Idress v Union Bank of Ceylon
OWER SILVAvRANI SARAMCOURT OF APPEALUDALAGAMA, J.
' CA 259/94(F)
D.C.COLOMBO 7873/REJULY 17, 19, 2002
Rent Act, No. 7 of 1972 – Excepted premises – Pradeshiya Saba Act, No. 15of 1987 – Section 221 – Transitional provisions – Intention of legislature tokeep alive the previous provisions – Notice to quit – Proof of Service? -Evidence Ordinance S.114 – Question of fact.
The plaintiff-respondent prayed for the ejection of the defendant-appellant. Itwas averred that, the said premises were excepted premises. The defendant-appellant denied that the premises were excepted premises and claimed pro-tection under the Rent Act.
The District Court held with the plaintiff-respondent.
(i) The subject matter of the suit was originally within the Town Council limitof Dalugama, and are presently within the limits of the KelaniyaPradeshiya Sabha.
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(ii) When the Pradeshiya Sabha Act came into operation in 1987 and whena reference was made to the Town Councils same would necessarily bedeemed to have been a reference to a Pradeshiya Sabha. The fact of thetransistional provision of section 221, include the earlier limits of a TownCouncil – Regulation 3 is applicable and not Regulation 4.
Per Udalagama, J.
‘The intention of the legislature by specifically enacting section 221, wouldhave been to keep alive the previous provisions on the basis that thepremjses were within a Town Council even if it amounted to a legal fiction”On a balance of probability the plaintiff-respondent had adequatelyproved that the defendant-appellant did in fact receive the Notice to quit(S. 114(e) Evidence Ordinance.
APPEAL from the Judgment of the District Court of Colombo.
Cases referred to:
Nathurmal Gran Chand v Makety- 47 NLR 376.
Wijesinghe v The Incorporated Council of Legal Education – 65 NLR 364.
Saverimuthu v Edwin de Silva – 75 NLR 394.
A.K.Premadasa P.C., with T.B.Dillimunifor defendant-appellant
P.A.D. Samarasekera P.C., with Keerthi Gunawardena for plaintiff-respondent.
UDALAGAMA, J.The plaintiff (respondent) in D.C.Colombo case N0.7873/REprayed for the ejection of the defendant (appellant) from the premisesin suit and for recovery of damages and cost of action.
The plaintiff (respondent) vide paragraph 8 of his plaint has averredthat the said premises were business premises with an annual valueof over Rs.1000/- and “excepted premises” in accordance with the pro-visions of the Rent Act, No.7 of 1972. Additionally, vide paragraph 4 ofthe plaint the plaintiff (respondent) also had stated that notice to quitdated 24.01.91 was duly served on the defendant (appellant) notwith-standing which the latter continued in unlawful occupation and claimeddamages as enumerated in paragraph 5 of the plaint.
Silva v Rani Saram
By way of answer the defendant (appellant) while admitting thetenancy specifically denied that the premises, the subject matter ofthe suit, were excepted premises and insisted that regulation 4 of theschedule to the Rent Act referred to above applied and claimed pro-tection under the provisions of the said Act. The defendant (appellant)also denied the fact of due termination of tenancy and moved inter aliafor a dismissal of the action.
At the trial 2 admissions appear to have been recorded where-by the situation of the premises had been admitted to have been with- 20in the limits of the Kelaniya Pradeshiya Sabha and that the defendant(appellant) was a monthly tenant of the plaintiff (respondent). Although12 issues were admittedly raised at the trial, the 2 main issues appearto be, firstly as to whether the premises were excepted premises with-in the meaning of the provisions of the Rent Act referred to above, andsecondly as to whether due notice of termination of the tenancy hadbeen given by the plaintiff (respondent), the landlord, to the defendant(appellant), the tenant.
At the end of the trial subsequent to a consideration of the evi-dence of the plaintiff (respondent), an Officer of the Kelaniya 30Pradeshiya Sabha, another from the Kelaniya Post Office and thedefendant (appellant) and thereafter court having called for written,submissions of both parties, by the impugned judgment of the learnedDistrict Judge dated 13.05.94 the latter pronounced judgment infavour of the plaintiff (respondent) as prayed for.
Aggrieved, the defendant-appellant appeals therefrom.
The learned President’s Counsel appearing for the defendant-appellant before this court reiterated the argument before the courtbelow that the learned District Judge erred in applying the provisionsof regulation 3 of the schedule to the Rent Act to the facts of this case, 40and secondly that the learned District Judge erred in failing to consid-er the non establishment by proof, the proper service of the documentP7, the notice to quit.
It is apparent on a consideration of the evidence of the RevenueInspector Gunasena and the documents P1 and P1A that the premis-es, the subject matter of the suit, was originally within the TownCouncil limits of Dalugama, and that they are presently within the lim-its of the Kelaniya Pradeshiya Sabha. It is also conceded that the
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Town Council ceased to exist from 1981 and that in its place was
established the District Development Council and that in the year1988 the Kelaniya Pradeshiya Sabha was established in place of theDistrict Development Council referred to above.
It is also manifest by the provisions of the Rent Act referred toabove that business premises situated within a Town Council in accor-dance with the provisions of the Town Council Ordinance wereexcepted premises if the annual value of the said premises on01.01.68 exceeded Rs.1000/-. That the premises, the subject matterof this action, was assessed on an annual value exceeding Rs.1000/-is clearly established from the extract of the assessments as filed of
record admittedly pertaining to the aforesaid premises (facinq page238 of the brief)
The contention of the learned President’s Counsel for the appel-lant that in view of the premises being situated within the limits of aPradeshiya Sabha and as a Pradeshiya Sabha is not named in regu-lation 3 referred to above, that accordingly regulation 4 of the sched-ule to the Rent Act ought to apply, is in my view untenable, primarilydue to the express provisions of the Pradeshiya Sabha Act, No. 15 of1987 which unequivocally, when dealing with the transitional arrange-ment necessitated by the enactment of the Act, No. 15 of 1987, in par-ticular provisions of section 221 of the said Act which inter alia pro-vides as follows:-
221 …. a reference to any written law in operation on the dateappointed under section 1 of this Act.
to a Town Councilshall be deemed to be a reference
to a Pradeshiya Sabha”.
The provisions of the Rent Act, No.7 of 1972 would undoubtedlybe included “in any written law in operation” as referred to above.
In the circumstances I would hold the view that the intention ofthe legislature by specifically enacting section 221 aforesaid would
have been to keep alive the previous provisions on the basis that thepremises were within a Town Council even if it amounted to a legal fic-tion.
I am of the view that the Pradeshiya Sabha Act came into forcein the year 1987 and thereafter when a reference was made to Town
Silva v Rani Saram
Councils same would necessarily be deemed to have been a refer-ence to a Pradeshiya Sabha. The fact of the transitional provision ofsection 221 referred to above include the earlier limits of a TownCouncil as for instance the Town Council of Dalugama as referred toin the instant case.
I am also of the considered view that the learned District Judgegave effect to the provisions of section 221 and came to a finding thatthe regulation 3 to the Rent Act referred to above was thereforeapplicable and not regulation 4 as contended to-by the learnedCounsel for the defendant-appellant and that the learned DistrictJudge was correct in coming to that finding.
Accordingly I would not venture to disturb the finding of thelearned District Judge in respect of issues 4 and 5 where he held infavour of the plaintiff-respondent.
The next matter for determination is the question of the receiptby the defendant-appellant of the notice to quit. That the landlord isbound to terminate the tenancy by a valid notice to quit is not denied.In fact such notice to quit is a condition precedent for a successfulaction for ejectment. It is settled law that such notice be addressed tothe party to whom it is due or to any person entitled to receive it onbehalf of that party, Nathurmal Gianchandv MakatyW.
It was' also held in Wijesinghe v The Incorporated Council ofLegal Education (2), that such notice need not be proved if same hadbeen given by an Attorney-at-Law appearing for the plaintiff landlord ifthe authority to represent the latter is not questioned. In the instantcase the Attorney-at-Law admittedly appearing for the plaintiff-respon-dent who took steps to send the notice to quit testified before court asto the usual practice followed by him in dispatching a registered let-ter. He detailed in evidence the procedure to the acquisition of the“pink receipt” which evidence was corroborated by the Post Master.
The submission on behalf of the defendant-appellant was thatthe address on the notice was inadequate, in that same did not con-tain the assessment number. Apart from the fact that the notice to quitwas addressed to the same address as that appeared in the captionto the plaint and as summons had been admittedly served on thesame address, I am of the view that as stated by the learnedPresident’s Counsel for the plaintiff-respondent that it was clear from
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the evidence of the appellant himself, that an assessment number ofthe premises was not needed for letters to be delivered to the premis-es, the subject matter, as the tenanted business premises was admit-tedly well-known, (p. 148 of the brief).
In any event the delivery of a postal article is reasonably estab-lished by the production of the “pink receipt” (P8) referred to aboveand apparently acknowledged by the defendant-appellant himself.Accordingly I am of the view that the learned District Judge was cor-rect in his finding on a balance of probability to issue No. 5 that the 130plaintiff-respondent had adequately proved that the defendant-appel-lant did in fact receive the notice to quit.
I would also venture to reiterate the fact that the provision of sec-tion 114 of the Evidence Ordinance too inter alia provides for theingredients necessary as to the burden of proof in the matter of noticeby registered post and would refer to the illustration to section 114(e)aforesaid whereby the question as to the letter being received couldbe established if it is shown to have been posted and the court is enti-tled to presume the existence of a fact that would have likely hap-pened in the common cause of business.140
In Saverimuttu v Edwin de Silva p) Samerawickrema, J. held thatin determining the question as to whether a notice to quit was givento the defendant by the plaintiff’s Proctor who gave evidence that hesent the notice to quit by registered post and that same was returnedwith the endorsement that the recipient ‘refused’ to accept the letterthat it gave rise to a presumption that the notice to quit was served onthe defendant having regard to section 16 and section 114(e) of theEvidence Ordinance.
In any event the burden of proof as to the delivery of the noticeto quit is a question of fact to be determined on a balance of proba- 150bility and I see no reason to interfere with the finding of fact of thelearned District Judge in respect of the receipt by the defendant-appellant of the notice to quit.
In all the attendant circumstances I would not disturb the judg-ment of the learned District Judge and dismiss this appeal with costs.
WIJERATNE, J. – I agree.
OWER SILVA v. RANI SARAM