PEAL from a judgment of the Court of Requests, Colombo?
H. V. Perera, Q.C., with E. JR. 8. R. Coomaraswamy and E. B. Vanni-tarriby, for the defendants appellants.
N.K. Choksy, Q.C., with A. M. Charavanamuttu, for the plaintiffsrespondents.
Cur. adv. vvlt.-
GRATlABftr J.—Suppiah Pittai v. Atuttukaruppa Piltai
August 5, 1953. Gbatiaen J.—
The first defendant was at all material times a tenant under theplaintiffs of certain business premises in the city of Colombo. Theplaintiffs sued him for ejectment on the grounds inter alia (a) thalf hewas in arrears of rent within the meaning of the Rent Restriction Act,No. 29 of 1948, (6) that the premises were reasonably required for theirown business within the meaning of the Act, and (c) that, since the pass-ing of the Act, he had without their consent and in breach of section9 (1) “ sublet portions of the premises to the 2nd and 3rd defendants ”.
The learned Commissioner of Requests, in a very careful judgment,rejected the allegation that the tenant was in arrears of rent as wellas the allegation that the premises were reasonably required by theplaintiffs for their own use. He held, however, that there had takenplace a sub-letting as alleged in the plaint, and therefore granted theplaintiffs a decree for the ejectment of all three defendants.
. It is not in dispute that the 2nd and 3rd defendants had originally beenemployees of the 1st defendant and that this relationship representedat that time their only connection with the business carried on by the1st defendant in the premises. At a later date, however, each of themregistered himself as the sole proprietor of a separate business allegedto be carried on in the same premises. In the result, the premises becamethe business address of all three defendants. This took place after theAct came into operation.
The position taken up by the 1st defendant was that the businessesregistered in the names of his former employees were in reality his own,and that their apparent distinctiveness was merely a convenient deviceby which he could secure to himself the advantage of obtaining a largerquota of certain “ controlled ” commodities than he was entitled toreceive as the proprietor of a single business.
This explanation was rejected by the learned Commissioner, butMr. Perera argued that,, even upon the findings of fact recorded in thejudgment under appeal, there was no proof that the 1st defendant had“ sublet the premises or a part of the premises ” in breach of sec. 9 (1)of the Act. Having given my best consideration to the arguments uponthis question of law, I am satisfied that Mr. Perera’s contention mustprevail.
It is necessary, for the purposes of my judgment, to summarise thelearned Commissioner’s findings of fact upon the issue of subletting.He has held in effect :
that each of the defendants was carrying on in the same premises
a separate (but similar) business of which he was sole proprietor ;
that the 2nd defendant and the 3rd defendant each paid to the 1st
defendant as consideration for this contractual arrangementa sum of money representing a proportion of the amount of rentalpaid by the 1st defendant to the plaintiff in respect of the entirepremises.
The learned Commissioner held that this constituted a “ sub-letting ” of portions of the premises to the 2nd and 3rd defendants
5 $4
GRATIAEN J.— Suppiah Pillai v. Mutbukarwppa Pillai
respectively. Mr. Perera has pointed out, however, that there is nofinding that the 2nd and 3rd defendants occupied either jointly or severallyany identifiable portion “ carved out ”, so to speak, of the leased premises.On tfie contrary, the plaintiff’s own evidence indicates that the 1stdefendant, qua tenant, and the other defendants, qua contractual licensees,indiscriminately shared the use of the entire building for the purposesof their respective businesses. This state of things, it is argued, .negatives the view that the relationship of the 1st defendant vis a viseither the 2nd or 3rd defendant is that of tenant and sub-tenant underthe common law or the Rent Restriction Act.
There is nothing in the provisions of the Act from which one maylegitimately infer that the concept of “ sub-letting ” prohibited by sec. 9is different to that in which the term is properly understood underthe Roman-Dutch Law which governs transactions of this kind in Ceylon.
It is essential to the formation of a contract of tenancy (or of sub-tenancy) that the “thing hired” is,capable of ascertainment as anidentifiable entity occupied by the tenant (or sub-tenant as the case maybe) to the exclusion not only of trespassers but of the landlord (or tenant)himself. As Wille puts it, “ The parties must definitely agree upon thesame property as being the subject-matter of the contract, and (in thecase of a written lease) the subject-matter must be defined or describedwith a degree of precision which will enable it to be identified withoutrecourse to the evidence of the parties concerned, otherwise no lease isformed ”—Landlord, and Tenant in S. Africa (3rd Ed.) p. 24. It followsthat no breach of sec. 9 (1) of the Act is committed if a tenant, whilehimself remaining in occupation of the leased premises, merely permitssomeone else to share their use and enjoyment with him.
A consideration of the pronouncements of the English Courts as tothe effect of the provisions of the corresponding statutes in thatcountry, in relation to the consequences of “ sharing arrangements ”affecting “ separate dwelling-houses ”, would merely add to the difficulties■ of Judges who are called upon to administer the Rent Restriction Actin Ceylon. There is one reported decision, however, Baker v. Turner l,which does assist one, because in that case the House of Lords has laiddown, inter aUa, certain general principles concerning the true incidenceof sub-letting under the English common law. The following ruleswill be found to be equally applicable to the Roman-Dutch Law oflandlord, tenant and sub-tenant :— 1 2
(1)A tenant who, while continuing to occupy and to retain his general
control of the leased premises, merely permits another person,by agreement, to share his use and enjoyment of the whole ora part of the premises does not thereby create between hirqselfand that other person the relationship of tenant and sub-tenant.
(2)In such a situation, the tenant remains tenant of the entirety
of the premises and continues in exclusive “ occupation ”thereof subject only to the personal rights of user granted to<thelicensee.
(1950) A. C. 401.
Senaratne v. Maggie Nona'
Applying these rules to the present case, I hold that a “ sub-letting ”of any portion of the premises by the 1st defendant to either the 2nd orthe 3rd defendant has not been established by the evidence. I 'agreewith Mr. Choksy that a valid sub-letting can effectively take placewithout any structural demarcation of the portion sub-let from the rest ofthe premises; but the essential test in every case is whether there isevidence from which one can infer that there is at least some part ofthe premises over which the tenant has, by agreement, placed thesub-tenant in exclusive occupation. No such evidence is to be foundin the present case, and the plaintiffs have not established that, sincethe date of his agreement with the 2nd and 3rd defendants, the 1stdefendant, qua tenant, ceased to occupy, or to exercise his generalcontrol over, any portion of the premises. I therefore allow the appealand dismiss the plaintiff’s action with costs in both Courts.
Appeal allowed.