070-NLR-NLR-V-70-BERTHA-WALLES-Appellant-and-D.-V.-HECTOR-SILVA-Resondent.pdf
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SIRIMANE, J.—Walles v. Hector Silva
1968Present:Sirimane, J.BERTHA WALLES, Appellant, and D. V. HECTOR SILVA, RespondentS. C. 7167—C. R. Colombo, 90549
Rent-controlled premises—Sub-letting—Sale of premises thereafter by landlord—Pur~chaser has no right to eject the tenant on the ground of the prior sub-letting—Action which is null and void ab initio—Subsequent amendment of plaint toinclude a valid claim—Effect—Rent Restriction Act (Cap. 274), s. 9 (7) (2)—Rent Restriction (Amendment) Act, No. 12 of 1966, ss. 2, 4 (1)—Civil ProcedureCode, s. 93—Sub-letting—Quantum of evidence.
Where a tenant sublets rent-controlled premises without the permission of hialandlord, a person who subsequently purchases the premises from the landlordis not entitled to eject the tenant on the ground of the sub letting which hadbeen done when he was not the landlord.
Ratnasingham v. Cathirasasioamy (58 N. L. It. 476) not followed.
An action which is declared by law to be null and void ab initio cannot begiven validity by a subsequent amendment of the plaint so as to include avalid claim. Accordingly, where, prior to the date when the Rent Restriction(Amendment) Act No. 12 of 1966 came into operation, a landlord institutedaction for ejectment of his tenant on the ground that the rented premises werereasonably required for his own use, he is not entitled to give validity to thoaction after the amending Act was passed, by amendment of the plaint allegingthat the defendant had sublet the premises.
A landlord who seeks to show that his tenant had sublet part of the rentedpremises must esiablish that the alleged sub-tenant had exclusive occupation ofan identifiable entity to the exclusion of tho tenant.
.A.PPEAL from a judgment of tho Court of Requests, Colombo.
11. V. Perera, Q.C., with M. L. de Silva, for the defendant-appellant.
Ranganathan, Q.G., with B. Bodinagoda, for the plaintiff-respondent.
Cur. adv. vult.
January 17, 1968. Sirimane, J.—
The plaintiff purchased the premises in question in December 1964.At the time of his purchase the defendant was the tenant of these pre-mises, and in fact had been in occupation as a tenant for about twenty-four years before the plaintiff’s purchase. On 19.4.65 the plaintiff filedaction for ejectment on the ground that tho premises were reasonablyrequired by him for his occupation.
SIRIMAI'TE, J.— Wattes v. Hector Silva
309
About a year later (on 7.5.66) the plaintiff moved to amend the plaintalleging that the defendant had sublet the premises to one “ Kulendranand/or Shanmugam and/or Mrs. Madawela and/or Miss Rasiah ” withoutspecifying the dates of the alleged sub-letting. This amendment had beenallowed, and an amended plaint was filed on 23.5.66.
In the meantime the Rent Restriction (Amendment) Act, Xo. 12 of 1966(hereinafter referred to as the Amending Act), was passed on 10.5.66,according to the provisions of which “ reasonable requirement ” by thelandlord was no longer a ground for ejectment of the tenant. Thedefendant’s position was that certain other people who occupied thepremises with her were her boarders and not sub-tenants.
The Commissioner accepted the evidence that Miss Rasiah had been asub-tenant of the defendant from September 1964 to April 1965, andgranted the plaintiff a decree for ejectment on that ground. This findingof fact was strongly assailed and it was urged that Miss Rasiah (a Phar-macist) was a convenient ■witness found by the plaintiff (a doctor) tosupply a deficiency at a late stage in the case.
Assuming, however, that the finding of fact is correct, one sees that thesub-letting had been done before the plaintiff’s purchase. Section 9 (1) ofthe Rent Restriction Act, Chapter 274, provides that the tenant of anypremises to which the Act applies shall not sublet without the prior con-sent in writing of the landlord. Sub-section 2 of that section then goeson to say, “ where any premises or any part thereof is sublet in contraven-tion of the provisions of sub-section (1) the landlord shallbe
entitledto a decree for ejectmentof his
tenant, andof the persons to whom the premises or any part
thereof has been so sublet ”.
When does the right to a decree for ejectment under this section arise ?It arises on the subletting. A sub-tenancy continues from month tomonth ; but the subletting is done on a particular day. and it is this act ofsubletting that gives rise to the right.
To whom does the right accrue ? In my opinion it accrues to thelandlord at the time of the sub-letting.
When a sale takes place the purchaser no doubt steps into the shoes ofthe seller as a singular successor to title, and, on the principle that hiregoes before sale, a tenancy or a sub-tenancy will continue with thepurchaser as the new landlord.
But, rights of action which have accrued for breaches of the contract oftenancy do not pass to the purchaser unless there is an assignment of thoserights. If, for example, a tenant has defaulted in payment of rentwhen A was his landlord ; and A thereafter sells the premises to B, then
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SIRIMANE, J.— Walles v. Hector Silva
the purchaser B cannot sue the tenant for ejectment on the ground thathe has been in arrears of rent. Voet says (book 19, title 2, section 19,Gane’s translation, page 428) :
“ On the other hand also whenever by statute or custom sale gives
place to lease a particular successor is only bound to bear up to the end
with a resident in occupation or a tenant in enjoyment if the lessee is
ready to pay the rents to him for the ensuing period.”
Similarly, if a tenant has sublet premises without the permission ofthe landlord a purchaser cannot eject the tenant on that sub-letting,particularly so, if the sub-tenancy has terminated at the time he comesinto Court.
I am unable to accept the argument of learned Counsel for therespondent that once a tenant sublets in contravention of section 9 of theRent Restriction Act he renders himself liable for ejectment not only bythe landlord at that time, but by any of his successors in title. Accordingto this argument if a tenant sublets premises without permission from hislandlord even for a month, then a subsequent purchaser can sue thetenant for his past act of sub-letting even though there are no sub-tenantsat the time he brings his action. Section 9 (1) of the Rent RestrictionAct is not a punitive section and the right to a decree for ejectmentdoes not in the context of that section accrue to a person other than thelandlord at the time of the subletting.
My attention was drawn to the case of Ratnasigham v. Cathirasasamy x>where a contrary view has been expressed. The learned Judgeswho decided that case were of the view that the definition of theword “ landlord ” in the Rent Restriction Act as “ the person for the timebeing entitled to receive the rent ”, enabled any landlord of the premisesat any time after the subletting to sue for a decree for ejectment. Withgreat respect, I am unable to share this view. The definition of theword “ landlord ” is of little assistance in construing the true meaning ofthe section. The real question is whether a person for the time beingentitled to collect rent is entitled to sue for a decree for ejectment on theground of a subletting which had been done when he w as not the personentitled to collect rent.
The appeal must succeed on this ground even assuming that MissRasiah’s evidence that there w'aB a subletting is correct.
I pass on to the second ground urged in the appeal.
It is admitted that the standard rent of the premises is below' Rs 100per month. In the case of such premises section 2 of the Amending Actprovides that no action or proceeding for the ejectment of the tenant shallbe instituted in or entertained by any Court except on four grounds, viz.—
Rent being in arrears for three months or more,
Subletting without the landlord’s written consent,
The premises being used for an immoral or an illegal purpose, and
Wanton destruction or wilful damage being caused to the premises.
1 (1956) 58 N. L. B. 476.
SIRIMANE, J.— WaJle-a v. Hector SUva
311
Section 4 (1) makes these provisions effective retrospectively from20.7.62 and proceeds to enact that—
e: accordingly any action which was instituted on or after that dateand before the date of commencement of this Act for the ejectment ofa tenant from any premises to which the principal Act as amended bythis Act applies shall, if such action is pending on the date of com-mencement of this Act, be deemed at all times to have been and to benull and void.”
For the purpose of giving it retrospective effect one has to assume thatthis section was in operation on 19.4.65 when this action was instituted onthe ground that the premises were reasonably required by the landlord.So that the action must “ be deemed at all times to have been and to benull and void”". No doubt, an amendment does, for certain purposes(e.g. for purposes of prescription), relate back to the date of the plaint.But an application to amend pleadings is a step (under section 93 of theCivil Procedure Code) in a valid action pending before a Court. An actionwhich is declared to be null and void o.k initio cannot, by an amendment,be given validity.
The appeal must succeed on this ground too. Lastly, there is thequestion of fact.
Miss Rasiah’s evidence has to be viewed with the utmost care and circum-spection. She did say that she paid Its. 75 per month and occupied acertain part of the house. This evidence was flatly contradicted by thedefendant who said that Miss Rasiah was a boarder brought in by hermother whom the defendant had known earlier. The mere fact that adoor leading to the rooms they occupied had been closed does not neces-sarily negative the fact that they could have been boarders ; nor even thefact that they had been seen doing some cooking—(assuming that thisevidence is true). It would be an unsafe inference to draw from MissRasiah’s evidence that she had exclusive occupation of an identifiableentity to the exclusion of the tenant.
The plaintiff then called one Mr. Oliver Wijesinghe, an AssistantRegistrar-General, whose evidence apparently impressed the Commissioner.He had been a neighbour of the defendant for about four years andwould surely have known whether the plaintiff had sublet any part of thepremises. In the course of his evidence he said that for the first timethe plaintiff asked him in 1966 as to who was staying in the premises inquestion in 1965. and went on to say “ then I gave him a list of names. Asto whether they were living as boarders or as sub-tenants I do not know ”,
The learned Commissioner has failed to consider this evidence, whichis certainly not inconsistent with the version of the defendant. Whenone considers all the circumstances in this case it seems to me that thedefendant’s version was the more probable one.
The appeal is allowed, and the plaintiff’s action is dismissed with costsin both Courts,
Appeal allowed.