COURT OF APPEAL
G. P. S. DE SILVA. J. (PRESIDENT C/A) AND GOONEWARDENA. J.C.A. 560/79 (F).
O.C. COLOMBO 2104/RE.
MARCH 13 AND 14, 1986.
Landlord and Tenant-Sub-letting-S. 10(11 of Rent Act.
Section 10(1) sets out the criteria for determining whether in law there is a letting orsub-letting of a part premises, viz:
The occupant must be in exclusive occupation of the part of the premises inconsideration of the payment of rent.
That part must be a defined and separate part over which the landlord or thetenant (as the case may be) has for the time being relinquished his right ofcontrol.
Where the evidence does not show that the alleged sub-tenant is in exclusiveoccupation of a defined and separate part of the premises or indeed that any personother than the tenant was in physical occupation, the finding that sub-tenancy has beenestablished, cannot stand. ~
Sub-letting prior to .1 st March 1972, cannot ground an action in ejectment.
Cases referred to:
Mrs. Warnakulasinghe v. Subramaniam-S.C. Appeal No. 66/84-D.C. Trincomalee9834. S.C. Minutes of 2.4.1986.
SeyedMohamed v. Meera Pillai— (1967) 70 N.L.R.237..
APPEAL from judgment of the District Court of Colombo.
P. A. D. Samerasekera. P.C., with G. L. Geethananda and M. Illiyas for thedefendant-appellant?
A. A. M. Marleen for the substituted plaintiffs-respondents.
Cur. adv. vult.
G. P. S. DE SILVA, J. (President C/A)
The plaintiff brought this action in October 1-976 to eject thedefendant who was her tenant from premises No. 156. Main Street.Pettah. Ejectment was sought on three grounds
Arrears of rent from 1.1 1.69 to 30.9.76:
That a perso'ri residing or lodging with the defendant wasconvicted of ysing the premises for an illegal purpose;
.That the defendant has sub-let a part of the premises withoutthe prior consent in writing of the plaintiff (landlord), to IsmailMohamed Ibrahim, to S.C.M. Sanoon, besides others whosenames are not known to the plaintiff.
After trial, the District'Judge held against the plaintiff on the issuesof arrears of rent and conviction for using the premises for an illegalpurpose. However, judgment was entered for the ejectment of thedefendant on the ground of sub-letting. Hence this appeal preferred by,the defendant.
The issue relating to sub-letting reads thus-
"Has the defendant sub-let a p.art of the premises in suit aspleaded in column 1 . paragraph 7(c) of the plaint?"
The submission of Mr. Samerasekera. counsel for thedefendant-appellant, was that there was no evidence to support thefinding of the trial judge on this issue. Counsel contended that theDistrict Judge has altogether failed to address his mind'to therequirements of section 10(1) of the Rent Act No. 7 of 1972.
The only oral evidence in regard to sub-letting was that of Mr.Kariapper, the husband of the plaintiff. He stated that he had visitedthe premises on two occasions, once in 1965 and thereafter in 1975.
In 1975 he had visited the premises along with a police officer. He hadgone upstairs and "found a number of people there". These werebusiness premises and there was no evidence as to what thosepersons were doing upstairs, as to whether they were customers orpersons in residence. Mr. Kariapper further stated "I inquired forSanoon and he was not there. A number of cubicles had been made inthe first floor. The Inspector wanted to see those rooms. But he couldnot, because the key was not available. At that time there was a manwhose name I did not know. He said he was the agent of the
defendant and he is holding the power of attorneyThe
defendant was not there Then I had a look at the certificate
framed. I found a man from Dewalagala, Kandy, running the shop. Hewas also not in the shop. Ismail Mohamed Ibrahim is the man I havereferred to in the plaint. The premises had been sub-let to this man,Sanoon and several others".
This was all the evidence given by Mr. Kariapper in regard to'sub-letting'. He did not find either Sanoon.pr Ibrahim in actualoccupation of the premises. The person whom he found at thepremises was an agent of the defendant, his son-in-law. The person'whose name appeared in the certificate of registration was Ibrahim,but he was not to be seen in the premises. Thus Mr. Kariapper did noteven claim that he saw the persons whom he alleged were thesub-tenants. Nor did Mr. Kariapper see any persons in occupation ofthe. cubicles upstairs.
Section 10(1) of the Rent Act reads thus:-"10(1). For the purposes of this Act, any part of any premisesshall be deemed to have been let or sub-let to any person, if, andonly if, such person is in exclusive occupation, in consideration ofthe payment of rent, of such part, and such part is a defined andseparate part over which the landlord or the tenant, as the case maybe, has for the time being relinquished his right of control; and noperson shall be deemed to be the tenant or the sub-tenant of anypart of any premises by reason solely of the fact that he is permittedto use a room or rooms in such premises".
In Mrs. Warnakulasinghe v. Subramaniam (S.C. Appeal 66/84, D C.Trineomslee 9834,- S..C. Minutes of 2.4.86) the Supreme Court hadoccasion to consider the provisions of section 10(1) of the. Rent Act.
In the course of his judgment Atukorale, J. stated. "Sub-section 1 tosection 10 sets out plainly and explicitly the circumstances underwhich for the purposes of the Act, a part of any premises shall bedeemed to have been let or sub-let to an occupant. It postulates twocriteria for determining whether in law there is a letting or a sub-lettingof a part of premises. They are firstly, that the occupant must be inexclusive occupation of the. part in consideration of the payment ofrent anci7secondly, that the part must be a defined and separate partover which the landlord or the-tenant (as the case may be) has for the
time being relinquished his right of control.In my view, the
evidence of Mr. Kariapper does not show that Ibrahim or any otherperson was in exclusive occupation of a defined and separate part ofthe premises. Indeed there is no evidence of the physical occupationof the premises by any person other than the defendant. I,thereforehold that the finding of .the District Judge that Ibrahim was asub-tenant of the defendant.cannot stand.
Apart from the evidence of Mr. Kariapper, Mr. Marleen, counsel forthe.plaintiff-respondent, relied on the plaint .in case No. 627/22 of theDistrict Court of Colombo marked,P9 and. the.evidence of Bawa,..thehusband of the plaintiff, in "that-case, marked P10. A perusal of. P9shows that it.was an action for ejectment filed bn .12th May 1967 byHaniffa Hussain, wife of Bawa. carrying.on business under the name ofMessrs Hussain Ibrahim and Sons. The premises were 'the upstairportion' of the premises which are the subject-matter of the presentaction. Bawa who gave evidence (PI 0) is the father of the defendantand is the only witness for the defendant in the present action. Ona consideration of P9 and P10 the trial Judge, concluded
that"..'Hussain Ibrahim the defendant in this case has sub-let
the premises to Hasheem AbdufCareem and Hasheem Abdul Careem
has sub-let the premises' to various other people It is quite
clear from P9 and P10 that the defendant has been sub-letting thepremises from 1967 and a portion of these premises, has beenoccupied not by sub-tenants but by tenants of the sub-tenants"..
It seems to me, however, that this finding of sub-letting based on P9and P10 overlooks the provisions of sub-section 7 of section 10 of theRent Act which enacts that 'sub-letting' prior to 1st March, 1972,cannot ground an action in ejectment. As stated earlier. P9 was anaction filed as far back as May, 1967, that is almost 5 years prior tothe enactment of the Rent Act No. 7 of 1972. Moreover, the DistrictJudge failed to consider or even answer issue No. 21 based onsection 10(7) of the Rent Act raised on behalf of the defendant.
Mr. Marleen placed great reliance on the judgment ofSamerawickrema, J. in Seyed Mohamed v. Meera Pillai (2). That wasa case where the evidence disclosed that this sub-tenant "was in soleand exclusive occupation of a room and that he carried on business inthat room. In the absence of acceptable evidence to explain hisoccupation, the only inference is that he is in occupation as asykfcLenaot of the defendant and on payment of rent to him". In thecase before us, there is no evidence of the actual physical occupationof the premises (or part thereof) by any person other than the tenant.Seyed Mohamed’s case (supra) is therefore of no assistance to theplaintiff-respondent.
Finally, Mr. Marleen urged that though the case for the defendantwas that he along with others were carrying on business in partnershipwith the assistance of persons in occupation of the premises, thepartnership agreement was not produced but what was in factproduced as D85 was the "dissolution of the partnership". In thecircumstances Mr. Marleen maintained that the District Judge rightlydrew an adverse inference from the"failure of the defendant toproduce the partnership agreement. But the point is. as submitted byMr. Same'rdsekera, the plaintiff must first establish the fact ofexclusive occupation by the alibied sub-tenant and it is only thereafterthat the court has to consider the character of such occupation, that• is, as a sub-tenant or as'a licensee or in some other capacity. It is atthe-'stage when the court considers the capacity in which the occupieris on'the-premises, that the terms of the partnership agreement arerelevant: But in the instant case the initial fact of exclusive occupationby the alleged ’subtenant was not established. Hence there was nooccasion to draw an adverse inference from the failure to produce thepartnership agreement.
Thus it is se'en that Mr. Samerasekera's-submission that there is no-evidence to sbpport the finding of 'subJetting' is entitled to succeed.Accordingly, the. appeal is allowed and the action is dismissed withcosts. The defendant-appellant is entitled to costs of appeal fixed atRs. 210.
GOONEWARDENA, J.-.I agreeAppeal allowed.