095-NLR-NLR-V-63-SENEVIRATNE-Appellant-and-PERERA-Respondent.pdf
Seneviratne v. Perera
609
Present: Weerasooriya, J.SENEVIRATNE, Appellant, and PERERA, Respondent
C. 166—C. R. Colombo, 72808
Rent Restriction Act, No. 29 of 1948—Section 13 (J)—Action in respect of “ exceptedpremises ”—Effect when, pending the action, the premises are taken out of thecategory of “ excepted premises ”—“ Proceedings for the ejectment of thetenant
Where, at the time when an action is instituted by a landlord, for the eject-ment of his tenant, the premises in question are “ excepted premises ”, authorisa?tion of the Board in terms of section 13 (1) of the Bent Bestriction Act does notbecome subsequently necessary if, during the pendency of the action, thepremises are taken out of the category of “ excepted premises ” by reasonof the reduction of the annual value of the premises.
Appeal from a judgment of the Court of Requests, Colombo.
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H. V. Perera, Q.C., with H. E. B. Gooray, for the defendant-appellant.
H. W. Jayetoardene, Q.C., with R. Manikkavasagar and S. 8. Basnayakeifor the plaintiff-respondent.
Cur. adv. wit.
2*—R 2372 <4/02 >
610
WEERASOORIYA, J.—Seneviratne v. JPerera
January 17, 1962. Weerasoobiya, J.—
This is an appeal by the defendant against the judgment and decreeof th© Court of Requests, Coiombo, dated the 14tb December, 1960,ordering his ejectment from certain residential premises situated withinthe Municipality of Colombo of which he was the tenant under theplaintiff. In entering judgment the Court also ordered that writ ofejectment should not issue until the 30th November, 1961. At the timeof the institution of the action (on the 8th April, 1959) the provisions ofthe Rent Restriction Act, No. 29 of 1948 (Cap. 274) did not apply to thepremises as they were “ excepted premises ” in that the annual valuethereof was Rs. 2,240.
The trial took place on the 22nd November, 1960, and subsequentdates. Prior to that, and with effect from the 1st January, 1960, theannual value of the premises was reduced to Rs. 1,845. In the result,the premises were taken out of the category of “ excepted premises ”and the provisions of the Act became applicable to them. Section 13 (1)of the Act is as follows—“ Notwithstanding anything in any other law,no action or proceedings for the ejectment of the tenant of any premisesto which this Act applies shall be instituted in or entertained by anyCourt, unless the Board, on the application of the landlord, has in writingauthorised the institution of such action or proceedings.” Then comesa proviso under which the authorisation of the Board is declared not to benecessary in any of the cases mentioned in paragraphs (a), (6), (c) and (d)of the proviso. Paragraph (c) enables judgment in ejectment of thetenant to be given if, inter alia, the premises are, in the opinion of theCourt, reasonably required for occupation as a residence for the landlordor any member of his family. It may be stated that the operation ofparagraph (c) has been temporarily suspended by section 13 (1) of theRent Restriction (Amendment) Act, No. 10 of 1961.
The present action for the ejectment of the defendant was institutedwithout obtaining the authorisation of the Board under section 13 (1).It is common ground that such authorisation was not required as theprovisions of the Act were not then applicable to the premises. ButMr. H. V. Perera, who appeared for the defendant-appellant, submittedthat once the provisions of the Act became applicable to the premises(that is, from the 1st January, 1960) the subsequent trial, and also anysteps that may be taken in Court in the execution of the decree,constitute “ proceedings for the ejectment of the tenant ” as contemplatedin section 13 (1), and that in the absence of any authorisation by theBoard under that section the Court is precluded from entertaining theproceedings except in a case falling within the proviso. It was on thisground alone that Mr. Perera asked that the judgment and decreeappealed from should be reversed and the plaintiff’s action dismissed.
The main plank of learned counsel’s argument was that Rent Controllegislation is in a class by itself, the object of it being to protect tenantsfrom eviction by their landlords, and that such legislation shall beconstrued in a manner which will suppress the mischief and advance
WEERASOORIYA, J.—SenevircUne v. Per era
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the remedy. While I see no objection to the rule of beneficial construc-tion being invoked in construing the Rent Restriction Act, [I thinkthat, having regard to the inroads made by the Act on the common lawrights of landlords, a Court should at the same time guard itself againstgiving tenants any greater protection than is accorded by the languageof the relevant provisions of the Act.
There does not appear to be any previous case where the precise pointraised by Mr. Perera was decided in this Court. In the absence ofdirect authority, he relied on certain cases dealing with paragraph (c)of the proviso to section 13 (1) where the question was whether theconditions postulated in that paragraph should be shown to exist as atthe time of institution of the action or at the time when the Court iscalled upon to make the order of ejectment. On that question thereseems to be a sharp conflict of judicial opinion—see Ismail v. Herftx;S. P. Kader Mohideen & Co., Ltd. v. S. N. Nagoor Gany2; E. L. AmolisAppuhamy v. L. D. De Aliois3; and Swamy v. Gunawardene4. Butthose cases dealt with an entirely different question and, in my opinion,they are of little assistance in the decision of the point raised in thepresent appeal.
The word cc proceedings ” in section 13 (1) is, no doubt, a generalword whioh, in its ordinary sense, would be applicable to the trial stageof an action or the stage when the decree is sought to be executed. Butassuming (without deciding) that the proceedings at the trial of thepresent action or the stage of execution of the decree that has beenentered would come within the expression “ proceedings for the eject-ment of the tenant ” in section 13 (1), the question yet remains whethersuch proceedings required the authorisation of the Board. It seems tome that section 13 (1) itself furnishes the answer to the question, sincethe concluding part of the section expressly provides for the authorisationof the Board being necessary for the institution of the action or proceed-ings referred to in the earlier part. I think that it would be a misuseof language to speak of proceedings which are a step in, or incidental to,a pending action as proceedings which are “ instituted ”.
Under section 3 of the Small Tenements Ordinance (Cap. 102) it isopen to a landlord to take proceedings for the recovery of possession ota “ tenement ” as defined in section 2 of that Ordinance, by the filingof an application supported by an affidavit, instead of by a regularaction. The filing of such an application would be an instance of pro-ceedings being instituted for the ejectment of the tenant within themeaning of section 13 (1) of the Rent Restriction Act.
In my opinion, neither the proceedings at the trial nor at the stagewhen the decree is sought to be executed are proceedings of the kindcontemplated in section 13 (1) as requiring the authorisation of the Board.
The appeal is dismissed with costs.
1 (1948) 50 N. L. R. 112.* (1958) 60 N. L. R. 16.
Appeal dismissed.
(1958) 60 N. L. R. 141.* (1958) 61 N. L. R. 85.