ARNOLDA v. LAWRENCE (No. 2)

045-SLLR-SLLR-1982-2-ARNOLDA-v.-LAWRENCE-No.-2.pdf


768
Sri Lanka Law Reports
(1982) 2 S.L.R.
ARNOLDA
v.
LAWRENCE (No. 2)
COURT OF APPEAL
RANASINGHE, J.. (PRESIDENT C/A) AND ATUKORALE, J.
C.A. APPLICATION NO. 92/82 – D.C. COLOMBO R 563/RE.
SEPTEMBER 30, 1982.
Landlord and tenant – Rent and ejectment – Section 22(1) (bb) of the Rent Act'No. 7 of 1972 (as amended by Law No. JO of 1977) – Requisites for such a suit- Necessary pleadings –
Held –
In a suit for rent and ejectment under s. 22(1) (bb) of the Rent Act No.7 of 1972 (as amended by Law No. 10 of 1977), apart from the requirementthat the standard rent of the .premises does not exceed Rs. 100/- per month andthat the premises are reasonably required for the use and occupation as aresidence for the plaintiff and the members of her family (and service of noticeof the action on the Commissioner of National Housing as required bys.22(l A) of the Rent Act), the plaintiff must plead in the plaint and establish –
the fact of non-ownership of more than one residential house;
the fact of letting the premises to the .defendant prior to thecommencement of the Rent Act, i.e. prior to 1.3.1972.
CA
Amolda v. Miriam Lawrence (No. 2) (Atukorale. 1.)
769
Under s. 36 of the Rent Act on the death of a monthly tenant by operationof law the contract of tenancy does not terminate but continues between thelandlord and the legal representative or heir of the deceased tenant.
A tenant may seek to establish that he became tenant not in succession tohis deceased father who was tenant before him but on a fresh contract of tenancyentered into after 1.3.1972.
Cases referred to:
Ariyanandhi v. Sideek S.C. 520169(F); D.C. Calle No. L/7595; S.C. Mnutesof 26.6.1975
Fernando v. de Silva (1966) 69 N.L.R. 164
Mohamed v. Public Trustee (1978-79) 1 Sri L.R. 1
APPLICATION for revision of the order of the District Court of Colombo.
C. Renganathan, Q.C. with N.S. A. Gunatilleke and N. Mahenthiran for the petitioner.A. K. Premadasa with T. B. Dilimuni for the respondent.
Cur. adv. vult.
November 10, 1982.
ATUKORALE, J.
The plaintiff; who is the respondent to the present application torevise the order of the learned Additional District Judge of Colombodated 4.1.1982, sued the defendant, who is the present petitioner tohave him ejected from premises No. 129, Pickerings Road, Kotahena,on the ground that the premises were reasonably required for useand occupation as a residence for herself and the members of herfamily. The plaintiffs case was founded on the provisions of s. 22(1)' (bb) of the Rent Act, No. 7 of 1972, as amended by Law No.10 of 1977. These provisions would apply only if the premises had ,been let to the tenant prior to the date of commencement of theRent Act, namely, 1.3.1972. It was not in dispute that the defendant’sfather was the tenant of the premises under the plaintiff until hisdeath on 31.8.1972; that the plaintiff had on 27.2.1978 given thedefendant six months’ notice in writing of the termination of thetenancy requiring the defendant to vacate the premises on 31.8.1978and that notice of the action had been served on . the Commissionerof National Housing as required by s. 22(1A) of the Rent Act asamended. After trial the learned Judge held that the standard rentof the premises did not exceed Rs.100/- per month and that thepremises were reasonably required for the use and occupation as a
770
Sri Lanka Law Reports
(1982) 2 S.L.R.
residence for the plaintiff and the members of her family. In additionto the above admissions and findings of fact in her favour, theplaintiff, to succeed in her claim, had also to plead and establishfirstly that she was not the owner of more than one residentialpremises and, secondly, that the premises were let to the defendantprior to the date of commencement of the Rent Act, i.c. prior to 1.3.1972.
In regard to the first matter aforementioned, the plaint did notcon^in any averment that the plaintiff was not the owner of morethan one residential premises. Nor was an issue raised on this pointat the hearing in the lower court. A large volume of evidence was,however, led on both sides relating to this matter and the learnedJudge came to the conclusion that it was not necessary to plead thefact of non-ownership of more than one residential house in theplaint. He also held that the plaintiff had on the evidence establishedthat during the relevant period she did not own any house otherthan the premises in suit. In regard to the second matter aforementionedthe following issue was raised at the hearing on behalf of the defendantas issue No. 7:
“Did the defendant become the tenant of the plaintiff- as, from1.9.1972?”'
Issue No. 10, also raised on behalf of the defendant, w&s as fol-lows:
• “If any one or more of the issues are answered in favour of-the defendant, can the plaintiff have and maintain this action?”
The learned Judge answered issue No. 7 in the affirmative butheld that the consquential issue No. 10 did not arise for consideration.He entered judgment for the plaintiff and ordered the eiectment ofthe defendant.
The defendant appealed to this court from this judgment. Thiscourt held that the plaintiff should have in her plaint pleaded thatshe was not the owner of more than one residential premises sinceit was a necessary ingredient of – her cause of action. As the plaintdid not aver this fact, this court held that the plaint should., havebeen rejected! The court further went -on to consider the questionas to when the tenancy of the-defendant commenced. It took theview that on the pleadings filed it was clear that whilst the. plaintproceeded on the footing that the plaintiff let the premises to the
CA
Arnolda v. Miriam Lawrence. (No. 2) (Amknrale. J.)
771
defendant, this fact wa§,.admitted by the defendant in his answer:that the defendant averred that he became the tenant on 14.9.1982after his father’s death on 31.8.1982; that, in his evidence,, however,the defendant stated that he became,the tenant on 1.9.1972;and thatthe learned Judge.had reached the finding that the tenancy-commencedon 1.9.1972. On a consideration of., the .above matters this court,formed the opinion that the plaint was presented on the footing ofa contract of tenancy between , the plaintiff and the defendant. andthat the only point that remained for decision by . the learned Jjidgewas whether, the tenancy commenced on. 14.9.1972 or 1.9.19,72. Thelearned Judge found that it commenced ond.9.1972,.a finding whichthis court held was fatal to the plaintiff’s claim-. This, court thus.-heldagainst the plaintiff on both matters aforementioned. Accordingly theappeal was allowed and the plaintiffs action was dismissed.
From this judgment the plaintiff appealed to the Supreme Court.The Supreme Court too held that the plaintiff should have pleadedthat- she was not the owner of more than one residential premisesas this fact was a fundamental requisite to the invoking of theprovisions of Law No. 10 of 1977. It observed that a court hasjurisdiction to entertain and proceed with a case under this Law onlyif there is a specific averment to this effect in the plaint. But sincea large volume of evidence had been led on this point in the lowercourt, the Supreme Court held that it was the duty of the court tohave framed an issue even if the parties failed to do so. On theother question pertaining to the commencement of the tenancy, theSupreme Court observed that whilst the learned Judge had answeredissue No. 7 in the defendant’s favour, yet he had answered theconsequential issue No. 10 as not arising for its considerations Sincethe action could have been maintained only if the premises had beenlet to the tenant prior to 1.3.1972, the Supreme Court held that itwas incumbent on the learned Judge to have determined whetherthe premises had been let prior to this date or not. In the courseof its judgment the Supreme-Court stated:
“It is also in evidence that the defendant’s father was theoriginal tenant of this premises since 1914 and the defendanthad become the tenant of the premises only after the father’sdeath in-August 1972. Therefore it was necessary for court tohave considered whether the defendant became a statutorytenant after the death of her (his) father or whether there wasa fresh contract of tenancy between the plaintiff and the
17-1
772Sri Lanka Law Reports(1982) 2 S.L.R.
defendant. No issues have been framed to this effect andtherefore there is no determination as to whether the defendantwas a statutory tenant succeeding to his father’s tenancy ofthe premises in suit on the death of the father under theprovisions of the Rent Restriction Ordinance or whether hebecame, the tenant on a fresh contract of tenancy.”
The Supreme Court took the view that on the evidence led therewa& no doubt that the real issues which arose for determination bythe learned Judge were in respect of the above two legal positionson;;which no issues had been, framed. Accordingly it set aside thejudgment of this court and remitted the case for further trial in theoriginal court on the following 4 additional issues:
“15. Is the plaintiff the owner of more than one residentialpremises?.
. 16. If this issue is answered in the affirmative can the plaintiffmaintain this action in terms of paragraph 22 (1) of RentAct 7 of 1972 as amended by. Rent Amendment Law 10of 1977?
Did the defendant become the tenant of. the plaintiff, asfrom 1.9.1972 oh a fresh contract of tenancy? ….
Is so, can the plaintiff have and maintain this action under,the provisions of the Rent Act 7 of 1972 as amended..by
aw 10 of 1977?”
^'n)&1Supreme Court further directed that the answers to issues . 1to 14 already given by the learned Judge should stand and that theywill not be affected by the 4 additional issues. It also indicated thatdie parties were at liberty to lead further evidence on matters raisedon the above 4 issues only.
At the further hearing on these issues in the District Court theplaintiff and the defendant gave evidence, oral and documentary.The learned Judge answered issue No. .15 in the negative and heldthat issue No. 16 would therefore not arise for consideration. Learnedcounsel for the defendant has not sought to canvass the correctnessof the findings of the learned Judge on these two issues before us.On issue No. 17 the defendant stated in evidence that he telephonedthe plaintiff on 14.9.1972 because of the plaintiffs delay in sendinghim the receipt for the rent, paid on 9.9.1982 for the previous month(August). He stated that during the course of the telephone conversation
CA ■Arnnldii v. Miriam Lawrence (No. 2) (Amkorale. J )773
he asked the plaintiff for the tenancy in his- namc; ?ndr. that -theplaintiff agreed to make him -her tenant. The plainitiff.iftrhef.evidencestrenuously denied any telephone conversation with-, the .^defendant.The learned Judge rejected the defendant’s evidence on this, pointand accepted the denial of the plaintiff. This finding of fact too hasnot been challenged by learned counsel for the defendant before us.The learned Judge thus held on the evidence that no fresh contractof tenancy has been proved to have been entered into between theparties after the death of the defendant's father on 31.8.1972. Followingthe unreported decision of the Supreme Court in Ariyanandhi v.Sideek, (1) the learned Judge held that on the death of the defendant’sfather the tenancy of the premises did not terminate but continuedbetween the plaintiff and the defendant. Accordingly he answeredissue No. 17 in the negative in the plaintiffs favour' and 'tHeconsequential issue No. 18 as not arising for his consideration. Hethus entered judgment for the plaintiff in ejectment against thedefendant. The present application by the defendant is to have thisjudgment revised. *
Learned counsel for the defendant contended before us that thejudgment in. so far as the findings on issues 17 and. 18 a re.concernedwas wrong since-what the Supreme Court directed the origin&Lcjourtto determine thereon were pure and simple legal issues. He submittedthat , what the Supreme Court intended, was that there, should-be.;?final adjudication on a purely legal issue, as to whether a tenancythat was deemed to have come into* existence between the partiesby virtue of s. 36 (2) of the Rent Act as; a result of the death ofthe defendant’s father on 31.8.1972 was a fresh.contract of tenancyor whether it was a continuance of the old tenancy between, theplaintiff and the defendant’s father which, admittedly, had beencontracted prior to 1.3.1972. Learned counsel maintained that nofresh evidence was necessary to decide this legal issue and that thelearned Judge had misconceived the true nature of the directionsgiven by the Supreme Court. He also argued that, a contract- oftenancy can be created either by .operation of law or by agreementof parties. A ‘deemed’ tenancy under s. 36 of the Rent Act, hesubmitted, is one. created by operation of law and constitutes a freshcontract of tenancy coming into force on the death of the formertenant, fh.is a legal-concept creating a new contract of. tenancy anddoes not constitute a continuance of the old tenancy. He thus urgedthat the contract of tenancy between the plaintiff and the' defendantbeing one that came into force on .1.9.1972 by operation of law gn
774
Sri Lanka Law Reports
(1982) 2 S L R.
the death of the' defendant’s father, the premises cannot in law besaid to have been let to the defendant prior to the date of commencementof the Rent Act on 1.3.1972 and that therefore the plaintiff cannotmaintain this-action under s.22 (1) (bb) of the Act as amended.byLaw No. 10 of 1977.
If the contention of learned counsel for the defendant that issueNo. 17 formulated by the Supreme Court constituted a purely legalissue the answer to which did not entail the consideration of theoral‘evidence is correct then, with utmost respect, I do not see anyreason why the Supreme Court should have directed this issue to betried by the learned Judge for the Supreme Court itself would thenhave been in a better position to determine the issue. If it was' apurely legal issue there would, with respect, have been no purpose-in remitting it to be decided by the original court. A careful perusalof the judgment of the Supreme Court seems to show that the courtaccepted the finding .of the .1,earned Judge on issue No. 7, .namely,that the defendant became the tenant as from 1.9.1972, that is onthe death of his father. But in view of the learned Judge’s answerto issue No. 10, the Supreme Cdurt appears to have taken the viewthat the real question for determination by the learned Judge remainedundecided, nameiy, whether it was on a fresh contract of tenancybetween the parties or whether it was in succession to his fatherthat the defendant became a tenant as from 1.9.1972. With respect,it seems to me to be implicit in the judgment of the Supreme Courtthat if the defendant became the tenant of the premises on 1.9.1972in succession to his father, then the original tenancy of the fathercontinued on his death by operation of law unless of course thedefendant was in a position to establish, as alleged in his evidence,that by agreement of parties a-fresh contract of tenancy came intoexistence. The view that on the death of a monthly tenant thecontract of tenancy does not terminate but continues between thelandlord and the legal representative or heir of the deceased tenanthas been considered and upheld by the Supreme Court in FernandoV. de Silva (2), Ariyanandhi v. Sideek (1) and in Mohamed v. PublicTrustee (3). S.36 of the Rent Act deals with persons entitled tocontinue the contract Of tenancy on the death of the tenant. In thisstate of the laW I am of the opinion that the Supreme Court in theinstant case granted the defendant an opportunity of establishing thathe became the tenant not in succession to his deceased father buton a fresh contract of tenancy. The defendant attempted to provesuch a fresh tenancy but failed. Under the circumstances I am unable
S'CWijemckrema r. Attorney-General775
to agree with the contention of learned counsel for the defendant.I am of the view that the findings of the learned Judge on issiies17 and 18 are correct. The application is accordingly dismissed withcosts fixed at Rs. 525/-.
RANASINGHE, J. – 1 agree.
Application dismissed.
17-2