059-NLR-NLR-V-51-BRITO-MUTUNAYAGAM-Appellant-and-HEWAVITARANE-Respondent.pdf
GRAT1AKN J.—lirilo Mutunnyagam v. Hewavitarne
-37
1950Present: Gratlaen J.
BRITO M17TUNAYA GAM, Appoint, owl HK W AVITARNK,Respondent
S. C. 146—C. R. Colombo, 15,767
Rent Restriction Ordinance—Premise# reasonably required for landlord* son or daughterover eighteen years of age—Can tenant be ejected ?—Ordinance No. 60 of 1942,proviso to «. h.
The words “ dependent on him r’ in the proviso to section J> ol' the KentRestriction Ordinance qualify “son or daughter over eighteen years of ago ”ns well as those classes of relatives described in the later part of the sentence.A landlord, therefore, is not entitled to claim the promises on the ground thatthey are reasonably requirod for occupation as a residence for bis son or daughterwho is over eighteen years of age, unless t he hitter is nlso proved to be dependenton him.
.^^.PPBAL from a judgment of the Commissioner of Requests, Colombo.H. T Per era, K.C., with 6'. ./. Kadirgmnar, lor defendant appollaut-
A. Hayley, K.C., with If. 1). C tivusekeya, for plaintiff respondent.
Cur. atlv. raft.
February Mi, 1950. Gratiaes J.—
This has been a difficult case to determine, and I am very consciousof the fact, as the learned Commissioner has been, that a decisionfavourable to either party necessarily involves some measure of hardshipto the other.
’ In lie Moxon {1945) 2 AU E. ii. 124 at 130.
* The American Thread Co. v. Joyce, 6 Tax Gases 21.
-38t.iUATIAlN* J.—Hrlt-, tfulunayagam v. Heivavitariif
The plaintiff Mrs. Hewavitame is the owner of premises No. 445,Galle Raid, Kollupitiya, whicii the defendant, who is a Dental Surgeon,has occupied as hor tonant since 1931. The ground floor is constructedfor use as a Dental Surgory, and it is common ground that tlio defendant•has in the course of yoars established thoro a large and lucrative profes-sional practice. On the floor above is a self-contauiod residential flatwhich the defendant occupied at an earlier period of his tenancy. Later,he sublet this flat and moved to another residence, retaining the surgery•bclmv for his professional work. This action is concerned with thepromises on the ground floor from which the plaintiff socks to havethe defendant ejected in the circumstances which 1 shall now relate.The monthly rent for this portion is Rs. 95.
In October, 1947, one of the plaintiff s daughters married Mr. R. T.Ratnatunga who is a member of the Public Service. Ho was at thattime engaged in official duties at Anuradhapura, but very shortly after-wards lie was transferred to the Ministry of Agriculture in Colombo.Ho was unablo to find a suitable residence for himself ami his wife inColombo, and the defendant agreed to place the residential flat, togetherwith the g&rago, at their disposal. The tenancy of this part of thepromises accordingly terminated, mid Mr. and Mrs. Ratnatunga havebeon in residence there since January, 1918. A child was bom in August,1948, and in anticipation of this happy event tho plaintiff gave thedefendant notice to quit the surgery, stating that it was roquired toprovide her married daughter with additional residential accommodation.Mr. and Mrs. Ratnatunga would naturally prefer to occupy a morospacious residence if it were available.
Mr. Ratnatunga has stated in evidence, and it is not. denied, that- thedefendant had previously agreed that- when Mu* family increases hewould think of folding out another place to go to The defendant’sposition is that lie has been unablo to obtain any other place suitablefor his surgery, and he accordingly claimed the protection of the RentRestriction Ordinance of 1942 which was applicable to the promises atthe relovant date.
Tho plaintiff cannot succeed in the present action unless she cansatisfy tho Court that, taking into account among other factors, thehardship and ineonvenienco which would bo caused to the defendantif a writ of ejectment were to bo enforced against him, the premises are“ reasonably required ” for occupation as a residence for a member ofher family (as defined in the proviso to section 8 of tho Ordinance).
It must first be decided whether Mrs. Ratnatunga is a “ memberof tho family ” of the plaintiff within the meaning of the Ordinance.This phrase is defined in the Ordinance as moaning 11 the wife (of thelandlord) or any son or daughter of his over eighteen years of age, or anyparent, brother or sister dopondent on him ”, The circumstance thatthe landlord is a lady presents no problem in the case, becauso wordsimporting tho masculine gondor must for purposes of interpretation betaken to include females. The difficulty which does arise, however,is whether the words "dependent on him” qualify “son or daughterover eighteen years of age ” as well as those classes of relative described
GKATJAEN J.—Brito Mutunay«gam v. Hewaviinrne239
in a lator part of tho sontence. If ono were permitted to pay duo regardto tho commas appearing in the official reprint of a statutory enactment,I should be inclined to the view that the doubtful privilege of dependenceis not a pre-requisite to the status of a son or daughter on whoso accounttho landlord may ask for a judicial decree to eject his tenant. It is.however, a well-established canon of construction that- marks ofpunctuation are not to bo taken as part of a statute—Maxwell on Interpre-tation of Statutes (9th. Ed.) p. 45. If therefore the commas in the sentencewhich I am called upon to interpret be ignored, I think, though notwithout hesitation, that the contention submitted by Mr. H. V. Pererais correct. In that view, the bonds of relationship do not by themselvesentitle tho claims of a landlord’s son or daughter over eighteon yearsof ago to be recognised unless he or she is also proved to l>e dependent-on him in the sense in wiiich that term is popularly undorstood. Thelanguage in the section is at least ambiguous, and should, I think, beconstrued in favour of the tenant for whoso protection the Rent- Res-triction Acts have been specially enacted during a period when housingaccommodation is notoriously scarce. I see no special roason why,if Parliament doos not say so in unequivocal terms, the right- of a tenant,to remain in occupation should Ik? surrendered in favour of an o ai. incipu.icdchild of a landlord on whom that child does not depend lor shelter orsubsistence. Tito pattern of the corresponding provision in the EnglishAct to which I have beon referred is different, and would serve as anunreliable guide to a solution of tho present problem. The interpretationwhich I prefer seems to mo to safeguard tenants without unduly penalis-ing landlords, (Vide in this connection tho observations of Lord Greene,then Master of the Rolls, hi Gumming v. Da won *).
In til© view which I have taken, it follows that tho plaintiff's actionfails at tho outset. It is not suggested that jMrs. Ratnatunga, whois married to a Government official, is any longer dependent on hermother, and she does not therefore fall within the class of poisons toono of whom the defendant can bo callod upon to hand ovor the promiseswhich are not required by the plaintiff for her own use. Indeed, thealternative interpretation would, from a practical standpoint, result inadding “ sons-in-law ” to the statutory group comprising the inemborsof a landlord’s family. The premises aro in reality required by Mr.Ranatunga for tho use of himself and the family unit of which he is thehead.
As the interpretation of tho soction which I adopt has been reu.ch.odwith some diffidence, I shall proceed to express my opinion on the meritsof the case upon the assumption that the premises could, in law, havebeen claimed for Mrs. Ratnatunga’s use.
The parties to tlio action have, as one would expect from personsin their position, explained their respective difficulties with refreshingfrankness. Tho learned Commissioner, in describing tho position ofMr. and Mrs. Ratnatunga, holds that considering the status of theplaintiff's son-in-law, who is a member of tho Ceylon Civil Service, thoportion occupied by him is not quite sufficient for their occupation, therebeing only one bedroom, and they have a child ". The available1 (11)43) L. .1. K. B. U).
1’40k.VJ’lAJiX J.—Brito MuUinat/uguii* v. Hmracitarn-:
accommodation consists of one large bedroom, a largo dining-room-and-sitting-room combinid, a kitchen, a bathroom and a lavatory. There arealso two small cubicles, and a suitable garage has boen provided by thedefendant. 1 do not doubt that a little extra accommodation wouldmake for greater comfort, but it seems to me that many married coupleswith an infant child would under tho difficult conditions of to-dayregard the inconveniences to which this young couple is subjected ascomparatively insignificant.
The learned Commissioner is satisfied that the defendant has madea genuine attempt to find suitable alternative accommodation for hissurgery, but without success. It was suggested that the defendantcould attend to his patients in tho houso at Bambalapitiya where henow resides, but he considers that arrangomont to be unsuitable; hepoints out that his surgical instruments would be corroded owing to thesea air, and that his practice would be affoctod by the suggested changeof establishment. The learned Commissioner holds in his favour that‘ the place (No. 44o. Gallo Road) has boen his dental surgery for overseventeen years, fitted up with all the necessary instruments ”, and that“ a transfer from this place to Glenaber Place would result in a loss inhis practice as a Dental Surgeon, in addition to damage to bis instrumentsby corrosion ”. The defendant’s cvidenco, which has not been challengedou the point, is to the effect that the expenditure immediately involvedin removing his surgery elsewhere, and in dismantling his various surgicalimplements which are fitted into the floor of the prosont establishmentwould amount to approximate!)' Rs. 4,000. This sum alone representsthree and a half years value of the rental which he now pays to theplaintiff.
The learned Commissioner has taken the view that tho hardshipswhich the defendant would suffer “ do not outweigh the owner's needfor the house for occupation as a residence for Mr. and Mrs. Ratn&tungaWith great respect. I cannot agree. On the one hand, it must l>e remcm-Iwred that Mr. Ratnatimga's terms of employment in the Public Servicedo not exclude the possibility of transfer to somo other station, whereasthe defendant has practised his profession in the premises for eighteenyears, and desires to enjoy without interruption the advantages of anestablished goodwill in the locality. Mr. Ratnatunga ami his wife andinfant child now reside in a flat which is admittedly small hut which manyother families of equal status would, I fancy, greatly envy. He hadapplied for a Government bungalow in February. 1948, but the claims ofother officers were considered more urgent by tho allocating Committeeafter an inspection of the accommodation which ho now enjoys. Thiscircumstance is a pointer to the difficulties which other public servantsundergo at the present time. I think that, on a balance of convenience,it would unquestionably cause greater hardship to the defondant if howere ordered irrevocably to vacate his surgery than if the present arrange-ments were to continue, with some inconvenience to Mr. and Mrs. Ratna-tunga, for what might prove to be a period of limited duration.
I sot aside the order appealed from, and enter decree dismissing theplaintiff’s action with costs in both Courts.
A ppeal allowed.