Sri Lanka Law Reports
[2003j 2 Sri L.R
COURT OF APPEALFERNANDO , J., ANDEDIRISURIYA, J.
A.NO. 1081/93 (F)
C.KANDY 11508/XJULY 15, 2003
Declaration of tenancy – Acts of spoliation – Dispossession of tenant by land-lord without resorting to legal remedies – Consequences – Spoliatius anteomnia restituendus est.
Ginadasa v Dissanayake (Edirisuriya, J.)
“When people commit acts of spoliation by taking the law into theirhands, they must not be disappoined, if they find that courts of law takea serious view of the conduct."
Before court allows any inquiry into the ultimate rights of parties, theproperty which is the subject of the act of spoliation must be restored tothe person from whom it was taken Irrespective of the question as to whois in law entiled to be in possession of such property.
The general maintenance of law and order is of infinitely greater impor-tance than mere rights of particular individuals to recover possession ofthe property.
APPEAL from the judgment of the District Court of Kandy
Cases referred to:
Grayling v Estate Pretorius – (1947) – 3 SA 514 (pages 516-517)
Changerpillai v Chelliah – 5 NLR 270
Sameem v Dep – 55 NLR 523 at 525
P.P Gunasena for defendant-appelant,
Hemantha Situge for plaintiff-respondent
September 11, 2003
The plaintiff in this case is seeking among other things a dec- 01laration that he is the tenant of the premises in suit and the eject-ment of the defendant therefrom. He has also prayed that certainitems of furniture be handed back to him.
It is common ground that in the year 1963 the aforesaidpremises was given on rent to one D.S. Dissanayake. The plaintiffgiving evidence has said the landlord of the subject matter of theaction is the defendant. He came to the premises in the year 1978when his father D.A. Dissanayake was the tenant. He and his fatherhave paid rent to the defendant in this case. In proof of this fact he 10has produced several receipts. He said he carried on the business
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 2 Sri L.R
of furniture and retail items in this premises. In support of this facthe has produced several bank balance sheets. He said when hisfather died in 1978 he took over the business.
He further said that on 1988-04-06 he kept furniture worthRs.59,220/- in the shop. Thereafter having closed the shop he wenthome. On the following day when he went to the shop he found thatthe defendant had locked the shop by placing two padlocks overthe padlock that he kept.
Thereafter he said he met the defendant who had said he 20would not hand back possession of the premises. He made astatement to the Police on 1988-04-08.
The defendant gave evidence to the following effect; He gavethe premises in suit in Padiyapelella to one D.S. Dissanayake on1.09 who ran a furniture house. D.S.Dissanayake startedanother business in furniture at Hawa Eliya. Thereafter his fatherD.A.Dissanayake and his brother, the plaintiff carried on the furni-ture business. D.S.Dissanayake was the plaintiff’s elder brother. Hesaid he received rent from D.S.Dissanayake his father and hisbrother, the plaintiff. The receipts for rent were issued by him, his 30wife and the brothers. He said in the year 1981 the furniture shopin Padiyapelella was managed by the plaintiff. At that stage he saidthe shop was bankrupt. As a result the boutique was closed down.
He was not paid the rent after 1985 December. He said after1988 there was no business in the premises and since the rent wasalso not paid he sent a letter to D.S.Dissanayake reminding himthat there were arrears of rent. Thereafter D.S.Dissanayake methim and requested him to take over the shop. Accordingly he put apadlock to premises in suit. Thereafter plaintiff had made a com-plaint to the Police. The defendant had told the Police that <10D.S.Dissanayake had handed over the shop to him and till the rentswere settled he did not wish to have any transaction with the plain-tiff.
The plaintiff had attempted to keep some furniture in the shop.He did not allow that to happen. However the plaintiff had kept twochairs in the shop. Thereafter he closed the shop. He said there aresome beds, racks and showcases in the shop. Racks and show-cases were there from the time D.S. Dissanayake came into the
CAGinadasa v Dissanayake (Edirisuriya, J.)211
shop. After D.S.Dissanayake started the business at Hawa Eliyathe plaintiff started a retail business as well in the premises.
D.S.Dissanayake giving evidence said that he did not hand overpossession of the premises to the defendant. It is clear that the plain-tiff was in possession of the premises in suit at the time the defen-dant locked the shop with a padlock. D.S.Dissanayake has deniedhaving handed over possession of the shop to the defendant. Thelearned District Judge having considered the evidence given by bothparties has held that the said D.S.Dissanayake had with the consentof the defendant who was the landlord transferred his tenancy to theplaintiff’s father. He further had that when the plaintiff's father died theplaintiff succeeded to his father's tenancy rights.
In my opinion the question that arises for our determination inthis case is whether the defendant even though he be the trueowner with all rights of ownership vested in him has taken the lawinto his own hands to recover possession. The question whetherthe plaintiff is the tenant of the premises in suit is wholly immateri-al. In the South African case of Greyling v Estate Pretorius, 0)Price, J said at 516 that when people commit acts of spoliation bytaking the law into their hands they must not be disappointed if theyfind that courts of law take a serious view of their conduct. The prin-ciple of law is: Spoliatius ante omnia restituendus est. If this princi-ple means anything, it means that before the court will allow anyenquiry into the ultimate rights of the parties, the property, which isthe subject of the act of spoliation must be restored to the personfrom whom it was taken irrespective of the question as to who is inlaw entitled to be in possession of such property. The reason forthis very drastic and firm rule is plain and obvious. The generalmaintenance of law and order is of infinitely greater importancethan mere rights of particular individuals to recover possession oftheir property. A liberal attitude to the scope of the possessoryaction has been adopted in Sri Lanka. In Changerpillaiv ChelliahWBonser C.J.declared. “The remedy given by such an action is amost beneficial one and it seems to me that the court should notseek to narrow its operation but rather to enlarge it if it can do soconsistently with principle.” This approach was endorsed by Pulle,J (with Swan, J agreeing) in Sameem v Dep <3) at 525.
Sri Lanka Law Reports
[2003) 2 Sri L.R
I am of the view that the defendant in this case has dispos-sessed the plaintiff without resorting to legal remedies. After evalu-ating the evidence the learned District Judge has come to a findingthat the plaintiff is entitled to the items of articles referred to in theplaint. I do not wish to interfere with the finding of the learnedDistrict Judge on this matter.
I am of the view that the aforesaid legal issue enables us togrant the reliefs prayed for in the plaint without deciding the ques-tion as to whether the plaintiff is the tenant or not of the premisesin suit. In the circumstances I dismiss the appeal with costs.
FERNANDO, J. – I agree.Appeal dismissed.
GINADASA v. DISSANAYAKE