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COURT OF APPEALDISSANAYAKE, J. ANDSOMAWANSA, J.
A. 803/93 (F)
C. GALLE NO. 267/REFEBRUARY 21,
MARCH 13 ANDAPRIL 4, 2002
Rent Act, No. 7 of 1972, section 28 – Non occupation for a period of over sixmonths – Intention – Occupation by a dependant – Who is a dependant -Burden of proof — Civil Procedure Code, sections 178 and 179 – Evidence de-bene-esse.
Sarny v Hussain (Somawansa, J.)
The plaintiff-appellant instituted action for the ejectment of the tenant, thedefendant-respondent on the ground that he had ceased to occupy the premis-es for a period of over 6 months.
The defendant-respondent contended that on the death of his father, hebecame the tenant, and continued to occupy the premises with his mother, sis-ters and their children, and he being the only bread winner in the family, hadto leave the premises temporarily for employment abroad, and his mother,brother, sisters and their children continued to occupy the premises. Thedefendant-respondent contended that he never intended to vacate.
The trial judge held with the defendant-respondent.
On appeal –
In terms of section 28, the burden of proving that a tenant of any resi-dential premises has ceased to occupy such premises without reason-able cause is on the landlord.
The tenant has to satisfy court that he had good reason not to be inoccupation himself beyond the specified period and not that there wasreasonable cause for the mother, brothers and sisters to be there.
The finding of fact that the defendant-respondent had gone abroad isnot correct.
The defendant-respondent was present in court on 27.4.1992, andthere is evidence that he came back in 1991. It appears that he had nottaken any interest in this case; he has not given a power of attorney toanyone or have his evidence recorded in terms of section 178 – evi-dence de bene esse.
The defendant-respondent has totally failed to establish that he has anabiding interest to keep alive the contract of tenancy he entered intowith the plaintiff-appellant.
APPEAL from the judgment of the District Court of Galle.
Cases referred to:
Jinadasa v Pius (1981) 2 Sri LR 417
Brown v Brash – (1948) 1 All ER 922.
Amarasekera v Gunapala – 73 NLR 469
Sabapathy v Kularatne – 52 NLR 425
Suriya v Board of Trustees of the Maradana Mosque – 59 NLR 309
Fonseka v Gulamhussein – (1981) 1 Sri LR 77
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Cave v Flick – (1954) 2 All ER 441N.S.A. Hassan with S. Hassan for plaintiff-appellant.
Saumya Amerasekera with J. Munaweera for defendant-respondent
May 24, 2002SOMAWANSA, J.
The plaintiff-appellant instituted action No. 267/RE in theDistrict Court of Galle for the ejectment of his tenant, the defendant-respondent on the ground that he had ceased to occupy the resi-dential premises in suit for a period of over 6 months as contem-plated by section 28 of the Rent Act, No. 7 of 1972.
The position taken up by the defendant-respondent was thaton the death of his father in 1985 he became the tenant of thispremises and continued to occupy the premises with his mother,brother, sisters and their children. That he being the only bread win-ner in the family had to leave the premises temporarily for employ-ment in Riyadh in the early part of 1989 in order to support andmaintain his mother, brother, sisters and their children who contin-ued to occupy the premises in suit. It is his contention that he neverintended to cease his occupation of the premises and prayed for adismissal of the action of the plaintiff-appellant.
At the commencement of the trial, it was admitted by the par-ties that the premises in suit is residential premises, bearing No.150 Kong Tree Road, Galle, that the defendant-respondent is thelawful tenant of the premises and the premises are rent controlled.The plaintiff-appellant raised 03 issues while the defendant-respon-dent raised 04 issues. At the conclusion of the trial the learnedDistrict Judge by his judgment dated 30.11.1993 held in favour ofthe defendant-respondent and dismissed the plaintiff-appellant'saction. It is from this judgment that the plaintiff-appellant has lodgedthis appeal.
CASarny v Hussain (Somawansa, J.)169
The main contention of the counsel for the plaintiff-appellanthas been that the mother, brother, sisters and their children do notfall into a category of dependants of the defendant-respondent inview of section 48 of the Rent Act. Therefore occupation of thepremises in suit by them cannot be construed as occupation by oron behalf of the defendant-respondent. I am inclined to take theview that this is not a matter that attracts much importance in viewof the trend of thought in the decided cases which I will deal withshortly.
Section 28 of the Rent Act, No. 7 of 1972 reads as follows:
“(1) Notwithstanding anything in any other provisions of thisAct, where the tenant of any residential premises has ceasedto occupy such premises, without reasonable cause, for acontinuous period of not less than six months, the landlord ofsuch premises shall be entitled in an action instituted in acourt of competent jurisdiction to a decree for the ejectmentof such tenant from such premises.”
In terms of this section the burden of proving that a tenant ofany residential premises has ceased to occupy such premises with-out a reasonable cause for a continuous period of not less than sixmonths is on the landlord of such premises. In the instant case it iscommon ground that the defendant-respondent who is the tenant ofthe residential premises in suit had ceased to occupy the premisesin suit for a period over 6 months prior to the institution of thisaction. This position is admitted by the sister of the defendant-respondent who was the only witness called on behalf of the defen-dant-respondent. So that the only question that remains to beanswered is whether the defendant-respondent ceased to occupythe premises without any reasonable cause shifts on to the defen-dant-respondent. Unfortunately, the defendant-respondent was notavailable to clarify this point. However in his answer the defendant-respondent avers that he has gone abroad temporarily for employ-ment, that his mother, sister and their children occupy the premis-es and that he never intended to cease his occupation. Further heavers that he would return to the island soon. The answer was filedin 1991 August. However till the conclusion of the case on 16.09.93the defendant-respondent was not present in court.
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According to the evidence of Masika Noor Mohamed the solewitness for the defendant-respondent her brother the defendant-respondent went to Saudi Arabia in 1988 and stayed till 1991 inwhich year he returned to the premises in suit. Thereafter inNovember 1992 he went again to Saudi Arabia. While he was herehe attended to this case, gave instructions to the lawyers and onone occasion he was present in court. The all important question iswhether the defendant-respondent has an intention of coming backto these premises or not. To answer this question the defendant-respondent was not available and his sister who was occupying thepremises came forward to give evidence as to what the intention ofthe defendant-respondent was.
As observed by Rodrigo, J. in Jinadasa v Pieris 1 the conceptof a "non-occupying tenant” as explained in Brown v Brash 2 hasdominated judgments in the few local cases in which this pointarose for consideration. In that case the concept was expressed asfollows:
“The absence of the tenant from the premises may be avert-ed if he coupled and clothed his inward intention to use it ashis home with some formal, outward and visual sign such asinstalling a care-taker or representative, be it a relation ornot, with the status of a licencee and with the function of pre-serving these premises for his ultimate homecoming…. Apartfrom authority, in principle, possession in fact (for it is pos-session in fact and and not with possession in law we arehere concerned) requires not merely an ‘animus possidendi’but a ‘corpus possessionis’ viz: some visible state of affairs inwhich the ‘animus possidendi' finds expression.”
In Amarasekera v Gunapata 3, the facts were, the tenant whohad taken the premises for his own residence resided there forthree or four years and thereafter resided elsewhere. The premis-es were used for occupation by his business employee and also fora store and office. Alles, J. applied the concept of “non-occupyingtenant” stated in Brown v Brash (supra) and held with the landlord.According to Rodrigo, J. this was the first time in our courts that ajudgment was entered against a tenant in ejectment for non occu-pation by the tenant personally.
CASamyv Hussain (Somawansa, J.)171
Gratian, J. in Sabapathy v Kularatne 4 and in Suriya v Boardof Trustees of the Maradana Mosque 5 applied the concept ofBrown v Brash (supra) but in the latter case held that the principlesof Brown v Brash (supra) if correctly understood did not penalise atenant who had lawfully sub let the premises.
Sharvananda, J. as he then was took a different view in con-sidering the Rent Act of 1948 as amended and did not apply theconcept of Brown v Brash (supra). However in the recent case ofFonseka v Gulamhussein 6.
“The ejectment of the tenant was sought in terms of s. 28(1)of the Rent Act of 1972 on the ground that the tenant whowas the Managing Director of Savoy Theatres Ltd., has putin as the occupants of the premises rented the employees ofthe Cinema and the tenant is residing elsewhere. The viewwas taken by Weeraratne, J. that the premises are in theoccupation of strangers, the Cinema being a separate legalentity. The premises had been rented by the tenant person-ally for occupation as a residence by him and his family. Inthe result, the tenant was held liable to be ejected on the doc-trine of Brown v Brash.”
In Cave v Flick 7 the premises were occupied by the tenant’sparents and sister. It was held that the tenant forfeited the protec-tion of the Act.
In the instant case what the tenant had to satisfy court wasthat he had good reason not to be in occupation himself beyond thespecified period and not that there was reasonable cause for hismother, brother and sister to be there. Rodrigo, J. observed inJinadasa v Pei ns (supra)
“The reasonable cause contemplated in the section is,among others, such as the house being under major repairsor the tenant has been on vacation or business which hastaken him out of the area. The tenant is given a period ofgrace of six months. He can be absent with or without causefor this period. But if he is away for a longer period he mustgive an explanation that is acceptable. This explanation mustamount to reasonable cause within the meaning of s 28 (1)
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of the Act. It is not possible or desirable to give an exhaustivedefinition of “reasonable cause”. It is defined in the Act to“include a cause sanctioned by the Board”. But the doctrineof “non-occupying tenant” as enunciated in Brown v Brashand followed with reference to s 28(1) of the Act in Fonsekav Gulamhussein excludes occupation of the premises by rel-atives and strangers and business employees of the tenantas reasonable cause for non-occupation. That the tenant hasfound it more convenient to house his relatives or anybodyelse to whom he had obligations is not a reason or causewithin the meaning of the provision to avert eviction. The pro-vision, it is reasonable to assume, was intended by the legis-lature to provide for situations covered by the concept of“non-occupying tenant” that had received judicial considera-tion in courts and for which no provision has been made ear-lier.
Section 28(1) is not directed at the relationship to the tenantof the occupants of the house that he is no longer occupying. Thetenancy is personal. See Skinner v Geary. Therefore the tenantmust occupy the house himself. He can, of course, temporarilykeep anybody else in the house if he is not there but for the solepurpose and function of preserving it for his ultimate home coming.That is the rationale of the judgments in the cases cited abovewhere the tenant has been held liable to be ejected.”
R.E. Megarry in his book The Rent Acts ,5th edition p. 124:
“Temporary absence. The temporary absence of a tenantwho intends to return to live in the premises within a reason-able period will not deprive him of the protection of the Actsas where there is absence due to illness or war service, orwhere the tenant is in the Army of occupation of Germany, oris a ship’s captain at sea or had the intention of returning tothe premises (which were in London) after the war and thebombing were over.
Even where there is an absence of the tenant sufficiently pro-longed or unintermittent to compel the prima facie inferenceof a ceaser of possession or occupation (which is a question
Samyv Hussain (Somawansa, J.)
of fact and degree), this is not conclusive but puts the onuson the tenant to show that his statutory tenancy neverthelesscontinues. To do this, he must show not only an animusrevertendi but also a corpus possidendi, i.e. ‘some visiblestate of affairs in which the animus possidendi finds expres-sion’ such as the occupation of the premises by somelicensee of his, whether a relation or not. (e.g. his wife, sisteror family or a servant) with the function of preserving thepremises for the tenant’s ultimate homecoming, or perhaps 180by the leaving on the premises of ‘deliberate symbols of con-tinued occupation’, such as furniture.”
On an examination of the evidence led in this case the onlyevidence available to establish the fact that the defendant-respon-dent has gone abroad for employment is that of the evidence of hissister Noor Mohammed. No other evidence either documentary ororal has been led to establish this point. Though the learned DistrictJudge was of the view that this fact is corroborated by the evidenceof the Grama Sevaka Niladari who was called to give evidence bythe plaintiff-appellant. However it appears that this finding of fact is 190not correct when one examines his evidence on this point. It is clearthat it was not his personal knowledge but he had come to knowthrough others that the defendant-respondent had gone abroad foremployment and so on this point we are left with the evidence ofthe sister only and so it is with regard to the intention of the defen-dant-respondent to return.
It appears that when the defendant-respondent came back in1991 he did take an interest in this case by giving instructions to hislawyers to prepare his answer etc., and according to proceedingsdated 27.04.1992 he was present in court on that day but thereafter 200he was never present in court. He did not give evidence nor did heindicate to court that due to some unavoidable circumstances hewas unable to come to court or to give evidence or prevented fromso doing.
If the defendant had any intention or interest in occupying thepremises as his residence he would have taken a keener interestin protecting his rights. For instance, by giving his power of attorneyto someone, or have his evidence recorded in terms of section 178of the Civil Procedure Code (evidence de bene esse) or in terms of
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section 179 of the Civil Procedure Code. I am inclined to take the 210view that the defendant-respondent has totally failed to establishthat he has an abiding interest to keep alive the contract of tenan-cy he entered into with the plaintiff-appellant in 1985.
For the foregoing reasons, I am inclined to take the view thatthe alleged dependents of the tenant in the instant case are not inoccupation of the premises temporarily to keep it for the tenant’sultimate homecoming. It is commendable that one should findaccommodation for one’s dependent relatives. But if the premisesare to be occupied by them exclusively without the tenant himselfbeing in occupation, it is nothing but fair that the landlord should be 220informed and he should consent to it. In view of section 28 it is notopen to the defendant-respondent to put his relatives in the premis-es permanently behind the landlord’s back.
For these reasons, I set aside the judgment of the learnedDistrict Judge dated 30.11.1993 and direct the learned DistrictJudge to enter judgment for the plaintiff-respondent as prayed forin his prayer to the plaint. The appeal is allowed with costs.
DISSANAYAKE, J.I agree
SAMY v. HUSSAIN