 issues and the learned District Judgeby his judgment dated 02.10.1992 dismissed the action of the plaintiffwith costs. It is from the aforesaid judgment that this appeal has beenlodged.
The case of the plaintiff-appellant was presented at the hearingof this appeal on the following grounds:
that the trial Judge had erred in holding that the plaintiff-appellanthad set fire to the house and that the house was subsequentlyrenovated;
that the trial Judge had erred in holding that there was a validcontract of tenancy subsisting; and
that in any event the defendant-respondents are not entitled tothe relief of specific performance in a contract of letting andhiring, where the subject matter is completely destroyed.
Sri Lanka Law Reports
[1998} 3 Sri LR
Learned counsel for the plaintiff-appellant contended that the trialJudge had failed to analyse the evidence in proper perspective. Hedrew our attention to the evidence of Pathirana who was a neighbourof defendant-respondents with regard to his inability to testify as tothe person who set fire to the house. Pathirana in his evidence hadstated that he witnessed the house being burnt but however, he wasunable to identify the person who set fire.
Learned counsel for the plaintiff-appellant dealt with the evidenceof the 1st defendant-respondent in the light of a statement she hadmade to the police which was produced at the trial marked D9. Inthis statement the 1st defendant-respondent had referred to a personcalled Dissanayake, the father of Saliya as the person who had afirebrand in his hand. It would appear that in D9, although a personcalled Dissanayake was described as the father of Saliya who hada firebrand, the subsequent narration reveal, that he was the personwho had bought the property in suit and who had asked them to leavethe house and against whom an application was pending in the RentBoard. That description could be a factor to identify the person inaddition to having been referred to as Dissanayake. It would be ofinterest to note that the full name of the plaintiff-appellant wasDissanayake Mudiyanselage Tikiri Banda as evidenced by the descrip-tion given at the time he gave evidence. Further, the document markedD7 which was an application to the Rent Board of Kandy referredto a person called Saliya Bandara as a co-respondent.
Further, attention of the witness was not drawn to this portion ofthe statement to enable her to explain the discrepancy. It is to benoted that section 145 (1) of the Evidence Ordinance requires thatattention of a witness must be drawn to any portion of a statementwhich is inconsistent, to enable the witness to explain the inconsistencybefore such portion could be produced as a contradiction. It isregrettable that this procedure was not followed when PathumaBeebe gave evidence in the District Court.
Learned counsel stressed that plaintiff-appellant was not prosecutedfor causing mischief by setting fire to the house occupied by thedefendant-respondents. He argued that non-prosecution could meanthat the authorities considered the complaint made by the 1st defend-ant-respondent as false. Admittedly, there was no material elicited tosuggest that the police had treated the complaint of 1st defendant-
Tikiri Banda v. Pathuma Beebee and others (Weerasuriya, J.)49
respondent as false. The failure on the part of the authorities toprosecute the plaintiff-appellant cannot be treated as a vital factorconsidering the background of violence against an ethnic group, incoming to a conclusion about the truth or otherwise of the complaint.
The learned trial Judge on a preponderance of evidence had cometo a finding that the plaintiff-appellant had set fire to the house. Thisis a finding of primary fact by a trial Judge who had seen and heardthe witness based upon the credibility of such witness, which is entitledto great weight and utmost consideration Vide De Silva v. Seneviratn&'K
The trial Judge had come to a finding that the house that wasburnt down was renovated by the defendant-respondents subsequentto an order made by the Rent Board. Learned counsel for the plaintiff-appellant sought to challenge the findings of the District Judge onthe basis that he had failed to evaluate the evidence in the properperspective. In the 8th column of the application to the Rent Boardmarked D2, requiring the nature of relief sought, Sultan had referredto reconstruction of the house (P4). Further, there was a referenceto a statement in D9 that the walls of the house had been pulleddown on the following morning. Pathirana had testified that the housewas burnt and there were cracks on the walls. However, Grama SevaNiladari of the area, Seneviratne Banda who gave evidence on behalfof the plaintiff-appellant had testified that he saw the building whenhe went to inquire on the complaint made by the plaintiff-appellantwithout making any reference to the complete destruction of suchbuilding. There appears to be a contradiction between the evidenceof 1 st defendant-respondent and her statement to the police. However,attention of witness was not drawn to the portion of the statementin respect of pulling down of walls before it was sought to be markedas a contradiction. It would thus appear that on the evidence of GramaSeva Niladari no substantial damage had been caused to the wallsas a result of the fire. However, the disclosure that the walls hadbeen pulled down on the following morning did not contain anyreference to a person responsible for such an act. It is also relevantto note that upon an application to the Rent Board an inquiry hadbeen held without the participation of the plaintiff-appellant who hadbeen duly noticed and the Rent Board allowed the application of Sultanto repair the house. The order of the Rent Board was based on thepremise that there existed a building which could be repaired. It is
Sri Lanka Law Reports
 3 Sri LR.
noteworthy that at the trial it was elicited that the roof contained cadjanand zinc sheets and from available material it could be safely inferredthat the building was not a massive structure. The plaintiff-appellanthad failed to lead any expert evidence on the extent and scale ofthe damage caused to the house as a result of the fire.
Having examined the evidence with care, it seems to me that thereis no basis to interfere with the findings of the District Judge.
Wille in Landlord and Tenant in South Africa (4th edition) at page249 states as follows:
“If the subject matter of a lease is completely destroyed, withoutthe fault of either the landlord or the tenant, the lease is at anend,. In such a case the tenant is not liable for rent after thedate of destruction, but only for rent prior to that date; nor is heliable for the damage. The landlord, again is not liable in damagesfor breach of contract.
If, however, the subject matter of the lease is not completelydestroyed, the lease- is not at an end. In the case of a housebeing let, if that is completely burnt, the lease comes to an end,even though the land remains, but not where the tenant is stillable to exercise many of his rights under the lease notwithstandingthe complete destruction of the buildings.
If the destruction of the leased property is due to the defaultor negligence of the tenant, he remains liable for payment of thefull rent for the unexpired period of the lease; he must in addition,pay the actual value of the property destroyed, and the landlordneed not wait until the expiration of the lease before claiming suchdamages".
Wille's Principles of South African Law by J. T. R. Gibson (7thedition) in chapter XXV under contracts in general at page 377contains the following:
"Where performance of the obligation by the debtorbecomes impossible, either physically or legally, after the contractwas made, the debtor is discharged from liability if he was pre-vented from performing his obligation by vis major or casus fortuitusbut not if the impossibility was due to his own fault. For instance,if a house is let and it is destroyed by fire without the fault of
CATikiri Banda v. Pathuma Beebee and others (Weerasuriya, J.)51
the lessee, for example, by lightning, the lease is at an end and
the lessee need pay no further rent; but if the fire is due to the
negligence of the lessee, the lease continues and he remains liable
for rent accruing after the fire".
It is manifest that destruction of the subject matter does not ipsofacto signify the termination of contract of tenancy.
In the case of Giffry v. De Silva/® it was observed that where abuilding which is the subject matter is burnt without the fault of thelandlord or tenant the contract is at an end. The cases of Bayleyv. Harwood® and Weinberg v. Weinberg Brothers Pvt. Ltd.(4) citedby learned counsel for plaintiff-appellant are not cases wherein thefault for the destruction of the subject matter was attributed to thelandlord, and cosequently are not helpful to arrive at a decision inthis case.
Learned counsel for the plaintiff-appellant submitted that in anyevent the relief that a tenant is entitled where destruction of the subjectmatter was due to the fault of the landlord would be an action fordamages and not for a relief of specific performance. Learned counselmade reference to page 977 of Law of Contracts by Prof. Weeramantrywherein the principles governing the grant of specific performancewere discussed.
It is to be noted that specific performance is a discretionary remedy.However, certain principles have been evolved which guide the courtin the exercise of such discretion. It is to be observed that specificperformance will not be granted where the court cannot supervisethe execution of the contract. Further, it is an accepted principle inthis regard that where damages are an adequate remedy specificperformance will not be granted.
It is to be recalled that in the instant case, after an inquiry bythe Rent Board by its order dated 11.10.1983, allowed the applicationof Sultan who was the tenant of this house to repair the damagedbuilding on conditions approved by the Rent Board.
In the circumstances, it seems to me that there is no basis tointerfere with the findings of the District Judge. Therefore, I dismissthis appeal with costs.
JAYAWICKREMA, J. – I agree.Appeal dismissed.
TIKIRI BANDA V PATHUMA BEEBEE AND OTHERS