Police Constable Piyadasa in his examination in chief says as fol-lows:
Under cross examination the withess stated:
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The plaintiff-appellant too gave evidence and it transpired inhis evidence that as he was out of the country the complaintmarked P4 was made by his father. In re examination he went on 9°to say:
It is to be seen that even in the application made by the plain-tiff-appellant to the Rent Board marked V4 the plaintiff-appellanthas claimed a sum of Rs. 25,000/- in respect of damage caused tothe premises in suit. However the application was later withdrawnby the plaintiff-appellant.
CAAmarasekera v Somapala (Somawansa, J.)263
The defendant-respondent himself under cross examinationadmitted that he did some structural alterations to the premises. Hestated:

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In section 22(2) the relevant provisions applicable the instant isoaction is as follows:
“the condition of the premises has in the opinion of
the Court, deteriorated owing to acts committed by or tothe neglect or default of the tenant or any such person”.
In the case of J.O. de Zoysa v Victor de Silva <1>
Per Thamotheram, J.
“The short point I have to consider in this case is whether adeliberate demolition of a boundary wall of a premises, withoutthe consent of the landlord, for a private purpose of the tenantcan amount to deterioration of the premises committed by the 160tenant under section 13(1) (d) of the Rent Restriction Act(Chapter 274).
There is evidence that in addition to the damage to the bound-ary wall there was some damage to the premises by thedemolition, such as the exposure of a drain pipe, erosion ofthe earth and the weakening of the portion of the boundarywall which also served as a retention wall. There is no doubtthat a boundary wall is part of the premises. I cannot say thatthe learned Commissioner was wrong in holding on the abovefacts that there had been deterioration (made worse) of thepremises by the demolition of the boundary wall”.
In Fonseka v Wijetungai2) the head note reads:
Amarasekera v Somapala (Somawansa, J.)
“ on the allegation of damage the Additional District Judge hadaccepted the evidence of the architect Peiris and found thatdamages has been caused to the floor of the shop, kitchenfloor and southern wall of the shop by acts of the defendent.
The southern wall was damaged by nine angle-iron spikes dri-ven into it to hold timber racks. As a result the wall had a crackpenetrating to the other side causing dislocation of the parapetgutter and rainwater to drain into the shop. The wall was thus 180rendered weak and liable to collapse”
Held:“The two grounds on which a landlord can eject his tenantunder section 12A(1)(d) of the Rent Restriction Act are ‘wan-ton destruction, and, wilful damage.’ The former means that,there must be proof that the premises have suffered total orpartial destruction. In other words they must be totally or par-tially destroyed. To be wanton, such destruction must be theresult of carelessness for or indifference to the consequencesor an unrestrained disregard of them. “Wilful damage” on the 190other hand means damage caused “intentionally” or “deliber-ately”.
There was no evidence that the respondent was guilty of wan-ton destruction. On the other hand the damage to the south-ern wall caused by driving in nine angle-iron spikes was adeliberate act and the resulting weakening of the wall makingit liable to collapse is a direct consequence of the act of drivingin the spikes. The kitchen floor was cracked and pitted by thesplitting of firewood on it and the floor of the shop was dam-aged by the planting of posts to support- heavy rafters. 200Therefore the respondent is guilty of causing wilful damage tothe premises within the meaning of section 12A(1)(d) of theRent Restriction Act.
The damage must be serious and not trivial and what exactlyis serious damage must be left to the discretion of the Judge.
In the Instant case the damage to the southern wall taken withthe damage to the kitchen floor and to the floor of the shopmust be regarded as serious and justifies ejectment”.
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Per Samarakoon, C.J.
“ It is the duty of a tenant to take due care of the premises and 210to restore the premises to the landlord at the end of the ten-ancy in the same condition in which it was delivered to himreasonable wear and tear excepted. (Wille's Principles ofSouth African Law 7th Edition p.422). He must not inter aliacause damage to the premises (Voet 19.2.29). But this dam-age must be of a serious and not of a trivial nature. (Voet19.2.18). What exactly is serious damges is a matter that“ought to be left to the discretion of a prudent and cautiousJudge”. (Voet 19.2.18.) The above are principles of CommonLaw applicable to the relationship of landlord and tenant and I 220think they are apposite for the construction of the provisions ofsection 12A(1)(c) of the Rent Restriction Act (Chapter 274).
T.D.Wijeratne v T.J. Dschoifi) the head note reads:
“The defendant who was a tenant of certain rent-controlledpremises whose standard rent for a month did not exceedRs.100, was running a restaurant business in the premisesfrom 1942. The premises were kept closed from early 1965 till1969 and were not physically occupied by the tenant or byanybody for over two years prior to the date of the institutionof the present action in October 1967. The plaintiff (landlord) 230claimed the ejectment of the defendant on two grounds, viz (a)that the defendant had not been in physical occupation of thepremises for over two years; (b) that the defendant hadcaused wilful damage to the premises within the meaning ofsection 12A(1)(d) of the Rent Restriction Act by keeping thepremises unoccupied and closed;”.
It was held:
(ii) “that there was sufficient evidence in the present case toestablish that, by keeping the premises unoccupied andclosed for a period of over two years, the defendant had 240caused wilful damage to the premises within the meaningof section 12A(1)(d) of the Rent Restriction Act and was,therefore, liable to be ejected on that ground. It is only inthe perspective of landlord and tenant relationship that thequestion whether wilful damage has been caused should
Amarasekera v Somapala (Somawansa, J.)
• be determined. Under Roman-Dutch law it is the duty of
the tenant to use the leased premises with the samedegree of diligence that a good and prudent householderwould use in the preservation of his own property”.
Per Sharvananda, J.:
’’Under the Roman Dutch Law it is the duty of a tenant to usethe leased premises with the same degree of diligence that agood and prudent householder or paterfamilias or farmerwould use for his own property and to take an equal amountof care and preservation of the property. A tenant is accord-ingly liable to the landlord for ordinary gross negligence aswell as for fraud – Voet 19.2.29. Voet states that the lessee willbe fast bound to the lessor if he has neglected the care ofhomesteads, barns and water leadings and thus has allowedthese things and others like them to be spoilt. As the "hirer” isresponsible for that degree of diligence which all prudent men,that is which the generality of mankind, use in keeping theirown goods of the same kind he is liable for such injuries as arecaused by an omission of that diligence. Wille – Landlord andTenant 1910 ed., page 423”.
It appears that the learned District Judge was of the view thatdamage if any caused to the premises in suit were of a trivial natureand that there was’nt an iota of evidence to establish that the defen-dant-respondent caused damage intentionally or deliberately.Furthermore, the learned District Judge refers to some damagecaused to the premises while the defendant-respondent was run-ning a wine stores which the defendant-respondent himself admit-ted under cross examination. However the learned District Judgehas come to a finding that this was a matter that should have beenconsidered at the time the lease marked VI was given to the defen-dant-respondent and as the plaintiff-appellant failed to take anysteps at that stage, he is precluded from relying on such damage ifany now. However I am unable to agree with this finding of thelearned District Judge. For as admitted by the defendant-respon-dent the alteration he had done to the premises when he decidedto run a wine stores discloses that not only did he cause damageto the walls by driving 50 or so 3 inch nails to the walls in order tohold racks but also caused damage to the floor of the premises in
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the process of constructing a partition with bricks. There is also theevidence of planting a post to support the roof.
It is conceded that these alterations were done prior to thesigning of VI. Does it mean as obseved by the learned DistrictJudge and also submitted by counsel for the defendant-respondentthat the plaintiff-appellant is now precluded from agitating on thesematters after the signing of VI. I would without hesitation agree with 290the counsel for the plaintiff-appellant that he could and he shouldsucceed in his claim that the defendant-respondent has causeddamage to the premises. It is to be noted as admitted by the defen-dant-respondent himself that before PC Piyadasa visited thepremises he had removed the partition wall. However PC Piyadasadid observe and testified to the condition of the premises though hewas unable to say whether the defendant-respondent was respon-sible for the same. However we have on the other hand, the admis-sion of the defendant-respondent himself under cross examination.
Be that as it may, it is the duty of a tenant to take due care of 300the premises tenanted to him and to restore the same at the end ofthe tenancy to the Landlord in the same condition in which it wasdelivered to him reasonable wear and tear excepted. All in all hemust not cause damage to the premises. On the other hand, it isthe duty of the tenant to use the leased premises with the samedegree of diligence that a owner would use his own property and totake equal amount of care in the preservation of the property.
The conduct of the defendant-respondent in this case doesnot measure up to the said standards, not only has he caused dam-age to the premises he has clearly neglected the care of the 310premises leased/tenanted to him and allowed the premises to bedeteriorated. It is to be noted that there is no evidence that thedefendant-respondent requested the plaintiff-appellant to effect anyrepairs or on such a request the plaintiff-appellant failed andneglected to attend to any repairs specially those revealed in theevidence of PC Piyadasa. In any event, the fact that the defendant-respondent neglected the care of the property is specificallyreferred to in the police complaint P4 wherein the plaintiff-appel-lant's father has complained.

Amarasekera v Somapala (Somawansa, J.)

In the circumstances, it is my considered view that on a bal-ance of probability the plaintiff-appellant has been successful inestablishing that there is deterioration of the premises as a result ofthe above acts of the defendant-respondent. For the foregoing rea-sons, I would allow the appeal and set aside the judgment of thelearned District Judge and direct him to enter judgment for the 330plaintiff-appellant as prayed for. The defendant-respondent will paya sum of Rs. 10,000/- as costs.
The Registrar is directed to send the case record to the appro-priate District Court forthwith.
DISSANAYAKE, J. – I agree.
Appeal allowed.