Sri Lanka Law Reports
 1 Sri L.R
COURT OF APPEALEKANAYAKE, J.
CA 604/95 (F)
DC COLOMBO 6393/REMAY 30, 2007
Rent Act 5 of 1972 – Section 28 – Section 28(1)- Non occupation of premises
Non-occupying tenant – Constructive occupation? – Genuine and lawful cause
Landlord not informed – Possession requires not merely an animus possdendibut a corpus possesionis – Exclusive possession of dependents of the tenant.Possession through outsiders – Difference.
Action was filed to evict the defendant-appellant tenant in terms of Section 28 ofthe Rent Act. The defendant-appellant's position was that he left for Singaporefor employment for a total period of 3 years, and the defendant's mother andsister were kept at the premises, and she had the intention to return at the endof the period of employment. It was the position of the defendant-appellant thathe had 'constructive occupation' as a result of his mother and sister occupyingthe premises.
The plaintiff-respondent contend that, the defendant-appellant was not inpossession for a continuous period of 4 years, and that there was no reasonablecause for non-occupation, and the electoral registers prove the occupation of thepremises by outsiders.
The trial Judge held with the plaintiff-respondent.
Section 28 envisages a reasonable cause of the tenant to be absentfrom the premises in question for a continuous period of 6 months toavoid ejectment. It has to be genuine and a lawful cause to get theprotection of the statue for a tenant.
The period spent outside the Island by the tenant is admitted, theversion of the tenant does not indicate as to whether the landlord wasinformed about the departure.
Kamala Perera v Liyanapathirana (Anil Gooneratne, J.)
There is an absence of exclusive possession of the dependents of thetenant. There were outsiders in the premises. Possession by unknownpersons should be only with the landlords' consent.
APPEAL from the judgment of the District Court of Colombo.
Cases referred to:
Subendranathan v Dr. S. Ponnampalam -1985 – Sri LR 205
In Re Sarny – Hussain Appellate Law Recorder- 2005 (2) 9
Weerasingham and another v De Silva – 2002 – 2 Sri LR 233
Fonseka v Gulamhussein – 1978/79 – 2 Sri LR 312 •
Siththi Fausiya v Harun Kareem – 1990 – 2 Sri LR 154
Mahinda v Periapperuma -1996 – 2 Sri LR 90
Pir Mohamed v Kadhibhoy – 60 NLR 186
Skinnerv Geary- 1931 -2 KB 546
Amarasekera v Gunapala – 73 NLR 469
V. Kulatunga for defendant-appellantC.E. de Silva for plaintiff-respondent
September 4, 2007ANIL GOONERATNE, J.
This was an action filed in the District Court of Colombo for 01ejectment of the tenant (defendant-appellant) in terms of section 28of the Rent Act on the basis of non-occupation of residential premisesfor a period of 6 months without any reasonable cause and damages.
The appeal arises from the judgment dated 18.7.95 entered in favourof the respondent landlord, as prayed for in the plaint.
The fact of tenancy and that the premises is a residentialpremises were admitted at the trial. Parties proceeded to trial on 12issues. The defendant tenant filed answer through her power ofAttorney holder and pleaded inter alia that the defendant-appellant 10tenant left for Singapore for employment on or about 18th August1984 on a contract of employment for period of two years initially,which was extended for a further period of 2 years. The defendant-appellant contends the following matters.
Defendant's mother and sister were kept at the premises insuit with the intention of the defendant's return to the islandat the end of the period of employment.
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Plaintiff admitted in cross examination that mother and sisterwere at the premises in dispute.
Defendant went abroad with the intention of returning to Sri 20Lanka.
Defendant maintains constructive occupation as a result ofher sister and mother occupying the premises.
The substituted-plaintiff-respondent contends.
Defendant-appellant was not in occupation of the premisesin suit from 18.8.84 for a continuous period of 4 years. Assuch the burden is on the defendant to prove, reasonablecause for non-occupation.
The electoral registers marked P2-P4 proves occupation ofthe premises by outsiders and persons unknown to the 30original plaintiff.
A valid notice to quit dispatched to defendant terminatingtenancy.
Defendant failed to prove a reasonable cause as required interms of section 28(1) of the Rent Act.
Several authorities were cited by counsel on either side. I referto those authorities very briefly and demonstrate below the gist of it,before considering the evidence and the judgment of the DistrictCourt, to ascertain the position urged by both parties.
Subendranathan v Dr. S. Ponnampalarrt>> occupation by 40the tenant's wife and children was constructive occupation
by the tenant.
In the case in hand it is the position of the tenant that duringher absence the old mother and sister occupied thepremises.
In Re Samy(2> at page 9. If the premises are occupiedexclusively by the dependants in the absence of the tenant,the landlord should be informed of such occupation andlandlords should consent.
CA Kamala Perera v Liyanapathirana (Anil Gooneratne, J.)269
It is my view also that the landlord as the owner of the premisesshould be aware of the state of his own premises and as towho and who are occupying the premises.
Weerasingham and another v De SilvaP> temporaryabsence of tenant with intention to return within areasonable period should not deprive tenant of theprotection under the Rent Act. However if the house is keptclosed or exclusively occupied by strangers, tenant cannotavert eviction.
Fonseka v Gulamhusseint4) occupation through a license isnot protected by section 28(1) of the Rent Act, unless thereis reasonable cause. Otherwise tenant is liable to beejected. Consent of landlord if some other person is placedin the premises would be necessary.
Siththi Fausiya v Harun Kareemf5>. No formal requisites fora notice of termination except period of duration to quitspecified by statute.
Mahinda v PeriapperumaW. Proper period of notice isrelevant.
The eviction of the tenant is relied upon by the respondent interms of section 28(1) of the Rent Act. The said section reads thus…
"Notwithstanding anything in any other provisions of this Act,where the tenant of any residential premises has ceased tooccupy 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 a courtof competent jurisdiction to a decree for the ejectment of suchtenant form such premise."
The said section envisages a reasonable cause of the tenant, tobe absent from the premises in question for a continuous period of 6months to avoid ejectment. It has to be a genuine and a lawful causeto get the protection of the statute for a tenant, to resist eviction. It isa special statutory right given to the landlord to eject the tenant.
The District Judge has taken the view that defendant's evidencedoes not disprove the plaintiff's evidence and plaintiffs version. The
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learned District Judge has accepted the evidence of the plaintiff. It isobserved by the Trial Court Judge that plaintiff testified that one DayaWeerasekera was having a wood workshop in the premises and thatthe plaintiff had not given his consent for such purpose. Further theplaintiff had not been informed about defendant's departure from theisland to Singapore. Extracts from electoral registers were marked in 90evidence as P2 – P4, and Daya Weerasekera's name had beenincluded in those documents pertaining to the premises in dispute.
The Trial Court Judge also observes that defendant does not denyDaya Weerasekera's role in the premises and as such plaintiffsversion is more probable on this aspect and plaintiffs version isacceptable. Defendant's stay in Singapore for 2 years and extensionof her stay for a further 2 years is not disputed.
The evidence relied upon by the appellant could be summerisedas follows. As demonstrated in the written submissions.
The Power of Attorney holder gives the reason for her sister 100leaving the island to seek employment. That is to find money
for a family member to cover medical expenses.
Tenant would return to the island and occupy the premises.
Since August 1984 rent paid from the money recovered byher sister (tenant).
Landlord's son visited the premises in October 1984.
Premises occupied by family member and not by anyoutsider.
The period spent outside the island by the tenant is admitted.
The version of the tenant does not indicate as to whether the landlord 110was informed about the departure from the island. DayaWeerasekera's role or occupation of the premises, is also notspecifically denied by the appellant. As such Trial Court Judge cannotbe faulted for accepting respondent's version. Claim of the landlordmust necessarily be preferred to that of a non-occupying tenant.Daya Weerasekera was in no sense privy to the contract of tenancy.
In the written submissions the appellant emphasis the fact thatthe tenant had the intention to return to Sri Lanka. The position ofDaya Weerasekera was denied by the tenant. Tenant also suggest
Kamala Perera v Liyanapathirana (Anil Gooneratne, J.)
constructive tenancy by occupation of her mother and sister the 120power of attorney holder. The answer given by the District Judge toissue No. 1 and 5 is faulted by the appellant.
The evidence of the original landlord is that he visited thepremises in question in December 1984 and found several outsidersinside the premises. It is also in evidence that no permission hadbeen given to any person of Daya Weerasekera to have a woodworkshop. Documents P1-P4 has been admitted in evidence, andthere was no objection to those documents at the close of the case.
The learned District Judge has preferred to accept the versionof the respondent and rejected the story of the appellant in 130connection with the premises in question. However it is apparentfrom the evidence placed before the original court that no permissionof landlord was obtained prior to departure of the tenant from theisland and that there is an absence of exclusive possession of thedependents of the tenant. There is no reason to disbelieve theevidence of the original landlord who maintained that there wereoutsiders in the premises. Long absence of the tenant is also notdisputed. Possession by unknown persons should be only withlandlords consent. I cannot see any such consent given by therespondent from the evidence led at the trial.uo
At this point I would also refer to some case law and certainauthorities where the position of non-occupation of tenant has beendiscussed. Although earlier view as in the case of Pir Mohamed vKadhibhoyd) Basnayake, J. disapproved adoption of English Lawprinciples to our Rent Restriction Act, one cannot in todays contextreject English Law principles as regards the Rent Act No. 7 of 1972(with Amendments) to ascertain the question of non-occupation.
In Skinner v Geary® Tenant Geary had lived elsewhere for tenyears, and the premises were occupied by his relations and by hissister, presumably as tenants at will. The occupation of the relations 150and the sister was not for the purpose of preserving the house for thetenant, and at no time did the tenant contemplate residing in thehouse again, Scrutton L.J. dealt with the history of the RentRestriction Acts in England, and observed that the statutory tenant'sright was not a right of property but purely a personal right to occupythe premises. In his view, the fundamental principle of the Act was "to
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protect a resident in a dwelling house, not to protect a person who isnot resident in a dwelling house."
In Amarasekera v GunapaiaP),Alles J. had no hesitation inholding that the defendant came within the definition of a ‘non- 160occupying tenant'. So far as the gist of this concept was concerned,reliance was placed on the law as expounded in the Englishauthorities. In Robson v Headland. Lord Tucker, speaking for theCourt of Appeal, applied the principle of a 'non-occupying tenant' tothe case of a divorced wife who, the Court held, was a stranger to thehusband. In Brown v Brash and Ambrose the Court of Appeal (Scott,Bucknill and Asquith L.JJ). Sought to explain what was meant by anon-occupying tenant'. Asquith L.J. conceded that the absence of thetenant from the premises may be denied if he coupled and clothedhis inward intention with some formal, outward and visible sign such 170as installing a caretaker or representative, be it a relative or not, withthe status of a licensee and with the function of preserving thepremises for his ultimate home-coming. Acquith L.J. said"Possession in fact requires not merely an animus possidendi but acorpus possessionis – namely, some visible state of affairs in whichthe animus possidendi finds expression.
Therefore I am inclined to accept the views of the learnedDistrict Judge and hold that the appellant has not satisfied theOriginal Court that there was a reasonable cause to absent herselffor over 6 months from the premises in question. As such the isoappellant cannot seek to get the protection of the Rent Act. Thereforethe respondent would be entitled to a decree for the ejectment of thetenant from the premises in dispute. The judgment of the DistrictCourt is affirmed. Appeal dismissed with costs, fixed at Rs. 10,000/-.
EKANAYAKE, J.- I agree.
KAMALA PERERA v. LIYANAPATHIRANA