052-NLR-NLR-V-51-ANDREE-Appellant-and-DE-FONSEKA-Respondent.pdf
Andree v. de Fonseka
213
1950
Present: Gratiaen J.
ANDREE, Appellant, and DE FONSEKA, Respondent
8. C. 43—0. H. Colombo, 9,879
Rent Restriction Ordinance—Premises required for use of landlord—Starting new
business—Quantum of proof necessary—Ordinance No. 60 of 1942, Section 8 (c).
Whore a landlord pioads under suction 8 (c) of tho Kent Restriction Ordinancothat the premises are reasonably required for tho purposes of a new businesswhich he proposes to start, the burden is on him to furnish the Court withsufficient material upon which it can bo inferred that his proposal is genuineand that his demand to eject the tenant in occupation is reasonable having dueregard to the tenant’s position.
It is in certain circumstances open to u landlord, in terms of section 8 (c)of the Rent Restriction Ordinance, to claim back his promises for the purposeof establishing a business which has not yet come into existence.
Hameedu Lebbe v. Adam Saiho (1948) 50 N. L. It. 181, followod.
Mamuhava v. Ruwaupatmimi (1948) 50 N. L. R. 184, not followod.
.AlPPEAL from a judgment of the Commissioner of Requests, Colombo.B. V. Perera, K>C., with S. J. Kadirgamar, for defendant appollant.
E. Ckitty, •with Vernon Wijetunge, for plaintiff respondent.
Cur. adv. volt.
214
GRATIAEN J.—Xm/r« r. ric
February 10, 1050. Gratiaen J.—
This is a tenancy action in which the landlord, who is a Barrister-at-law,sued the appellant, who is the proprietor of a printing establishment,to have him ejected from premises No. 246, Union Place, Colombo.The action was instituted on November 5, 1947, and the premises areadmittedly situated in an area to which the provisions of the RentRestriction Ordinance of 1942 are applicable. The plaintiff claimed thathe was entitled to maintain the action on throe separate grounds—(a)that rent was in arrears, (b) that the condition of the premises haddeteriorated owung to the appellant’s neglect or default, and (c) that thepremises were reasonably required for the purposes of his business.
The first of these grounds was abandoned at the trial, and on thesecond ground the plaintiff failed to satisfy the Court that there had beenany deterioration of the premises for which the appellant could be heldresponsible, On the third ground, however, he succeeded, and the presentappeal is concerned only with the corrcctnessof the learned Commissioner’sdecision on this point.
As the plaintiff had not obtained authorisation from the AssessmentBoard to institute this action, it was incumbent on him to satisfy theCourt that the premises wore “ reasonably required for the purposes ofhis business ”. As I read section 8 (c) of the Ordinance, the reasonablenessof the landlord’s demand to be restored to possession for the purposes ofhis business must be proved to exist at the date of institution of the actionand to continue to exist at the time of the trial. In determining thisissue the Court must take into account the position of the landlord aswell as of the tenant together with any other factor which is relevant to adecision to the case. Doubts which had at one time existed as to theproper interpretation of the words " reasonably required ” appearingin the suction have now been set at rust by the ruling of this Court inOunasena v. Sangaralimjam Pillai <& Co.1.
I shall first consider the position of the tenant. He has been inoccupation of the premises since March, 1938, and according to hisuncontradictcd evidence he has used them continuously for carrying onhis business as a printer and publisher. He prints what he describesas a newspaper called the “ Trespasser Racing and All Sports ” which isapparently so palatable to the taste of its readers that each bi-weeklypublication claims a circulation of 33,000. His efforts to find a suitableplace of business since he received notice to quit the premises have failed,and it must therefore be assumed that, should the plaintiff's actionsucceed, the appellant’s business would in all probability have to come toan end. Whether this loss to “ literature ” and the ensuing frustrationof his 33,000 clients would amount to a very great catastrophe, is of coursebesides the point. The business of printing and publishing is per se alawful occupation.
It is now necessary to assess the reasonableness of the plaintiff’sclaim to occupj' the premises for the purposes of his own business. He
(1948) 49 N. L. R. 473.
GRATTAEN J.—Andreev. deFonseka
215
is fifty-eight years old, and is a Barrister-at-law, but has admittedlynot practised his profession for very many years; it is not suggestedthat he requires the premises for use as *' chambers Nor does herequire to reside there. He states, however, that he “ intends ”to set himself up in business. When invited in cross-examination togive more information regarding the nature of this proposed undertaking,he refused to do so. A man is no doubt entitled to withhold from othershis closely-guarded secret as to the details of any future business which hehas in contemplation, but in that event I fail to see how he can expectto satisfy a Court of law as to the merits of his claim that the premiseswhich his tenant now occupies arc reasonably required for that business.Hi my opinion the burden which rests on the plaintiff cannot be dischargedunless the Court is furnished with sufficient material on which it candetermine that the premises are necessary or suitable for the launchingof his new enterprise ; that the proposal to start a new business afterejecting a tenant in occupation is a practical proposition ; and that it isreasonable to compel the tenant to abandon his own long-establishedbusiness so as to make room for such a project. The plaintiff is apparentlya gentleman of means. He had been away in Europe for some yearsbefore the war, and returned to this island in 1930. Eight yearn later,he became attracted by the idea of undertaking a business venture ofan unspecified nature. At one time he thought of returning to Europeafter the war, but later he decided not to. I do not doubt that hissomewhat vague intentions as to the future were genuine enough at thetime when, he gave evidence at the trial, but he has not placed beforethe Court sufficient material upon which it could be inferred that hisproposal to enter the field of commerce was something more than adecision to gratify a passing whim. 1 have therefore come to the conclusionthat the plaintiff has not discharged the burden of establishing that heis entitled to have the defendant ejected from the premises. It is notimprobable that his decision to claim to be restored to possession for thepurpose of establishing a new business was in some measure motivatedby the belief that tho condition of the premises had deteriorated throughsome fault of the defendant. That belief ha 4 now been proved to bewithout foundation.
The question lias also been raised as to whether it is open to a landlord,in terms of section 8 (c) of the Ordinance, to claim back his premises fortho purpose of establishing a business which has not yet come intoexistence. In Hameedu Lebbe v. Adam Saibo1 my brother Nagalingamseems to have decided the question in the affirmative. In a later case,however, my brother Basnayake took a contrary view, and held that thesection only applied if there was an existing trade or business for whichthe leased premises were required by the landlord {Mamuhewa v.Ruwanpatirana2).I myself am not prepared to go so far. It seems
to me that the section would cover the case of a landlord who has decidedto establish a new business and who is only prevented from implementingthat decision owing to lack of suitable accommodation for the purpose.In other words, there must exist at the relevant date a present requirement
> {1948) 60 N. h. R. 181,
* {1948) 50 N. L. R. 184.
216
GRATIAEN J.—Andrei v. de Fonstka
to uso the premises for the purposes of a business which has alreadybeen established or, in the alternative, which will be establishedby him os soon as the premises are made available to him. Ineither event, he must place before the Court the necessary materialto assist it in deciding whether his demand to eject the tenant in occupationis a reasonable one having due regard to the tenant’s position. Thisis precisely what the plaintiff has failed to do in the present action.I accordingly set aside the judgment appealed from and dismiss theplaintiff’s action with costs both here and in the Court below.
Appeal allowed.