392Sri Lanka Law Repons3
PERIANANvGUNASINGHE AND ANOTHERCOURT OF APPEALEKANAYAKE, J.
DC NUWARA-ELIYA DE/12SEPTEMBER 25, 2007
Rent Act – Subletting – Supreme Court Rules (1990) – Do they apply toappeals from judgments from the original Court? What is material to provesub-tenancy? Exclusive possession of a defined area necessary?
Judgment was entered in favour of the plaintiff-respondent on the basis that,the defendant-appellant has sublet the premises.
The 2nd defendant’s position was that, he was the tenant of the plaintiff’sfather.
Held:It is necessary to ascertain (1) as to who was the tenant i.e. 1st or the 2nddefendant (2) sub-tenancy and (3) payment, if not action would fail.
The portion sub-let should be capable of ascertainment as an identifiableentity occupied by the sub-tenant to the exclusion of the tenant.
A landlord who pleads a sub-tenancy has to discharge the burden ofproving that some person not only occupied the premises or some partthereof but that he paid rent for his occupation.
The necessity for proof of exclusive possession of a defined area is a sinequa non of a finding as to sub-letting.
There is no cogent evidence to prove and discharge the burden of provingsub-letting
Per Anil Gunaratne, J.
"Rules-SC Rules 1990 – refer to Article 140 and 141 of the Constitution whichdeals with writs and writs of Habeas Corpus and not with appeals from
Perianan v Gunasinghe and Others
judgments from the original Court."
APPEAL from the judgment of the District Court of Nuwara-Eliya.
Cases referred to:
Perera v Seneviratne 77 NLR 403.
Suppiah Pillai v Muttukaruppa Pillai 54 NLR 572.
John Singho v Meeran Bee Bee 1969 75 CLW 107.
Hugo Anthony with A.P. Kanapathipillai for appellant.
L.C. Kumarasinghe for respondent.
January 14, 2008
ANIL GUNARATNE, J.This is an appeal from the Judgment of the District Court ofNuwara-Eliya in a rent and ejectment case delivered on 15.7.1998entering judgment in favour of the plaintiff as prayed for in the plaintand damages. The plaintiff-Respondent's position was that the 1stDefendant was the tenant of the premises described in theschedule to the plaint and the premises in dispute referred to in thesaid schedule to the plaint had been sub-let to the 2nd defendant-appellant. On that basis filed action to eject the defendants. 2nddefendant-appellant filed answer denying above and took up theposition that one John Singho (plaintiff's father) rented thepremises in dispute to him and paid rent to him and on his demiseto his agent.
Plaintiff-respondent's father John Singho was the owner of thebusiness premises which fact is not disputed by either party to thisaction and that the plaintiff-respondent by deed No. 4765 of21.3.1979 marked P1 became the owner of the premises in suit.Owner of premises in suit and paragraph 5 of the plaint arerecorded as admissions in this case. As such sub-tenancy asraised by the plaintiff and that payment was made for suchoccupancy would have to be proved. Further in view of the 2nddefendant-appellant's position it would be necessary to ascertainas to who was the tenant i.e. 1st or 2nd defendant? Neverthelesssub-tenancy and payment for occupancy would have to be provedby plaintiff. If not action would fail.
Sri Lanka Law Reports „
394^ 2 Sri L.R
Plaintiff-respondent’s position was that his father rented thepremises in dispute to one Karuppiah Pillai, on or about 1953 andon his death the wife of the said Karuppiah Pillai and thereaftertheir son the 1st defendant K. Selvarajah became the tenant. The1st defendant had defaulted and the case had been fixed ex-parteagainst the 1st defendant.
Plaintiff-respondent inter alia contends that
2nd defendant’s name not found in any of the rent receiptsmarked D1-D41 but the said John Singho, plaintiff's wife andplaintiff had their signature placed on these receipts.
2nd defendant had an agreement with Karuppiah Pillai whowas the first person to start the business of SaraswathieStores which would prove that Karuppiah Pillai originallyrented the stores from John Singho.
Supports the Judgment of the District Judge.
2nd defendant had not obtained permission of the RentBoard to deposit rent with the Nuwara Eliya DevelopmentCouncil.
2nd defendant is a partner of Saraswathie Stores. Initially inhis evidence 2nd defendant stated he was the owner ofSaraswathie Stores, Later on admitted that he is a partner.
The mandatory requirement in terms of Rule 3(2) of theSupreme Court Rules of 1990, which should contain anaverment that jurisdiction of Court not previously invoked notfulfilled.
This Court observed that this is a frivolous objection since thesaid rules refer to article 140 & 141 of the Constitution whichdeal with Writs and Writs of Habeas Corpus and not withAppeals from Judgments from the Original Court. Theparticulars of the Petition of Appeal and Notice of Appeal areembodied in Section 758(1) and 755(1) of the Civil ProcedureCode. The objection raised do not fall with the aboveprovisions of the Civil Procedure Code.
Appellant had not prayed in his Petition of Appeal to set asidethe Judgment or Order of the learned District Judge.
Perianan v Gunasinghe and Others
The 2nd defendant-appellant inter alia contends that:
Plaintiff’s father was the original land lord and that thepremises were rented from him.
Rent were paid by the 2nd defendant-appellant to the plaintiff
and/or his Agents.
That by the admission of signatures of plaintiff's father in D1-D4 it is apparent that the plaintiff's father was the landlordand 2nd defendant was his tenant.
Plaintiff's version in the plaint differ from the material elicitedin cross-examination.
Partnership agreement 2nd defendant-appellant had withKaruppiah Pillai had no bearing and he died in 1962 longprior to enactment of the rent Act of 1972.
Document D1-D42 not challenged by plaintiff.
On a perusal of the Judgment of the District Court I find that thelearned District Judge having narrated the gist of the evidence ofeach party, refer to inconsistencies in the evidence. The followingmay be noted.
That the receipts issued are not issued in the name of the2nd defendant, but some of the receipts name SaraswathieStores of which the 2nd defendant claim to be it's owner. Oncross-examination the Trial Court Judge states that the 2nddefendant admitted that he was a share holder and that theother share holder was Karuppiah Pillai. It is the view of theTrial Court Judge that the above position contradicts theposition taken in the answer of the 2nd defendant.
I wish to observe that even if there is a contradiction and thefact that the receipts do not show the name of the 2nddefendant, the fact of sub-tenancy cannot be proved orinferred. One could be a shareholder of a business and alsobe the tenant. There is an absence of clear evidence toestablish sub-tenancy.
District Judge has referred to the principles in Perera vSeneviratnew case which I would refer to in this Judgment.
396Sri Lanka Law ReP°nS(2008] 2
Even with or without inconsistencies what is material wouldbe to prove sub-tenancy and payment of rent on thataccount These two aspects cannot be inferred from theevidence led in the Trial Court.
At the least even if the learned District Judge concludes that thetenant was the 1st defendant such view would not give rise to asub-tenancy between the 1st defendant and the 2nd defendant inthe absence of cogent evidence. I have to observe that the learnedDistrict Judge had been misdirected in law and fact on thisaspect.
In Suppiah Pillai v Muttukaruppa PillaH2).
In an action for ejectment on the ground that the tenant hadsub-let portions of the leased premises in breach of Section9(1) of the Rent Restriction Act, the essential test is whetherthere is evidence from which one can infer that there is at leastsome part of the premises over which the tenant has, byagreement, placed the alleged sub-tenant in exclusiveoccupation. The portion sub-let should be capable ofascertainment as an identifiable entity occupied by the sub-tenant to the exclusion of the tenant.
At 575 ….
But the essential test in every case is whether there isevidence from which one can infer there is at least some partof the premises over which the tenant has, by agreement,placed the sub-tenant in exclusive occupation.
Perera v Seneviratne (supra).
A landlord who pleads a sub-tenancy has to discharge theburden of proving that some person not only occupied thepremises or some part thereof, but also that he paid rent forhis occupation.
The requirement relating to exclusive possession of a definedarea of the premises, has been consistently applied in subsequentdecisions. The necessity for proof of this element, as a sine quanon of a finding as to sub-letting, was taken for granted byWijetilleke J. in John Singho v Meerian BeebieW.
Perianan v Gunasinghe and Others
In the circumstances essential requirements as borne out in theabove decided cases have not been proved by the plaintiff in thepresent case to establish sub-tenancy. The examination in chief ofthe plaintiff itself is very brief which lay more emphasis to provetenancy rather than establishing sub-tenancy of the 2nd defendant.In the absence of cogent evidence to prove and discharge theburden of proving the requirements as indicated in the case ofPerera v Senaratne (supra) and the other case law cited abovewould compel me to set aside the Judgment of the District Court ofNuwara Eliya.
Therefore I allow the appeal and dismiss plaintiff's action withcosts, in this Court and in the Original Court.
EKANAYAKE, J. – I agreeAppeal allowed.
PERIANAN v. GUNASIJGHE AND ANOTHER