SOEBTSZ J.—Abeyewardene and Nicolle
1944Present: Soertsz J.
ABEYEWARDENE, Appellant, and NTCOLLE, Respondent.
86—C. R. Colombo, 93,851.
Rent restriction—Premisesreasonablyrequiredfor occupationby landlord—
Alternative accommodation—Relevant fact—Ordinance No. 60 of' 1942,.s. 8, proviso (c).
In an action for ejectment under the Bent Bestriction Ordinance,where the question is whether the premises are reasonably required foroccupation by the landlord, ■ the matter of alternative accommodationis a relevant fact to be – taken into • account along with other facts inconsidering the question of reasonableness:
Semble,—No appeal lies from a judgment of the Court of Bequests inthe exercise of its jurisdiction under the Ordinance.
PPEAL from a.judgmentof theCommissionerofRequests,
N. K. Choksy (with him R. A. Kannangara), for plaintiff, appellant.
H. W. Thambiah (with him Vaitalingam), for defendant, respondent.
Cur. adv. vult.
July 17, 1944. Soektsz J.—
The appellant who had let to the respondent the premises bearingassessment No. 295, Thimbirigasyaya road, about eleven years ago,
1 (1928) 30 N L. B. 56.
SOERTSZ J.—Abeyeioardene and Nicolle
gave, notice on November 1, 1943, determining the tenancy at the end ofDecember, 1943. The respondent failed to quit the premises and the-appellant instituted this action for ejectment.
In the normal operation of the law, the action was bound to succeed.But section 8 of the Ordinance No. 60 of 1942 has altered the law byenacting that an action for ejectment such as this may not be institutedunless the Assessment Board has in writing authorised its institution andthat s Court may not entertain an action instituted without such authori-sation unless “ the premises are, in the opinion of the Court, reasonablyrequired for occupation as a residence for the landlord or any member ofthe family of the landlord ”
In this instance, the authority of the Assessment Board had not beenobtained and therefore, occasion arose for the Court to answer thepreliminary question whether the plaintiff reasonably required thepremises for one of the indicated purposes. On the answer filed by thedefendant no other question arose.
The Commissioner found, and that finding is supported by evidencethat the plaintiff who had let the premises to the defendant was seekingto ejeet him in order to enable the plaintiff’s married daughter, whohad become the owner of these premises in 1942, to take up her residencein it. The Commissioner was satisfied that the plaintiff was not actuatedby any other motive than that he wanted to enable his married daughterto keep a separate house but nevertheless he found that the premiseswere not reasonably required in view of “ the relative position of theparties concerned ”. The plaintiff’s daughter had been living with herfather ever since her marriage. The husband was mobilised and lived inbarracks. The inconvenience caused to the plaintiff from having to sharethis house with his daughter and her family was very little when comparedwith the inconvenience the defendant and his family would have to faceif they were to be ejected from the premises which they have occupiedfor 11 years when it is very difficult to find a house.
Accordingly the Commissioner dismissed the plaintiff’s ease.
The two contentions advanced, on appeal, for the appellant were
that there was logical inconsistency in the finding that the plaintiff'saction was in good faith and yet unreasonable; (b) that the Com-missioner misdirected himself in taking into account the matter ofsuitable alternative accommodation.
In regard to the first contention, surely, there is no logical inconsistency,even ordinarily, in stating that something has been done in good faithor with the best of motives but yet unreasonably. Everyday experiencewill suggest numerous instances. Much less is there such inconsistencyin a case in which we were concerned not with reasonableness, at large,but with what may be described as relative reasonableness. As JusticeActon observed in S^hrim-pton v. Rabbits1 “ because the landlord’s wishfor possession was reasonable, it does not follow that it was reasonablefor the Court to gratify it ”,
The second contention is based on Counsel’s interpretation of thepassage in the judgment I have already quoted as meaning that the'Commissioner held that alternative equivalent accommodation must be
1 40 T. L. R. 541.
Muller and Municipal Commissioner, Colombo.
shown tc be available before a landlord could eject his tenant. If the judg-ment meant that it would, no doubt, amount to a serious misdirection forwhile under the English Act alternative accommodation is, generally, aperemptory condition, it is not under our Ordinances. But that does notmean that in our law, this matter of alternative accommodation is taboo,that it may not even be uttered. It is a relevant fact to be taken intoaccount along with other facts in considering the question of reasonableness.That is what is laid down in Shrimpton v. Rabbits (supra)—to make anorder the Judge must consider the circumstances of the tenant as wellas those of the landlord. In regard to the case of Raheem v. Jayewardene1I do not read that judgment as having laid down that alternative accom-modation is sine qua non for an order of ejectment. All it says is thatalternative accommodation is a relevant fact in relation to reasonableness.There may be cases in which the fact that alternative accommodation isnot available would militate against an application for ejectment andother cases in which it would not. That would be a question for theTribunal. I see no misdirection whatever in the way the Commissionerconsidered this matter of alternative accommodation in this case.
There is one other point on which I think I ought to say a few words,although it was not referred to at all during the argument and that isthat, in my view, there is no right of appeal from an order of this kind.
It is well established that a right of appeal does not exist unless it hasbeen given expressly or by necessary, that is to sav inevitable, implica-tion (Attorney-General v. Sillam The King v. Hanson 3j. Queen v. Stock 4/Sangarapillai v. Municipal Council, Colombo 5). Ordinance No. 60 of 1942gives no right of appeal in express terms and as far as one can gatherfrom the implication of the Ordinance, section 12 (12) appears to negativesuch a right.
The appeal fails. The respondent is entitled to costs.
ABEYEWARDENE, Appellant, and NICOLLE, Respondent