Sri Lanka Law Reports
[20031 2 Sri L.R
COURT OF APPEALUDALAGAMA, J. ANDWIJAYARATNE, J.
DC MT. LAVINIA NO. 2976/RE19TH JUNE, 2002
Rent Act, No. 7 of 1972 – Excepted premises – Unreliability of evidence led -Decision of Rent Board – Does it bind court ? – Res judicata – Prima facieproof of fact – No appeal from Rent Board – Estoppel.
The plaintiff-respondent instituted action seeking to eject the defendant-appel-lant; it was also averred that the premises was excepted premises. The defen-dant appellant whilst admitting tenancy denied that the premises was except-ed premises.
Although the decision of the Rent Board – not being a court ofcompetent jurisdiction – could not operate as res judicata thetrial Judge is not precluded from considering the decision of theBoard pertaining to the authorised rent to enable the latter todecide a question as to whether the premises are excepted ornot.
Failure to appeal against the order of the Rent Board leads tothe obvious implication that the defendant-appellant accepts thedecision of the Board.
The evaluation of the Rent Board necessarily stands as primafacie proof of the fact, that the premises is excepted premises.The defendant-appellant is estopped from contesting the deci-sion of the Board.
APPEAL from the judgment of the District Court of Mt. Lavinia.
C.C. Fernando v. Seneviratne (Udalagama, J.)
Ranasinghe v Fernando – 53 NLR 163
Ranasinghe v JayatUake – 72 NLR 727
Rohan Sahabandu for appellant.
Harsha Soza for respondent.
August 20, 2002UDALAGAMA, J.
The plaintiff (respondent) instituted D.C. Mt. Lavinia case No.2976/RE praying inter alia that the defendant (appellant) be eject-ed from the premises morefully described in the schedule to theplaint and damages.
The plaintiff (respondent) by his plaint also averred that thesaid premises, the subject matter, was excepted premises not gov-erned by the provisions of the Rent Act, No. 7 of 1972.
The defendant (appellant) by his answer in response to theaverments in the plaint while admitting the tenancy under the plain-tiff (respondent) specifically denied that the premises, the subjectmatter of this action, was excepted premises and insisted that thedefendant (appellant) was protected under the provisions of theRent Act referred to above as a monthly tenant.
At the trial in the court below parties admitted that the rentpayable was Rs. 400/- per month, that the premises were businesspremises and the receipt of the notice to quit. Four issues weresuggested by the plaintiff (respondent) while the defendant (appel-lant) also suggested four issues, but later abandoned the last two.
The following witness, H. Somasiri, the Secretary to the RentBoard of Maharagama, and Balakrishnan, an Assistant Valuer ofthe Valuation Department including the plaintiff (respondent) testi-fied on behalf of the respondent and significantly no evidenceincluding that of the defendant (appellant) was led on behalf of thedefendant (appellant) at the trial.
Sri Lanka Law Reports
 2 Sri L.R
Subsequent to the tendering of written submissions of bothparties the learned District Judge by his judgment dated 28.07.93entered judgment in favour of the plaintiff (respondent) with dam-ages and costs.
The defendant (appellant) appeals therefrom.
When this appeal was taken up for argument before this 30court the learned Counsel for the appellant restricted his argumentto the matter of the acceptance of the evidence in particular that ofthe Secretary to the Rent Board on which basis the learned DistrictJudge appears to have come to a finding that the premises, thesubject matter of this action, was in fact excepted premises andthat the tenant was thereby precluded from claiming protectionunder the provisions of the Rent Act referred to above.
A further submission by the learned Counsel for the appellantalso appears to be the unreliability of evidence led at the trial of thewitness from the Valuation Department whose evidence as stated 40by learned Counsel for the appellant were unacceptable as sameconsisted of material emanating from the notes made by another. Itwas the submission of the learned Counsel for the appellant thatassessments based on such hearsay evidence ought to have beenrejected. The learned Counsel also moved that this case be remit-ted back to the original court to clearly assess the annual value.
The crux of the argument of the learned Counsel for theappellant was that due to the acceptance of an unacceptableassessment based on the evidence of the witness who testified onbehalf of the Rent Board to the effect, that the premises, the sub- 50ject matter of this action, was excepted premises cannot stand.
It was also the submission of the learned Counsel for theappellant that the decision of the Rent Board in any event would notbind this court. Learned Counsel for the appellant sought to but-tress his argument that the decision of the Rent Board would notbind court as stated above by citing the decisions of Ranasinghe v.Fernando 531, Ranasinghe v Jayatilaka 2.
CAC.C. Fernando v. Seneviratne (Udalagama, J.)113
It is my view that although the decision of the Rent Board, notbeing a court of competent jurisdiction would not operate as resjudicata, the trial Judge is not precluded from considering the deci-sion of the Rent Board pertaining to the authorized rent to enablethe latter to decide a question as to whether the premises areexcepted or not.
I would also hold that as in the instant case, the decision ofthe Rent Board in relation to the authorized rent would apart frombeing relevant would also in no uncertain terms assist the court todecide whether the premises concerned was excepted or not.
As correctly held by the learned District Judge the fact thatthe defendant-appellant failed to appeal against the assessment ofthe Rent Board led to the obvious implication that the defendant-appellant too accepted the decision of the Rent Board.
I would further venture to hold that in the circumstances, thedefendant-appellant is now estopped from contesting the decisionof the Rent Board referred to above. In any event the evaluation ofthe Rent Board necessarily stands as prima facie proof of the factthat the premises is excepted premises and that the defendant-appellant is precluded from claiming the contrary in the absence ofevidence. As stated earlier the defendant-appellant failed to testifynor did he lead other evidence to contradict the aforesaid primafacie proof as to the premises being excepted premises which bur-den I would hold clearly shifted to the defendant-appellant on theestablishment of prima facie evidence as stated above.
In the attendant circumstances considering importantly theadmissions recorded, I would hold that the impugned judgment isin accordance with the weight of the evidence and the law and Iwould hold as correct the prima facie finding of the learned DistrictJudge on the valuation based on the unchallenged reasoning of theRent Board, which institution is in itself a creation of the statute,itself.
For the reasons stated above, I would dismiss this appealwith costs.
WIJEYERATNE, J. – I agree.
C. .C. FERNANDO v. SENEVIRATNE