007-NLR-NLR-V-65-ANDIRIS-APPUHAMY-et-al.-Appellants-and-D.-B.-M.-KURUPPU-Respondent.pdf
Andiris Appuhamy t>. Kuruppu
21
1963Present: Sri Skanda Rajah, J.
ANDIRIS APPUHAMY et al, Appellants, and D. B. M. KURUPPU,
Respondent
S.C. 116 of 1961—G. R. Colombo, 74886
Bent Restriction Act—Business carried, on by a tenant in premises let—Sub-letting ofpremises under cover of lease of the business—Liability of tenant and sub-tenantsto be ejected.
Where a tenant who carried on a business in a portion of rant-controlled pre-mises purported to lease out the “ business ” to a third party but, according tothe evidence, the transaction was in reality sub-letting of a distinct portion of thepremises—
Held, that the landlord was entitled to eject the tenant and sub-tenants on theground of sub-letting. 1
1 {1951) 53 N. L. JR. 374, 46 <7. L. W. 6.
22
SRI SJiAN'DA RAJAH, J.—Andiria Appuhamy v. Kumppu
Appeal from a judgment of the Court of Requests, Colombo.
S. V. Per era, Q.C., with N. E. Weerasooria (Jnr.), for 1st, 2nd and 4thDefendants-Appellants.
Ranganalhan, with S. C. Crossette-Tambiah, for Plaintiff-Respondent.
Cur. adv. vult.
March 15, 1963. Sri Skastda Rajah, J.—
The plaintiff-respondent (hereinafter referred to as the landlord) letto the first defendant-appellant (hereinafter referred to as the tenantor as the first defendant) premises bearing assessment No. 11 at a monthlyrental of Rs. 60. In these premises the tenant was carrying on a sundryboutique in one portion, a textile business in another portion and a hotelbusiness, named Ajantha Hotel, in a third portion. It is clear from theevidence of the landlord as well as that of the tenant that each of thesethree portions has a separate entrance.
On 10th August, 1959, the tenant and the second defendant entered intothe agreement 1D1, the relevant portions of which are :—
“ AND WHEREAS the party of the Eirst Part hath agreed with theparty of the Second Part to lease out the said business together with thefurniture, fittings and other things fully described in the List annexedhereto for a term or period of Four Years commencing from the Fifteenthday of August, One Thousand Nine Hundred and Fifty-Nine subject tothe terms covenants and conditions hereinafter contained.
NOW THIS INDENTURE WITNESSETH AS FOLLOWS
That the party of the Eirst Part shall as from the loth day ofAugust, 1959 deliver unto the party of the Second Part the aforesaidbusiness called and known as “Ajantha Hotel” (Only the Tea Kiosk,exclusive of the Textile and Sundry boutique) together with the furni-ture and fittings appertaining thereto and fully described in the listannexed hereto.
That the party of the Second Part shall at the execution hereofdeposit with the party of the first part a sum of Rupees One Thousand(Rs. 1,000) as five months rent in advance which sum shall be set offagainst the rent for the last five months and shall also pay a sum ofPwupees Two hundred (Re. 200) per month, the first of such paymentsto be made on or before the 15th day of September, 1959.
That the party of the Second part shall pay during the said term,all the Electricity bills in respect of the aforesaid Hotel.
The party of the First part shall and will pay house rent in respectof the aforesaid hotel and obtain licence in his name.
SRI SKANDA RAJAH, J.—Andiria Appukamy v. Kuruppu
23
v.That the party of the First part shall and. will during the afore-said term of four years cause or procure the party of the Second Part tocarry on the business without any interruption by the party of the FirstPart or any other person or persons lawfully claiming under or in trustfor him.
-6. In. the event of the party of the Second part finding it unable tocarry on the business he shall give the party of the First part Fivemonths’ notice in writing and shall be at liberty to terminate the saidbusiness thereafter.”
The landlord filed this action on the basis that the tenant had sub-leta portion of the premises in contravention of the provisions of the RentRestriction Act and, therefore, he is entitled to eject the tenant andsub-tenants.
Mr. H. V. Perera has strenuously contended that there was no lettingand hiring of premises, but only a “ lease ” of the hotel business or onlya granting of the privilege to carry on the hotel business and that thedelivery of possession of the premises was merely ancillary to the ” lease ”of the hotel business. This argument was based on the judgmerts inthe oases of Charles Appuhamy v. Abeysekera1, Jayasinghe v. GoolamHussein *, which followed the earlier decision, and Swami Sivaguanandav. The Bishop of Kandy3. Particular emphasis was laid on a passageat p. 246 in the first of these judgments. His contention was that thesecond defendant was not a contractual tenant of the first defendant.He further sought to distinguish the facts of this case from those inthe case of Nicholas Hamy v. James Appuhamy i. He also invited meto go only by the document 1D1, drawing attention to the fact that itdoes not contain a description of any immovable property. Hissubmission was that this omission strongly supported his contention.
Mr. Renganathan, on the other hand, invited me to consider thecircumstances leading up to the execution of 1D1, the conduct of thefirst and second defendants and the oral evidence in the case along with1D1, which, in his submission, was a type of pretence or blind or rusecommonly adopted to circumvent the provisions of the Rent RestrictionAct.
The Right Honourable Sir Henry Slesser, P.C., sometime one of HerMajesty’s Lords Justices of Appeal says, “ It is a sign of an imcompetentlawyer or Judge that he is over-impressed by citation of particularauthority ” : The Art of Judgment (1962) at p. 28. Lord Mansfield said,“ Precedents serve to illustrate principles ”. To take the document aloneinto consideration, as was done in the case of Charles Appuhamy v.Abeysekera (supra), would be to be led into error. It should beremembered that in that case the action was by the landlord againstthe alleged tenant and not one by the landlord against his tenant alleg-ing that the latter had sub-let a portion of the premises, as in this case.The correct approach would be to examine the facts and circumstances
1 [1954) 56 N. L. R. 243.»(1953) 55 N. L. R. 130.
9 (1955) 56 N. L. R. 381.4 (1950) 52 N. L. R. 131.
SRI SELAStDA RAJAH. J.—Andtris Apmthcutny v. Kvruppu
of each case in order to ascertain whether they fall within the principlerelied on by counsel.
Witness Piyadaaa Perera was the one who arranged the transaction
between the tenant and the second defendant. He says, “It was Iwho arranged these premises to be taken over by the Tamil people (thesecond, third and fourth defendants are Tamils). They wanted thisplace bo do business …. These Tamil people brought their ownfittings to this hotel. Now there are new fittings in this hotel ”. Thisevidence would go to show that the second defendant was not lookingfor a business to take it on lease. He wanted premises to cany on hisown business as a hotelier. The tenant’s hotel business was not a payingconcern. The second defendant is an Indian, who did not even have atemporary residence permit. It was under these circumstances that1D1 was entered into.
The second defendant changed the name from Ajantha Hotel toAjantha Cafe, though the licence for the business continued in the nameof the tenant. He changed the type of food served there, equipped theplace and had his own employees.
In paragraph 7 (d) of the amended answer the appellants averred :“ That the first defendant was carrying on a hotel under the name ofAjantha Hotel in a portion of the said premises. That the first defendantby an Indenture dated 10th August, 1959, leased the said Hotel Businessto the second defendant for a period of four years …. ”
The tenant’3 evidence-in-chief regarding the Rs. 1,000 deposited withhim in terms of clause 2 of 1D1, which is as follows r " The Rs. 1,000 isto be set off for the last 5 months of occupation ”, is not withoutsignificance.
The tenant has given the following pieces of evidence : “ Adjoining thishotel is my textile shop separated by alroirahs ”.“ They are furnished
hotel premises for which J get Rs. 200 a month ”.“ The hotel portion is
bigger than the other two portions and it has a bigger compound and rentfor it is Rs. 25" I have no right to eject him if he does any other
business but the hotel business ”.
When it was put to him that 1D1 was prepared in order to fall in linewith the law he said, “ I got permission of the landlord to leasethese premises out
Clause 6 gives the second defendant the right bo “ terminate the saidbusiness ” if he finds it difficult to carry on. If it was only a “ lease ofthe business ” one would expect the business to be handed back to thetenant and not to be closed.
All the evidence, coupled with this olause, gives the show away. OnecaDnot resist the conclusion that the transaction was in reality sub-lettingof a distinct portion of the premises. This would entitle the landlord toeject the tenant and sub-tenants.
For these reasons, I would dismiss the appeal with costs.
Appeal dismissed.