ATUKORALE, Appellant, and NAVARATNAM, Respondent

132-NLR-NLR-V-49-ATUKORALE-Appellant-and-NAVARATNAM-Respondent.pdf


BASNAYAKE J.—Alukorale v. NavareUnam.
461
1948Present: Basnayake J.
ATUKORALE, Appellant, and NAVARATNAM, Respondent.
S.C. 37— C. R. Colombo, 6,499.
Rent Restriction Ordinance—Action by landlord—Premises reasonably required forhis occupation—-Difficulties of tenant—Should they be considered ?—Duty ofCourt—Section 8 (c)—Ordinance No. 60 of 1942.
Section 8 (c) of the Rent Restriction Ordinance requires the Court to forman opinion whether the premises are reasonably required for the occupationof the landlord. The tenant’s difficulties do not come into the matter at all.The only thing that matters is the reasonableness of the landlord’s requirement.
A PPEAL from a judgment of the Commissioner of Requests, Colombo.
M. M. Kumarakulasingham, for the plaintiff, appellant.
H. IV. Thambiah, for the defendent, respondent.
Cur. adv. milt.
July 20, 1948. Basnayake J.—
The plaintiff-appellant, one A. Atukovale (hereinafter referred to as theplaintiff), and the defendant-respondent, one A. T. Navaratnam(hereinafter referred to as the defendant), are landlord and tenant. OnFebruary 27, 1947, the plaintiff gave the defendant notice terminating histenancy and requiring him to quit premises No. 101 A6, situated atDe Alwis Place, Dehiwela, at the end of March, 1947. The defendant isin occupation of the premises notwithstanding the termination of histenancy. The plaintiff therefore brings this suit praying for an orderof ejectment against the defendant and for damages at the rate of Rs. 60per mensem commencing on April 1, 1947. The plaintiff alleges that thepremises are reasonably required by him for his occupation as a residence.The defendant while admitting the receipt of the notice terminatinghis tenancy denies that the premises are reasonably required for theoccupation of the plaintiff as a residence. He also alleges that theplaintiff has recovered from him certain sums in excess of the authorisedrent.
The following issues were tried :
Are the premises in question reasonably required by plaintiff for
his occupation as a residence for himself and his family 1
What is the standard rent of the premises from January, 1946 ?
462
BASNAYAJCE J.—Alukoralc v. Navaratnam.
What amount has the plaintiff recovered from the defendant in
excess of the authorised rent 1
What amount, if any, is due from the plaintiff to the defendant ?
The learned Commissioner finds that the premises are not reasonablyrequired by the plaintiff for his occupation as a residence and has there-fore dismissed his action. In regard to the other issues he says :
“ (2), (3) and (4) do not arise in view of the defendant’s agreementto pay Rs. 65 a month and rent has been paid up to the end ofSeptember, 1947.”
The present appeal by the plaintiff is from the order dismissing his action.
The pi amt iff and the defendant are both employees of the Government.The former is attached to the Customs Department, while the latter isemployed in the Food Control Department. The plaintiff is married andhas four sons and two daughters while the defendant is a bachelor, withwhom live his mother, his elder brother, a nephew and a niece.
The plaintiff owns five houses at De Alwis Place, Dehiwela. Theyare Nos. 101 A5, A6, A9, A 10 and All. Of these A5and A6 are largerthan A9, A10, and All. The rent of each of the small houses is Rs. 50per mensem while the rent of each of the large houses is Rs. 65. In1942 the plaintiff, who was occupying one of these houses, A5, went tolive-at Kadvwata because St. Peter’s College, where his sons were beingeducated, moved to Minuwangoda. Later, as he found it inconvenientto travel daily to work from Kadawata to Colombo, he gave notice to thetenant who occupied A10, one R. D. P. Ekanayake, and on May 3, 1943,instituted an action for ejectment (Dl), as Ekanayake did not quit. Heobtained judgment against that tenant on July 1, 1943, but did notexecute the decree. His explanation for not proceeding to executionis that meanwhile St. Peter’s College had returned to Colombo, and hissons, who were boarders had come to live with him and that houseA10 was too small for his entire family.
Therefore, the plaintiff, on October 11, 1943, gave notice to quit toone Mrs. A. P. Siriwardena, the tenant of A5, the house in which helived in 1942 when he moved to Kadawata. As I mentioned earlier,it is one of the two large houses. As she did not quit, on March 7, 1944,he filed action (D2). On July 13, 1944, the learned Commissioner dis-missed the plaintiff’s action on the ground that he was not satisfiedwith the reasonableness of the plaintiff’s request. Owing to a changein his circumstances, on May 27, 1946, the plaintiff again gave Mrs. Siri-wardene notice to quit on June 30, 1946, and instituted an action againsther on July 9, 1946. This action too was dismissed on December 12,1946. In the concluding paragraph of the learned Commissioner’s judg-ment in the second action against Mrs. Siriwardene, he says :
“The premises occupied by Mr. Navaratnam in the same placebelongs to the same plaintiff. That house is of the same size as thepremises in question. Why cannot the plaintiff eject Navaratnamand get into possession of those premises ?”
While the second action against the tenant of A5 was pending, theplaintiff, on September 11, 1946, received notice from one Dr.- Dabrera,
BASNAYAJtE J.—Alukorale v. Navarainam.
463
whose house, 209, Malwatta Road, he was occupying, to quit and deliverpossession thereof on December 31, 1946. After the dismissal of the .second action against Mrs. Siriwardena the plaintiff instituted thepresent action, perhaps encouraged by the observations of the learnedCommissioner. He explains that one of the small houses will not suithis requirements as he must have accommodation for his six children.Besides, he says, his wife is ill and he wants a house close to the sea.His present house :s damp and has no ceiling, and no lights. He had tosell his car because it has no garage. His own house A6 which thedefendant now occupies has ceiling, lights, and garage, and answers toall his needs.
Learned counsel for the appellant on the authority of Fernando v.David1, questioned the correctness of the learned Commissioner’s finding,as he has proceeded on considerations which may not properly be takeninto account in determining whether premises are reasonably required foroccupation as a residence for the landlord under section 8 (c) of theRent Restriction Ordinance, No. 60 of 1942.
Learned counsel for the respondent maintained that the learnedCommissioner’s finding is correct and cited a number of decisions2 bothof this Court and of the High Court in England. He relied.particularlyon the case of Wijemanne <fc Co. Ltd. v. Fernando3, which he said wasbinding on me as it is a decision of two judges. The observations ofSoertsz J. in that case form no part of the ratio decidendi and are clearlymade in regard to the finding of the learned District Judge, whichSoertsz J. himself says is obiter.
The decisions of this Court cited.by learned counsel for the respondentproceed on the basis of the decision in Raheem v. Jayawardene*. Thatdecision follows the English cases of Nevile v. Hardy5 and Shrimpton v.Rabbits6. The former is a decision under section 5 (1) of the Increase ofRent and Mortgage Interest (Restrictions) Act, 1920, and the latter is adecision under section 5 (1) of that Act, as re-enacted by section 4 of theRent and Mortgage Interest Restrictions Act, 1923. I append to thisjudgment for convenience of reference the full text of section 5 bothbefore gnd after its amendment in 1923.*
It is clear from both the earlier and the later provisions of law thatthe English statute has imposed on the Court the obligation of satisfyingitself that alternative accommodation is available to the tenant. Eor
1 (1948) 49 N. L. R. 210.
1 Abeyewardene v. Nicolle (1944) 45 N. L. R. 350.
Raheem v. Jayawardene (1944) 45 N. L. R. 313.
Wijemanne & Co., Ltd. v. Fernando (1946) 47 N. L. R. 62.
Ramen v. Perera (1944) 46 N. L. R. 133.
Mohamed v. Salahudeen (1945) 46 N. L. R. 166.
Maharoof v. Isadeen (1946) 48 If. L. R. 14.
Williamson v. Pallant (1924) 2 K. B. 173.
Shrimpton v. Rabbits, 40 T. L. R. 541.
» (1946) 47 N. L. R. 62.
• (1944) 45 N. L. R. 313.
124 Law Times 327.
40 T. L. R. 541.
• Vide Pate 470.
464BASNAYA1CE J.—Atukorale v. Navaratnam.
convenience of comparison I set out below in parallel columns the relevantprovisions of section 5 (1) (d) of the two Acts. The works common toboth are underlined.
Sections (l)(d) of the 1920 Act.Section (5) (1) (d) of the 1923 Act.
“ 5.(1) No order or judg- “ 5. (1) No order or judgment for the
ment for the recovery of pos- recovery of possession of any dwelling-session of any dwelling-house house to which this Act applies or for theto which this Act applies, or ejectment of a tenant therefrom, shall befor the ejectment of a tenant made or given unless—therefrom,- shall be made or(d) the duelling-house is reasonably
given unless—required by the landlord for occupation as
the dwelling-house is a residence for himself, or for any son orreasonably required by the d lughter of his over eighteen years of age,landlord for occupation as a or for any person bona fide residing with
for himself, or for him, or for some person engaged in hisany person bona fide residing whole time employment or in the wholeor to reside with him, or for time employment of some tanant fromsome person in his whole time him or with whom, conditional on housing
employment or in the whole accomtnod ition being pvovid jd a con-
,7cZT tract for such employment has been
time employment of some, ., ,,
=— entered into, and (except as otherwise
tenant from him, and (except., , ,r.——.
provided by this sub-section) the court is
as otherwise provided by this ——t~——
satisfied that alternative accommodation
sub-section) the court is satis- ——r-r-r —————
is available which is reasonably suitable
fied that alternative accom- —. „,, .,,
-— to the means of the tenant and to the
modation, reasonably equi- need, of th, tenant and him family as
valent as regards rent and regards extent, character, and proximity
suitability in all respects, is to place of work and which consists
available ;either of a dwelling-house to which this
and, in any such case as afore- Act applies, or of premises to be let as a
———— separate dwellin' on terms which will
said, the court considers it £,^, .
afford to the tenant security of tenure
reasonable to make such an reasonably equivalent to the security
order or give such judgment. afforded by this Act in the case of a
"dwelling-house to which this Act applies ;
and, in any such case as aforsaid, the
court considers it reasonable to make suchan order or give such judgment.
Having set out the relevant provisions of the English statute, T shallexamine the cases.
In the case of Nevile v. Hardy (supra), Peterson J. says :
“ That leaves clause (d) of section 5 (1), which supplies the plaintiffwith an alternative claim, and in certain circumstances enables an orderor judgment to be made or given for the recover of possession of any
BASNAYAKE J.—Atukoraie v. NavarcUnam.
465
dwelling-house to which the Act applies. The first point which arisesis on the question whether the dwelling-house is reasonably required.So far as it is necessary for me to hold, I think, that the dwelling-housemust be reasonably required when the order for recovery of possessionis asked for, namely, at the hearing and that then the judge must besatisfied that the dwelling-house is reasonably required by the landlordfor occupation, as a residence for himself or other persons specified inclause (d). In the present case, the plaintiff required the upper floorsas a residence for herself, and finding that she could not get them she hadtaken other premises for her residence, but I do not think that the fact thatshe is living elsewhere is any reason for holding that the dwelling-houseis not reasonably required by her as a residence for herself or for personsin her whole time employment. The evidence is that if she couldobtain possession of these upper floors she would use them for theoccupation of herself and her staff, and, in those circumstances, Icannot say that they' are not reasonably required by her. The defendant,therefore, cannot rely upon the earlier part of clause (d). But theconditions of the latter pait of the clause must also be satisfied by thelandlord before he can obtain an order for possession, and under themthe court must be ' satisfied that alternative accommodation, reason-ably equivalent as regards rent and suitability in all respects, isavailable ’.”
It appears from the above quotation that if the words “ satisfied thatalternative accommodation, reasonably equivalent as regards rent andsuitability in all respects, is available ” had not been present in theEnglish section, the decision would have been in favour of the landlord.For, after citing the circumstances in which the premises were requiredby the landlord, the learned Judge observes : “ I cannot say that theyare not reasonably required by her …. But the conditionsof the latter part of the clause must also be satisfied by the landlord beforehe can obtain an order for possession.”
In the later case, viz., Shrimpton v. Rabbits (supra), Swift J. says :
“ In considering whether it was reasonable to make an order forpossession, the County Court Judge must consider all the circumstancesaffecting the tenancy—those of the tenant as well as those of thelandlord. A good deal of confusion seemed to have crept in throughno clear distinction having been made between a landlord’s “ reasonablyrequiring ” the premises within the meaning of paragraph (d) of section5 (1) and the Court’s thinking it reasonable to give effect to the land-lord’s requirement. The fact, however, that a landlord satisfied theCounty Court Judge, that he was entitled to possession on any of thegrounds specified in section 5, sub-section 1 (a) to (i), did not absolvehim from the further necessity of persuading the County Court Judgethat it was reasonable that an order for possession should be made.”
Swift J. speaks of “ the further necessity of persuading the CountyCourt Judge that it was reasonable that an order for possession should bemade” because of the words “and, in any such case as aforesaid, thecourt considers it reasonable to make such an order or give such judg-ment ” in sub-section (I). Those words are applicable to the paragraphs
466
BASNAYAKE J.—Atukorale v. Navaratnam.
(a) to (i) of section 5(1). That is why Swift J. says that the fact thata landlord satisfied the County Court Judge that he was entitled topossession on any of the grounds specified in section 5, sub-section (1) (a)to (i), did not absolve him from the further necessity of persuading theJudge that it was reasonable that an order for possession should be made.
Now I come to the case of Williamson v. Pallant1 cited by learned counselfor the respondent. An examination of that case reveals that thatdecision too proceeds on the final words in section 5 (1), viz., “and,in any such case as aforesaid, the court considers it reasonable to makesuch an order or give such judgment ”. To read into the words “ in theopinion of the Court, reasonably required ” of section 8 (c) of the RentRestriction Ordinance the words of the English section, would in myview be a transgression of the limits of judicial interpretation and anencroachment on th e functions of the legislature. In the case of Thompsonv. Goold <b Co., Ltd 2, Lord Mersey said : “ It is a strong thing to readinto an Act of Parliament words which are not there, and in the absenceof clear necessity it is a wrong thing to do. ” I see no clear necessityto read into Section 8 (c) of our Ordinance any words whatsoever. AsI observed in my judgment in David v. Poulier 3, the scope of the RentRestriction Ordinance which is designed to restrict the increase of rentand to provide for matters incidental to such restriction, should not beenlarged by the importation of considerations not contemplated by theOrdinance. In this connexion one is reminded of the words ofTindal C.J. : “ We must not import into an act a condition or qualifica-tion which we do not find there. ” 4
The Rent Restriction Ordinance is described in the long title as anOrdinance to restrict the increase of rent and to provide for mattersincidental to such restriction. Although in early English legislationthe title was not regarded as part of the statute, in modern legislation,both here and in England, the title is an important part of the statuteand it is proper to refer to it in ascertaining the general scope of anenactment, and seek assistance from it in construing the enactment,bearing in mind the fact that the -title cannot prevail over the clearwords of the statute. It is hardly necessary to cite authority for theabove rule of interpretation. I wash, however, to mention the cases ofJeremiah Ambler cfe Sons Ltd. v. Bradford Corporation 5 and Fenton v.Thorley <fc Co. Ltd.6.
There is nothing in the section I am called upon to construe in thiscase that is repugnant to the long title. If a landlord were free to ejecthis tenant at his whim and fancy he would thereby be able to thwartthe object of the Rent Restriction Ordinance by ejecting a tenant whorefuses to submit to a demand of more than the authorised rent. Toprevent such an abuse of the Ordinance, as an incidental matter,section 8 (c) is enacted. The interpolation of specific provisions of foreignlegislation in that section would in my view amount to an extensionof its scope beyond the limits contemplated by the legislature. It
1 (1924) 2 K. B. 173.
3 (1910) 79 L. J. K. B. 905 at 911.
S. C. Minutes of June 8, 1948—<S. <7. 72/C. R., Colombo, 8,022.
Everett v. Mills, 4 Scott, N. C. 531 (Dawarris on Statutes, p. 579.)
(1902) 2 Ch. (C. A.) 585 at 594.
(1903) A. C. 443.
BASNAYAKE J.—Atukorale v. Navaratnam.
467
must be assumed that the introduction of provisions relating to alternativeaccommodation from the corresponding legislation in England wasadvisedly avoided.
While interpreting the law so as to give full effect to the intention ofthe legislature, one must guard against introducing one’s own viewsas to what the law should be in the light of similar legislation elsewhere.In England the Rent Acts have been on the statute book for over twenty-five years and during that time have attained almost the stature of aCode. In the English legislation the question of alternative accommoda-tion is hedged in by safeguards. The introduction of the concept ofaltemf .. accommodation without them would result in injustice to thelandloru as in the instant case, where a man with a family of six childrenwho owns five houses has been battling manfully for well nigh five yearsto get one of them for his own residence. The story of his trials andtribulations has been unfolded to two successive Commissioners buthe has not succeeded in persuading them that his requirement isreasonable.
In construing our legislation in regard to matters for which there issimilar legislation in England, it is unsafe to institute a textual comparisonof the English and local legislation on the subject and to conjecture asto the intention of the draftsman. The words of caution expressedby the Privy Council against such a course should not in my opinionbe ignored J.
The words “in the opinion of” are not unfamiliar in our legislation.The Estate Duty Ordinance and the Income Tax Ordinance providemany instances of the use of that phrase. These words in this contexthave no special or technical meaning. They mean according to thejudgmentof the Court 3 or Tribunal or person who has to form the opinion.In this connexion it will not be out of place to remind oneself of the wordof Lord Bramwell in the caseof Allcroft v. Lord Bishop of London 3: “ If aman is to form an opinion and his opinion is to govern, he must form ithimself on such reasons and grounds as seem good to him.”
In my view it would have made little or no difference if, in thiscontext, the words “ in the opinion of the Court ” had been omitted.Even without them, the burden of satisfying the Court that the premisesare reasonably required for his occupation would be on the landlord.The word “ reasonably ” makes the court the arbiter and not the land-lord. His ipse dixit that the premises are reasonably required for hisresidence would have little value unless his request is supported byevidence sufficient to persuade the Court of its reasonableness. It seemsto me that the words “ in the opinion of the Court ” have been inserted“ ex abundanti cautela ”. Section 8 (c) requires the court to form anopinion whether the premises are reasonably required for the occupationas a residence for the landlord. The tenant’s difficulties do not come intothe matter at all. The only thing that matters is the reasonablenessof the landlord’s requirement. I have so held in the'cases of Fernando v.David (supra), Kantuingara v. David*, and David v. Poulier (supra).
1 Commissioner of Stamps, Straits Settlements v. Oei Tjong Swan and others [1933)A. C. 378 at 389.
Ormerod v. The Todmorden Joint Stock Mill Co. (Lim.), (1882) 51 L. J. Q. B. 348.*(1891) A. C. 666.
(1948) 49 N. L. B. 348.
468
BASNAYAJCE J.—Atukoraie v. Navaralnam.
I think it will not be unprofitable to examine the decisions ofSouth Africa, where the nearest parallel to our section 8 (c) is to befound. Section 14 (1) (c) of the Rents Act, 1942, reads :
“ that the premises are reasonably required by the lessor for hispersonal occupation or for that of his major or married child or childrenor any person in his employ : ”
It is of interest to note that the Courts in that country have construedthe corresponding section* of the earlier Act, 13 of 1920, in the sense Ihave interpreted our section 8 (c). The landlord in the case of Gonsalveso. Thompson1, which is the case I have in mind, was in exactly the samepredicament as the landlord in the instant case. He had several housessome large, some small. He had been away from his country for sometime. When he returned he selected one of his houses in which therehappened to be a tenant with a fairly large family and terminated histenancy, and when he failed to quit instituted action. The tenant’sanswer was that the landlord should have selected one of the smallerhouses because he had a small family—wife and two children. In anyevent the tenant said that although he had advertised in the papers fora house he had not been able to obtain one. He also urged that he wasan old man of 75 and that it would be a great hardship if he was ejectedfrom the house because he had nowhere to go. The judge of first instancedecided in favour of the tenant. But Van Zyl J. allowed the landlord’sappeal from that decision. In doing so he says :
“ I think it is sufficient for a man to show' that he is not living in hisown house ; that all his houses are occupied now ; and that he wantsone of them. It is enough for him to say, ‘ I want one of these and I■want this particular one. ’ It cannot be said, as the magistrate indicatesin his reasons for judgment, that the owner should rather have givennotice to Rodrigues, who lives in a smaller house. After all, if Rodrigueswas given notice, it might be as difficult for him to secure fresh accom-modation as it has been for defendant. No ; I do not think it can bedictated to the owner which house he should take of the several he owns.As long as he satisfies the Court that he ‘ reasonably ’ requires ahouse to live in it must be left to him to say which of his houses hedesires to occupy.”
The view taken by Van Zyl J. in the above case has been followedIn the recent case of Johannesburg Board of Executors cfc Trust Co. Ltd.v. Gordon 2, wherein Millin J. observes at page- 96 :
“ The question is not, who will suffer the greater hardship, theapplicant if the respondent is not ejected, or the respondent if he isejected ; the question is simply whether the applicant has shown thatit reasonably requires the leased premises for its own use.”
In the later ease of Paterson v. Koonin3, Searle A.J. while citing withapproval the words of Millin J. says at pages 342 and 343 :
“ The Court here has to decide whether in all the circumstancesthis requirement is ' reasonable ’ from the point of view of the lessorand it is her needs and circumstances and not those of the lessee
'1 (1922) C. P. D. 477.*(1947) (1) S. A. L. R. 92 at 96.
* (1947) (2) S. A. L. R. 337.
* Vide page 472.
BASNAYAKE J.—Atukorcde v. Navaratnam.
469
which are relevant to thiB inquiry. .. The applicant needs
rooms and as suitable ones exist in her own premises, prima facie itis reasonable that Bhe should claim to occupy them.”
The extent of the onus resting on the landlord appears from the words ofPittman J., in Neufman v. Biggs 1 quoted with approval by Searle A.J.in the case of Paterson v. Koonin {supra) :
“ It is difficult ”, saj's Pittman J., “to see what more can ordinarilybe required of a claimant than that he should assert his good faithand bring some small measure of evidence to demonstrate the genuine-ness of his assertion. He can normally scarcely do more and it restswith the lessee resisting ejectment to bring forward circumstancescasting doubt upon the genuineness of his claim.”
On the question of reasonableness I should not omit to repeat thefollowing words of Dove-Wilson J.P. in Rudder v. Wright2 quotedby Searle A.J., in the case referred to earlier :
“ I do not think it can be said that it is unreasonable for a personwho is the owner of suitable premises to prefer to occupj' them andnot go elsewhere.”
The dicta of the South African Courts I have quoted at length indicatethat, in the interpretation of the rent legislation of that country, carehas been taken to avoid the introduction of ideas from foreign legislation.Although in the case of Henshilivood v. Buske 3 an attempt was madeto introduce concepts gained from English legislation that case has notbeen approved or even followed.
It is not without interest to note that South African Rent legislationhas since 1947 been altered in certain respects and that section 2 (i) ofAct 53 of 1947 makes provision for the Court being satisfied before anorder for ejectment is made that suitable alternative accommodationhas been offered to the lessee and has been refused. The material portionof the section as quoted in the case oi'Groeneu)old v. Pv ott 4 reads :
“ It shall be lawful for a Court to make an order for the recoveryof possession of a dwelling .. or for the ejectment of a- lessee
therefrom based on the fact of the lease having expired either byeffiuxion of time or in consequence of notice duly given if the Court issatisfied :
(i.) that suitable alternative accommodation has been offered tothe lessee since the date of commencement of this Act andhas been refused by him for reasons which to the Court seeminadequate :
(if.) that the lessor reasonably1- requires the said dwelling for hispersonal occupation ..”
{1945) E. D. L. 51 at 54.{1928) N. P. D. 303 at 305.
(1922) C. P. D. 85.
(1948) (1) S. A. L. R. 1238.
470
BASNAYAJLE J.—AtukorcUe v. Navaratnam.
I think the landlord’s claim in the present case is irresistible. Theonus rests on him to persuade the Court that the premises are reasonablyrequired for his occupation as a residence1. He has discharged thatonus, and his appeal is allowed with costs. He is entitled to judgmentas prayed for with costs, and I order accordingly.
Appeal allonJed.
APPENDIX.
•Section 5 of the Increase of Rent and Mortgage Interest (Restrictions) Act. 1920.
Section 5 of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, asre-enacted by section 4 of the Rent and Mortgage Interest Restrictions Act, 1923.
Section 5 of the Increase of Rent and Mortgage Interest(Restrictions) Act, 1920.
(Further Restrictions and Obligations on Landlords and Mortgagees)
Restriction5.—(1) No order or judgment for the recovery of possession of any dwelling-house
on right to to which this Act applies, or for the ejectment of a tenant therefrom, shall be made orpossession.given unless—
(а)any rent lawfully due from the tenant has not been paid, or any other obligation
of the tenancy (whether under the contract of tenancy or under this Act)so far as the same is consistent with the provisions of this Act has been brokenor not performed ; or
(б)the tenant or any person residing with him has been guilty of conduct which is
a nuisance or annoyance to adjoining occupiers, or has been convicted of usingthe premises or allowing the premises to be used for an immoral or illegalpurpose, or the condition of the dwelling-house has, in the opinion of thecourt, deteriorated owing to acts of waste by or the neglect or default of thetenant or any such person ; or
the tenant has given notice to quit, and in consequence of that notice the landlord
has contracted to sell or let the dwelling-house or has taken any other stepsas a result of which he would, in the opinion of the court, be seriouslyprejudiced if he could not obtain possession ; or
the dwelling-house is reasonably required by the landlord for occupation as a
residence for himself, or for any person bona fide residing or to reside withhim, or for some person in his whole time employment or in the whole timeemployment of some tenant from him, and (except as otherwise providedby this subsection) the court is satis fled that alternative accommodation,reasonably equivalent as regards rent and suitability in all respects,is available ; or
the landlord is a local authority or a statutory undertaking and the dwelling-
house is reasonably required for the purpose of the execution of the statutoryduties or powers of the authority or undertaking, and the court is satisfiedas aforesaid as respects alternative accommodation ; or(/) the landlord became the landlord after service in any of His Majesty's forcesduring the war and requires the house for his personal occupation and offersthe tenant accommodation on reasonable terms in the same dwelling-house,such accommodation being considered by the court as reasonably sufficientin the circumstances ; or
(g) the dwelling-house is required for occupation as a residence by a former tenantthereof who gave up occupation in consequence of his service in any of HisMajesty’s forces during the war ;
and, in any such case as aforesaid, the court considers it reasonable to make suchan order or give such judgment.
The existence of alternative accommodation shall not be a condition of an orderor judgment on any of the grounds specified in paragraph (d) of this subsection—
Where the tenant was in the employment of the landlord or a former landlord,
and the dwelling-house was let to him in consequence of that employmentand he has ceased to be in that employment; or(ii) Where the court is satisfied by a certificate of the county agricultural committeeor of the Minister of Agriculture and Fisheries pending the formation of suchcommittee, that the dwelling-house is required by the landlord for the occu-pation of a person engaged on work necessary for the proper working of anagricultural holding ; or
(ill) Where the landlord gave up the occupation of the dwelling-house in consequenceof his service in any of His Majesty's forces during the war ; or(iv) where the landlord became the landlord before the thirtieth day of Septembernineteen hundred and seventeen, or, in the case of a dwelling-house to whichsection four of the Increase of Rent and Mortgage Interest (Restrictions)js Sl 9 Geo. 5.Act, 1919, applied, became the landlord before the fifth day of March nineteen
hundred and nineteen, or in the case of a dwelling-house to which this Actapplies but the enactments repealed by this Act did not apply, became thelandlord before the twentieth day of May nineteen hundred and tewnty,and in the opinion of the court greater hardship would be caused by refusingan order for possession than by granting it.
At the time of the application for or the making or giving of any order or judg-ment for the recovery of possession of any such dwelling-house, or for the ejectmentof. a tenant therefrom, or in the case of any such order or judgment which ha3 been
1 Horvitch v. Fleischmann {1947) (1) S. A. L. JR. 46.
BASNAYAJLE J.—Atukorale v. NavarcUnam.
471
made or given, whether before or after the passing of this Act, and not executed, atany subsequent time, the court may adjourn the application, or stay or suspendexecution on any such order or judgment, or postpone the date of possession, for suchperiod or periods as it thinks fit, and subject to such conditions (if any) in regard topayment by the tenant of arrears of rent, rent, or mesne profits and otherwise asthe court thinks fit, and, if such conditions are complied with the court may, if it thinksfit, discharge or rescind any such order or judgment.
’ Where any order or judgment has been made or given before the passing of thisAct, but not executed, and, in the opinion of the court, the order or judgment wouldnot have been made or given If this Act had been in force at the time when such orderor judgment was made or given, the court may, on application by the tenant, rescindor vary such order or judgment in such manner as the court may think fit for thepurpose of giving effect to this Act.
Notwithstanding anything in section one hundred and forty-three of the County
5152 Viet.Courts Act, 1888, or in section one of the Small Tenements Recovery Act, 1S38, every
c. 43.warrant for delivery-of possession of. or to enter and give possession of, any dwelling-
1 & 2 Viet.house to which this Act applies, shall remain in force for three months from the day
c* 74.next after the last day named in the judgment or order for delivery of possession or
ejectment, or, in the case of a warrant under the Small Tenements Recovery Act, 1838,from the date of the issue of the warrant, and in either case for such further period orperiods, if any, as the court shall from time to time, whether before or after the expira-tion of such three months, direct.
An order or judgment against a tenant for the recovery of possession of anydwelling-house or ejectment therefrom under this section shall not affect the rightof any sub-tenant to whom the premises or any part thereof have been lawfully subletbefore proceedings for recovery of possession or ejectment were commenced, to retainpossession under this section, or be In any way operative against any such sub-tenant.
Where a landlord has obtained an order or judgment for possession or ejectmentunder tills section on the ground that he requires a dwelling-house for his own occup-ation and it is subsequently made to appear to the court that the order was obtained bymisrepresentation or the concealment of material facts, the court may order the landlordto pay to the former tenant such sum as appears sufficient as compensation for damageor Joss sustained by that tenant as the result of the order or Judgment.
Section 3 of the Increase ol Rent and Mortgage Interest (Restrictions)
Act, 1920, as re-enacted by section 4 of the Rent andMortgage Interest Restrictions Act, 1923.
Restriction5—(1) No order or judgment for the recovery of possession of any dwelling-house
•on right to to which this Act applies, or for the ejectment of a tenant therefrom, shall be made orpossession. given unless—
(а)any rent lawfully due from the tenant has not been paid, or any other obligation
of the tenancy (whether under the contract of tenancy or under this Act)so far as the same is consistent with the provisions of this Act has been brokenor not performed; or
(б)the tenant or any person residing or lodging with him or being his sub-tenant has
been guilty of conduct which is a nuisance or annoyance to adjoining occupiers,or has been convicted of using the premises or allowing the premises to beused for an immoral or illegal purpose, or the condition of the dwelling-househas, in the opinion of the court, deteriorated owing to acts of waste by orthe neglect or default of the tenant or any such person, and, where such
S
erson is a lodger or sub-tenant, the court is satisfied that the tenant has not,efore the making or giving of the order or judgment, taken such steps as
he ought reasonably to have taken for the removal of the lodger or sub-tenant ; or
(c) the tenant has given notice to quit, and in consequence of that notice the land-lord has contracted to sell or let the dwelling-house or has taken any othersteps as a result of which he would, in the opinion of the court, be seriouslyprejudiced if he could not obtain possession ; or(if) the dwelling-house is reasonably required by the landlord for occupation as aresidence for himself, or for any son or daughter of his over eighteen yearsof age, or for any person bona fide residing with him, or for some person engagedin his whole time employment or in the whole time employment of sometenant from him or with whom, conditional on housing accommodation beingprovided, a contract for such employment has been entered into, and (exceptas otherwise provided by this sub-section) the court is satisfied that alternativeaccommodation is available which is reasonably suitable to the means of thetenant and to the needs of the tenant and his family as regards extent, character,and proximity to place of work and which consists either of a dwelling-houseto which this Act applies, or of premises to be let as a separate dwelling onterms which will afford to the tenant security of tenure reasonably equivalentto the security afforded by this Act in the case of a dwelling-house to whichthis Act applies ; or
(«) the dwelling-house is reasonably required for the purpose of the execution of thestatutory duties or powers of a local authority, or statutory undertaking, orfor any purpose which, in the opinion of the court, is in the public, interest,and the court in either case is satisfied as aforesaid as respects alternativeaccommodation ; or
(/) the landlord became the landlord after service in any of His Majesty’s forcesduring the war and requires the house for his personal occupation,and offersthe tenant accommodation on reasonable terms in the same dwelling-house,such accommodation being considered by the court as reasonably sufficientin the circumstances ; or
(g) the dwelling-house is required for occupation as a residence by a former tenantthereof who gave up occupation In consequence of his service in any of HisMajesty’s forces during the war ; or
(A) the tenant without the consent of the landlord has at any time after the thiry-first day of July,' nineteen hundred and twenty-three, assigned of sub-let thewhole of the dwelling-house or sub-let part of the dwelling-house, theremainder being already sub-let; or
472
BASNAYAKE J-—Atukorale v. A7avara.tr.am.
51 <fc 52 Vlct.c. 43.
1 & 2 Viet,c. 74.
the dwelling-house consists of or includes premises licensed for the sale of Intoxi-cating liquor, and the tenant has committed on offence as holder of the licenceor has not conducted the busines • to the satisfaction of the licensing justicesOr the police authority, or has carried it on in a manner detrimental to thepublic interest, or the renewal of the licence has for any reason been refused ;and, in any such case as aforesaid, the court considers it reasonable to make such aorder or give such judgment.
The existence of alternative accommodation shall not be a condition of an orderor judgment on any of the grounds specified in paragraph (d) of this subsection—
Where the tenant was in the employment of the Landlord or a former landlord,
and the dwelling-house was let to him in consequence of that employmentand he has ceased to be in that employment; or
(11) where the court Is satisfied by a certificate of the county agricultural committee,or of the Minister of Agriculture and Fisheries pending the formation of suchcommittee, that the dwelling-house is required by the landlord for the occupa-tion of a person engaged on work necesssary for the proper working of anagricultural holding, or with whom conditional on housing accommodationbeing provided, a contract for employment on such work has been enteredinto ; or
(iii) where the landlord gave up the occupation of the dwelling-house in consequenceof his service in any of His Majesty’s forces during the war ; or(lv) where the landlord or the husband or wife of the landlord became the landlordbefore the thirtieth day of June, nineteen hundred and twenty-two, and tnedwelling-house is reasonably required by him for occupation as a residencefor himself or for any son or daughter of his over eighteen years of age ; or(v) Where the landlord or the husband or wife of the landlord did not become thelandlord before the thirtieth day of June, nineteen hundred and twenty-two,and the dwelling-house is reasonably required by him for occupation as aresidence for himself or for any son or daughter of his over eighteen years ofage, and the court is satisfied that greater hardship would be caused byrefusing to grant an order or judgment for possession than by granting it.
At the time of the application for or the making or giving of any order or judgmentfor the recovery of possession of any such dwelling-house, or for the ejectment of atenant therefrom, or in the case of any such order or judgment which has been madeor given, whether before or after the passing of this Act, and not executed at anysubsequent time, the court may adjourn the application, or stay or suspend executionon any such order or judgment, or postpone the date of possession for such periodor periods as it thinks fit, and subject to such conditions (if any) in regard to paymentby the tenant of arrears of rent, rent, or mesne profits and otherwise as the courtthinks fit, and, If such conditions are complied with, the court may, if it thinks fit,discharge or rescind any such order or judgment.
Where any order or judgment has been made or given before the passing of thisAct but not executed, and, in the opinion of the court, the order or Judgment would nothave been made or given if this Act had been in force at the time when such order orJudgment was made or given? the court may, on application by the tenant, rescind orvary such order or judgment in such manner as the court may think fit for the purposeof giving effect to this Act.
Notwithstanding anything in section one hundred and forty-three of the CountyCourts Act, 1888, or in section one of the Small Tenements Recovery Act, 1838, everywarrant for delivery of possession of. or to enter and give possession of, any dwelling-house to which this Act applies, shall remain in force for three mouths from the daynext after the last day named in the judgment or order for delivery of possession orejectment, or, in the case of a warrant under the Small Tenements Recovery Act, 1838,from the date of the issue of the warrant, and in either case for such further period orperiods, if any, as the court shall from time to time, whether before or after the expira-tion of such three months, direct.
An order or judgment against a tenant for the recovery of possession of anydwelling-house or ejectment therefrom under this section shall not affect the right ofany sub-tenant to whom the premises or any part thereof have been lawfully sub-letbefore proceedings for recovery of possession or ejectment were commenced, to retainpossession under this section, or be in any way operative against any such sub-tenants.
Where a landlord has obtained an order or judgment for possession or ejectmentunder this section on the ground that he requires a dwelling-house for his own occupationand it is subsequently made to appear to the court that the order or judgment wasobtained by misrepresentation or the concealment of material facts, the court mayorder the landlord to pay to the former tenant such sum as appears sufficient as com-pensation for damage or loss sustained by that tenant as the result of the order orjudgment.
The provisions of the last Dreceding subsection shall apply in any case where thelandlord has, after the thirty-first day of July, nineteen hundred and twenty-threeobtained an order or judgment for possession or ejectment on any of the groundsspecified in paragraph (d) of subsection (1) of this section, and it is subsequently madeto appear to the court that the order or judgraentwas obtained by misrepresentationor concealment of material facts, and in any such case the court may, if it thinks fit,in addition to making an order for payment of compensation by the landlord to theformer tenant, direct that the dwelling-house shall not be excluded from this Actby reason of the landlord having come into possession thereof under the said order orJudgment, and, If such a direction is given, this Act shall apply and be deemed to haveapplied to the dwelling-house as from the date mentioned in such direction. •
• Section 11 of Act 13 of 1920 (South Africa) :
No order for the recovery of possession of a dwelling-house or for the ejectment of alessee therefrom based on the fact of the lease having expired either by effluxion of timeor in consequence of notice duly given shall be made by any court so long as the lesseecontinues to duly pay, in respect of the dwelling, a reasonable rent therefor andperforms the other conditions of the tenancy, except on the additional ground …
(e) that the premises are reasonably required by the lessor for the personal occupationof himself or of some other person in his employ, or on some other ground which, regardbeing had to all the circumstances, is deemed sufficient by such court.