007-SLLR-SLLR-1986-V-2-ROSHAN-PEIRIS-v.-EDIRISINGHE.pdf
ROSHAN PEIRISv.
EDIRISINGHE
SUPREME COURT.
SHARVANANDA. C.J.. ATUKORALE. J. AND H. A. G. DE SILVA. J.
S.C. APPEAL No. 20/85.•
A. APPEAL No. 182/80(F).
C. COLOMBO No. 31 39RE.
FEBRUARY 25. 1986.
Landlord and Tenant-Suit for ejectment on grounds of reasonable. requirement-Premises comprising two lots (Lot 1 and-Lot 2)-Landlady at'conclusionof trial limiting relief claimed to Lot 2-Is there then an alteration of scope of- action?-S. 22(1) (bb) of Rent Act'No. 7 of 1972 as amended by Rent (Amendment)Law No. 10 of 1977-Ss. 34 and 207 of Civil Peocedure Code.
RP sued her tenant PE to whom she had let premises.comprising two lots (Lot 1:annexe, lavatories; Lot 2: main house and kitchen) on the ground that she reasonablyrequired them for her own occupation after giving six months' notice-the standard rentbeing less than Rs. 100 and the rent paid being Rs. 102/60 per month. A copy of thenotice was sent to the Commissioner of National Housing.
At the conclusion of the recording of evidence at the trial RP's counsel submitted tocourt he was limiting the relief sought to ejectment of the tenant only from Lot 2. TheDistrict Judge in answering the issue of reasonable requirement held that Lot 2 isreasonably required by RP and the members of her family for occupation as a residenceand ordered that writ was not to issue until the Commissioner of National Housingintimated to court that alternate accommodation was available to PE who howeverappealed from the judgment.
RP moved for writ of execution and at the inquiry agreed to hand over possession of Lot2 on or before 1.1.1985 without prejudice to his appeal. Prior to 1.1.1985 (on14.1 2.1984) the Court of Appeal taking the view that by limiting the relief claimed toLot 2 the plaintiff had altered the scope of her action, set aside the judgment of theDistrict Court and sent the case back for fresh trial. On an appeal being preferred to theSupreme Court-
Held-
There was here only a single contract of tenancy in respect of one premisesconsisting of Lots 1 and 2.
After termination of the tenancy by notice the landlady was entitled to sue hertenant in ejectment from the entirety of the premises and recover possession thereofbut there is no rule of law which obliges the landlady to ask for and obtain an order ofejectment of the tenant from the whole of the premises. Sections 34 and 207 of theCivil Procedure Code envisage a situation where it is open to the landlady to restrict theclaim for ejectment to a portion of the premises. By this the-court was not being invitedto decide the issue of reasonable requirement on the basis that a portion and not theentire premises was reasonably required. The basic issue is whether the premises in suit(Lots 1 and 2 ) are reasonably required for the occupation of RP and her children but thecourt is not inhibited from entering the decree of ejectment for only a portion (Lot 2).
The facts show that the issue of reasonable requirement both on the basis offinancial considerations and family requirements had to be and was rightly answered infavour of RP the plaintiff. Further eviction was not being sought from the annexeoccupied by PE and writ would issue only upon the Commissioner of National Housingfinding alternate accommodation. The law precludes the tenant from canvassing theadequacy or suitability of the alternate accommodation provided by the Commisioner.
APPEAL from judgment of the Court of Appeal.
H. L. de Silva. P.C. with S. Mahenthiran lor the appellant.
P. A. D – Samarasekera, P C. with Gamini Jayasinghe and G. L. Geethananda for therespondent.
Cur. adv. vuH.
April 3. 1986. -_ ATUKORALE, J.
The appellant is the landlord and the respondent the tenant ofresidential premises bearing assessment No. 11,19th Lane, Colombo7, to which the provisions of the Rent Act No. 7 of 1972 apply. Thepremises consist of a main house, a detached kitchen, an annexe (alsodetached) from the main house and two lavatories together with-theland appurtenant thereto. It is depicted as Lots 1 and 2 in plan P3 andis of the extent of 27.40 perches. According to the plan the mainhouse and the kitchen fall within Lot 2 whilst .the annexe and thelavatories fall within Lot 1. There is nothing physical on the ground todemarcate the common boundary between Lots 1 and 2. The mainhouse contains two bedrooms, a sitting room, a verandah and abathroom but no lavatory. The annexe contains one bedroom and asmall room. The standard rent of the premises does not q^ceed Rs.100 per month, the actual rent paid by the respondent to theappellant being Rs. 102/60 a month.
The appellant gave the respondent 6 months' notice to quit thepremises on the ground that she requried the same for her ownoccupation. A copy of this notice was sent Jo the Commissioner ofNational Housing. The respondent was required to vacate thepremises on or before 30.6.1 978. He failed to do so. On
the appellant filed the present action in the District Courtto have the respondent ejected from the premises. In the plaint shepleaded, inter alia, that she reasonably required the premises for herown and her family's occupation as a residence in terms ofs. 22 (1 ){bb) of the Rent Act as amended by the Rent (Amendment)Law, No..10 of 1977. If she succeeded in establishing this ground tothe satisfaction of court she was entitled to a decree for ejectment ofthe respondent from the premises as prayed for by her in her prayer tothe plaint. I stress these words for the reason that although she wasentitled to an order of ejectment of the respondent from the entirety ofthe premises, there is, in my view, no legal impediment to limiting herclaim for ejectment to a portion of the premises. However no writ ofexecution of the decree could be issued by the court until after the,Commissioner of National Housing had notified court that he was ableto provide alternate accommodation to the respondent-s. 22 (1C) ofthe Rent Act as amended.
The respondent in his answer denied the various averments set outin the plaint. At the trial only two issues were raised, both on behalf ofthe appellant
Are the premises in suit reasonably required for occupation as aresidence for the plaintiff (the appellant) and the members of herfamily?
If issue 1 is answered in the affirmative, is the plaintiff (theappellant) entitled to a decree for ejectment?
The appellant and the respondent gave evidence but called nowitnesses. At the conclusion of the evidence learned counselappearing for the appellant in the trial court stated to court that theappellant was seeking ejectment of the respondent from Lot 2. In thecourse of his judgment the trial judge answered the issues in thefollowing manner
Lot 2 in extent 13.50 perches depicted in plan P3 is reasonablyrequired for occupation as a residence for the appellant and themembers of her family.
Yes.
Upon this basis he entered judgment in ejectment of the respondentfrom Lot 2 "which is a portion of assessment No. 1 1. 19th Lane.Kollupitiya" and for damages in a sum of Rs. 102/60 cts. from1.1.1980 until vacant possession was given. He directed that writwas not to issue until the Commissioner of National Housing intimatedto court that alternate accommodation was available to therespondent.
/
The respondent appealed therefrom to the Court of Appeal. Pendingthe appeal, an application was made by the appellant to execute thedecree after the Commissioner of National Housing notified theDistrict Court that he was able to provide alternate accommodation tothe respondent. At the inquiry into this application the respondentagreed to hand over possession of Lot 2 on or before 1.1.1985without, of course, prejudice to his rights in appeal. Prior to that date,however, on 14.12.1 984 the Court of Appeal after hearing the appealwhich was accelerated at the instance of the respondent made orderallowing the appeal, setting aside the judgment of the District Judgeand remitting the case to the District Court for a fresh trial. The Courtof Appeal seems to have taken the view that the statement made bylearned counsellor the appellant in the trial court at the conclusion ofthe evidence showed that the appellant was "limiting the scope of theaction to one lot involved, that is Lot 2 in premises No. 11The Courtheld that the intimation to court by learned counsel appearing for theappellant that she was seeking ejectment of the respondent only fromLot 2 was belated and would have resulted in prejudice to therespondent in his defence. In remitting the case to the District Courtfor a fresh trial the Court commented that at the new trial one issue,amongst others, could be in regard to the question of the reasonablerequirement of Lot 2 for the' occupation of the appellant and themembers of her family, subject to whatever defences the respondentmay take thereto. The Court, in conclusion desisted from making anorder for costs against the appellant "as the learned Judge hasaccepted that the reasonable requirement of the plaintiff (theappellant) and her family for the occupation of the premises is greaterthan that of the defendant (the respondent) and as the plaintiff hasshown that great hardship is caused to her by paying a high rent to aflat in which she lives while having her own premises which she is. unable to-get from the defendant". From the judgment of the Court ofAppeal the appellant has appealed to this court.
It is clear that in the instant case there was a single contract oftenancy in respect of one premises consisting of lots 1 and 2. Underthe common law a monthly tenancy could be terminated upon amonth's notice. If on the expiration of the period of the notice thetenant failed to vacate the premises, the subject matter of thetenancy, the landlord is entitled to sue the tenant in ejectment fromthe premises, i.e. the entirety of the premises let to the tenant, and torecover possession thereof. But there is, in my view, no rule of laweither under the common law or under our substantive or procedurallaw which obliges the landlord to ask for and obtain an order ofejectment of the tenant from the whole of the premises. S. 34 and theexplanation to s.207 of our Civil Procedure Code seems to militateagainst such a contention. It is open to the landlord in such a case torestrict his claim for ejectment to a portion of the premises. NorJsthere anything in s.22 of the Rent Act as amended which isinconsistent with this legal position. That section forbids the institutionof and takes away the jurisdiction of the court to entertain an action forthe ejectment of a tenant of a certain class of premises to which theAct applies except upon certain grounds specified therein. Once thelandlord establishes the existence of any of those grounds he isentitled to a decree of ejectment of the tenant from the premises. But
it does not affect or curb the right of the landlord to ask for and obtainfrom court a decree of ejectment not from the whole but from aportion of the premises let to the tenant. Whatever the consequencesof restricting his claim for ejectment may be to the landlord, the courtis not inhibited from entering a decree for a portion of the premises asprayed for by the landlord.
The statement made by counsel for the appellant in the trial courtafter the conclusion of the evidence is that the appellant is seeking theejectment of the respondent from Lot 2. On the face of the statementit would appear that the appellant was inviting the court, in answeringthe consequential issue No. 2, to restrict the order of ejectment to LotNo. 2. Prima facie there is nothing in that statement to indicate thatthe appellant was asking the court to decide the main issue (No. 1)upon the basis that Lot 2 and not the entire premises was reasonablyrequired for her and her family's occupation as a residence. Theanswer given by the learned District Judge to issue No. 1 suggeststhat he construed the statement of learned counsel to mean that theappellant was confining the issue of reasonable requirement to Lot 2alone. The Court of Appeal also appears to have placed the sameconstruction on learned counsel's statement. In my view thisconstruction is unreasonable and unwarranted. I hold that there hasbeen no change in the scope of the action as constituted.
The basic issue in this case is whether the premises in suit (bothLots 1 and 2) is reasonably required for the occupation of the-appellant and her children. As all the material necessary for adetermination of this issue are before us I will proceed to consider thesubmission of learned counsel for the appellant that the appellant hasestablished that her need of the premises (Lots 1 and 2) is muchgreater and more urgent than that of the respondent. On this point thelearned District Judge seems to have had no hesitation in acceptingthe evidence of the appellant and has come to a strong finding in herfavour. The Court of Appeal too has expressed the opinion that thepremises are reasonably required for the occupation of the appellantand her family. There, are thus concurrent findings of fact in favour ofthe appellant. There is, in my view, ample evidence to support thesefindings of fact. The appellant is a divorcee with two dependentchildren. She is employed as a journalist and draws, a salary of Rs.1,100 per month. She also gets from her husband a sum of Rs. 250as maintenance for the two children, one of whom on enrolment as anAttorney-at-Law will cease to get any maintenance. She is notpossessed of any other income. She pays a sum of Rs. 500 a monthas rent for the flat she occupies with her children. She receives fromthe respondent a sum of Rs. 102.60cts.asrent for thepremisesin suit.With the costs of living going up she manages with great difficulty.Sometimes she has to borrow money from her employer. She statesthat her position is desperate. This sums up her financial plight. Therespondent is a government pensioner drawing about Rs. 600 amonth as pension. He has 4 grown-up children between 20 to 27years of age. One is learning work and the other three are employed.The aggregate monthly income of the respondent and his children isabout Rs. 2,422. He pays a rent of Rs. 102.60 cts. to the appellant.Financially the respondent and the members of his family do notappear to be in want. The other relevant factor pertaining to this issueis the one relating to alternate accommodation for the respondent.The Rent (Amendment) Law, No. 10 of 1977, was enacted to assistlandlords who are owners of one residential premises to recoverpossession of same. According to the scheme of this amendinglegislation once a decree is entered by the District Court for theejectment of the tenant on the ground of reasonable requirement interms of s. 22(1) (£>£>), the decree remains unexecutable until after theCommissioner of National Housing notifies to court of his ability toprovide the tenant with alternate accommodation. The tenant is thusassured of alternate accommodation before the execution of thedecree. Moreover in the instant case the respondent vis-a-vis theappellant could continue in occupation of the annexe as the order forejectment is confined to Lot 2 only. It has also to be noted that the lawprecludes the tenant from canvassing the adequacy or suitability of thealternate accommodation provided by the Commissioner. There isthus sufficient evidence to support the concurrent findings by theDistrict Court and the Court of Appeal on the first issue relating toreasonable requirement. For the above reasons issue No. 1 isanswered, in the affirmative. Issue No. 2 is also answered in theaffirmative in so far as Lot 2 in plan P3 is concerned so that theappellant will be entitled to an order of ejectment of the respondentand those holding under him from Lot 2. She will, however, not beentitled to an order of ejectment in respect of Lot 1. The appellant willalso be entitled to damages at the rate of Rs. 102.60 cts. per monthfrom 1.1.1980 until she is placed in possession of Lot 2. It is alsodirected that no person other than the appellant or her two children^(whose names will be specified- by the District Judge in the decree)shall enter into occupation of Lot 2 upon the vacation thereof by the
respondent or upon his ejectment therefrom-vide s. 22(3) of the RentAct as amended by the Rent (Amendment) Act. No. 55 of 1980. Writof ejectment from Lot 2 will not issue till 5.6.1986. It will issue on orat any time after 6.6.1986. The learned District Judge is directed toenter decree in the above terms. The appeal is therefore allowed andthe judgments of the Court of Appeal and the District Court are setaside. The respondent will pay the appellant a sum of Rs. 525 ascosts of this appeal. The case is now remitted to the District Court fordecree to be entered in terms of this judgment.
SHARVANANDA, C.J. – I agree.
H. A. G. DE SILVA, J. – I agree.
Appeal allowed.