WIJAYATJLAKE, JPier is v. De Soysa
1970 Present : Wijayatilake, J.
A. L. T. PIERIS, Appellant, ami L. T. P. DE SOYSA, RespondentS. C. 44169—0. R. Colombo. 917-56jit. jE.
Pent Restriction Act—Section !) (1)—Sub-lcltinj—Proof.
A tenant of rent-controlled premises is not- liable to be ejected on the grounilof “ sub-letting ” if the ovidence, tr.k-.-n as a whole, eliows that the occupantsother than the tenant are boarders and not sub-tenants.
./sJPPEAL from a judgment of the Court of Requests, Colombo.H’. D. Gunasekera. for the defendant-appellant.
D. It. P. Goonclilleke, for the plaint iff-respondent.
Cur. adv. vult.
August 3, 1070. WlJAYATIhAKE, J.
The plaintifT seeks to eject the 1st defendant from the promises Xo. S,Pallidora Road. Dchiwela, inleralia, on the ground that tho 1st defendanthad since 19G5 sub-let a portion of these premises to the 2nd defendantwithout obtaining his written ronscut in contravention of S. 9 (1) oftho Rent Restriction Act. The plaint was filed on 22.II.GO. The 1st
502WjJAYATJXAKE, J.—Picria v. De Soysa
defendant fiJcd his answer on G. 12.67, admitting tho tenancy under tho— plaintiff but denying the averment that ho has sub-let tho promises totho 2nd defendant. On tho same day tho 2nd defendant filed his answerthrough tho same Proctor denj'ing that he is a sub-tenant of the 1stdefendant.
The question which has arisen in this appeal is whether tho Istdefendantsub-let a portion of these premises to the 2nd defendant or whether tho2nd defendant was occupying a portion of these promises not as a sub-tenant but as a boarder. At tho trial the 2nd defendant, although he hadfiled his answer as referred to above denying a sub-tenancy, gave evidencein support of the plaintiff’s case and sought to testify that ho was in factasub-tenant. The learned Commissioner of Requests has very correctlyobserved that he could give very little credence to his evidence. The1st defendant called in support two witnesses, oho Pearl Goonatillakeand one Stcmbo, his brother-in-law. Both these witnesses have spokento the fact that the 1st defendant, was running a boarding house and the}7,
. including the 2nd defendant, were all boarders occupying different rooms.The learned Commissioner has observed that not much reliance could beplaced on their evidence, particularly as they are interested in securingfor the 1st defendant a continuity of tenure. Raving virtually rejectedtheir evidence the learned Commissioner observes that he has to choosebetween the version of the plaintiff and that of the 1st defendant. Heconcludes as follows :—“The testimony of either of them, in my view,was not very impressive; however I am of the view that the 2nd defendantwas not a boarder in the premises in suit but a person who had for himselfthe exclusive use of a portion thereof on the payment of rent.”
In my view on the assessment of the evidence by the learned Commis-sioner it is clear that the plaintiff has failed to discharge the burden ofproof in this case. In the light of the Commissioner’s observations inregard to tho plaintiff and the evidence hr support it would be quitewrong to enter into the field pf conjecture as the judgment has to reston evidence led in the case.
As for the evidence led by the 1st defendant it has to be appreciatedthat this is the best evidence he could have called. On the evidence takenas a whole it is more likely that the occupants were boarders. The caseof Seyed Mohamed v. Meera Ptllai1 cited by learned counsel for therespondent can be distinguished in the context of this case.
I would accordingly set aside the judgment of the learned Commissionerand dismiss tho plaintiff’s action with costs in both Courts.
(1967) 70 N. £,. It. 237.
A. L. T. PIERIS, Appellant, and L. T. P. DE SOYSA, Respondent