CANTHIAH v. MUTTIAH CHETTY

074-NLR-NLR-V-18-CANTHIAH-v.-MUTTIAH-CHETTY.pdf


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1915.
Present: Ennis J. and De Sampavo A.J.
CANTHIAH v. MUTTIAH CHETTY.
110—R. Colombo, 42,284.
EvidenceOrdinance, *.02—Leaseofhousesand grounds—Magoral
evidence be led to prove that house was leased to be used as arice store?—House- prohibited to be used as a rice store btj authorities—
Cancellation of lease—Remission of rent.
Plaintiff brought ibis action to recover rent due on a notariallease.Thedefendantpleadedthat priorto the execution of the
leaseit was agreed betweenthepartiesthattheplaintiff should
effectcertain alterations to thepremises so as tolitthem for arice
store,andlease thesame to defendant,and that after the lease
wasexecuted, in consequenceofcertainplagueregulations,the
defendant was prohibitedby theauthorities fromstoring rice in
the said premises. There was no provision in the deed to indicatethe purpose for which the premises were to be used. The defendantprayed in reconvcntion that the deed of lease be cancelled, and hebe declared entitled to a remission of all rent payable thereunder.
Held, thatit was notopen tothe defendant tolead oral evidence
to prove that both parties agreed and intended that the premisesshould be Tit for and bo used as a rice store.
fj^HE facte are set out in the judgment- of De Sampavo A.J.
linivu K. C.(with himJ. 8. Jayewanlene), forappellant.—The
defendant is atrader in rice, whoadvanced largesums of money
1 (1014) 17 .V.//. i204.2 (1014) 17 N. L. R. 381.
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to the plaintiff to enable him to convert the premites leased into a IMS*rice store. The defendant is unable, through no fault of his own, Catuhiah v.to have commodious use of the leased premises. The Roman- Muttiah *Dutch law under such circumstances not only permitted a reeisionof the rent due, but also a cancellation of the lease. (Voet 29, 8, 23.)
Among the just causes for quitting, Voet mentions (a) incursion ofthe enemy or brigands whom the tenant could not resist, (b) gpeotreshaunting houses, and pestilence.
In the present case it was the outbreak of plague which inducedtiie authorities to prohibit the use of the rice store as such. [EnnisJ.—But the deed does not speak of a rice store; it says " houses andgrounds.”]
The defendant is entitled to prove, under section 92, sub-section• (2) of the Evidence Ordinance, that the parties contemplated aparticular mode of use of the ” houses and grounds.” It is a matterupon which the deed is silent, and not inconsistent with its terms.
Counsel cited Witte on Landlord and Tenant, pp. 408 and 403;
L. R. 10 Q. B. 174.
Arutanandam (with him A. St. V. Joyewardene), for respondent.—
If in the converse case the landlord had sued for a cancellation ofthe lease, on the ground that through some unforeseen cause rentalin that locality had trebled and that the leased premises could be putto an infinitely better use than a rice store, the Court would notgrant relief. Why, then, should the lessee be entitled to relief ?
Vis major has only prevented the tenant from using the houseas a rice store. All that the landlord is bound to do is to assureto the tenant the commodious use of the premises. The tenantis free to use the store for any other purpose but storing rice. Ifhe has nothing else to store, there is nothing to prevent him fromsub-letting the premises.
The case is covered by authority (S N. L. R. 313). The oralevidence sought to be led is not merely explanatory of " houses and'grounds,” but seeks to add to the terms of .the notarial lease. This,is repugnant to the provisions of section 92.
Bawat K.C., in reply.
Cur. adv. vuli.
May 7, 1915. Ennis J.—
In this case the plaintiff sued for the recovery of Rs. 116.50,rent due on a lease of certain property in Bankshall street. Thereis no evidence in the case, which has been decided on the avermentsof fact in the plaint and answer. The plain! avers the plaintiffleased to the defendant an undivided half share of certain “ housesand grounds ” in Bankshall street tor a term of five years. Theanswer admits this fact, and asserts that prior to the execution ofthe lease the plaintiff and other owners of the property entered into.
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ah agreement with the defendant by which they undertook to 'makecertain alterations and repairs to the premises “ so as to be used asa rice store,” end then to lease the premises. It is admitted thatthe alterations were made, and that after the execution of the leaseand the payment ‘ by the defendant of several months’ rent theMunicipal authorities prohibited the use of the premises as a ricestore; the defendant thereupon quitted the premises and refusedto pay further rent, on the ground that it had become impossiblefor him to enjoy the use.
One of the ^issues framed was, " Can the agreement to lease as arice store be proved by parpl evidence ?” It is conceded that ifevidence is inadmissible to prove this, the decree of the learnedCommissioner of Bequests is right and that the appeal should bedismissed.
The point is one of considerable difficulty. The lease wasapparently silent as to the use to which the houses and grounds ”were to be put, and so far as I can see an agreement to lease themas a rice store would not necessarily be inconsistent with the tennsof the lease, but in this matter the degree of formality of the documenthas to be considered. Further, the evidence may be admissible onthe ground that the term ” houses and grounds ” does not trulyrepresent the facts. In view of the importance of the point, 1 thinkit desirable that the appeal should be heard before a Bench of twoJudges, and refer it accordingly..
June 15, 1915. Ennis J.—.
The facts of this case and the points for consideration on theappeal are set out in my reference of May 7. By consent of partiesa certified copy of the lease has been read. This document is of sucha formal character that, in my opinion, it bars the admissibility ofevidence of the existence of a separate oral agreement as contem-plated in the second proviso to section 92 of the Evidence Ordinance.I Jim unable to see how the evidence is admissible under the first andthird proviso to that- section, and .there remains for considerationwhether the evidence would be admissible under the sixth proviso,to show in what manner the language of the document is relatedto existing facts. It was urged that the properly leased was, in fact,a rice store, and that it was the intention of the parties that the” houses and grounds ” leased should be used as a rice store. Forthe respondents the case of Boustead v. Vandetspat & Co. 1 wascited. Wood Benton J. in that case drew particular attentionto the fact that the distinction between evidence explanatory ofthe words used and evidence of the intention of the parties mustnot be lost sight of in cases such as these. In the present case, itseems to me that the evidence the appellant desires to adduce goesbeyond a mere explanation of the words " houses and grounds ”
> (190$) 8 N. L. R. 318.
Euwts J.
Cantkiak v.MuttiakChatty
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used in the lease: it seeks rather .to add to the contract a furtherexprey ion of the intention of the parties as to ther use to which thehousr. shoJ7. he- put~-* use which might possibly be implied hadthe t entrap used the expression “ rice store instead of the words“ hojses aud grounds.** In the circumstances I am of opinion thatthe evidence is inadmissible, and would divides the appeal.
1915.
Ennis J.
Canthiak *MwttiahGhettp
De SaPAYO A.J.—/
f/
Tb s appeal "reives a question to the admissibility of oralevidence under .the following circumstances. The plaintiff bydeed of lease No. 620 dated November 17, 1913, leased to thedefendant certain premises for a period, of five years commencingfrom January 1, 1914. This action is brought for the recovery ofrent due under the lease for the month of November. 1914. Thedefendant, among other things, pleaded that prior to the executionof the lease it was agreed between the parties that the plaintiffshould effect certain alterations to the premises so as to fit themfor a rice store, and lease the same .to the defendant, that he advancedcertain moneys to the plaintiff for that purpose, and that upon the.execution of the lease he entered into occupation of the premisesthereunder; and he proceeded to allege that in consequence ofcertain plague regulations he was prohibited by the authoritiesfrom storing rice in the said premises, and that thereby it becameimpossible for him to use the same as a rice store. He accordinglyprayed in reeonvention that the deed of lease may be cancelledand he be declared entitled to a remission of all rent payable there-under. At the trial an issue was stated as to whether the allegedagreement to lease the premises as a rice store could be proved by-parol evidence. Tbe Commissioner of Bequests ruled against thedefendant on this issue, and the defendant has appealed.
There is no doubt that under our law, if a lessee cannot havebeneficial use of the premises for the purpose for which they havebeen let, he may quit the premises without being responsible to* thelessor for the rent, and the Boman-Duteh authorities cited by Mr.Bawa on this point need not, therefore, be discussed or referred to.The only question before the Court is as to the admissibility of oralevidence to prove the purpose for which the premises are alleged tohave been leased. The deed of lease was not filed in the Courtbelow, but we accepted in evidence, with the consent of both parties,a certified copy of the document. The deed, both in the body ofit and in the schedule, describes the premises as " all those housesand grounds bearing assessment Nos. 13, 14, 15, 16, 17, and 18,situated at Bankshall street, &c., ” and there is no provision orexpression in the instrument indicating the purpose for which thepremises were to be used. The defendant, however, proposes to calloral evidence to prove that both parties agreed and intended thatthe premises should be fit far and be used as a rice store. Can he do
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1$M>. this in view of seotion 92 of the Evidence Ordinance ? It seems to meDb Samfayo that the attempt is to introduce into the written agreement betweenA.J. the parties a matter of substance affecting their rights and liabilitiesCanthiah v. and dearly to add to its terms, and this cannot be allowed unlessMititiak the defendant brings • himself within one or other of the provisosto that section. The provisos which may by any possibility applyare proviso (2) and proviso (0).
Proviso (2) enacts that “ the existence of any separate oral agree-ment as to any matter on which a document is silent, and which isnot inconsistent with its terms, may be proved. " This in effectmeans that, if the whole agreement is not and is not intended to becontained in the document, but is partly oral and partly documentary,the document.may be supplemented by oral evidence; but then theproviso goes on to say, that, ** in considering whether or not thisproviso applies, the Court shall have regard to the degree of formalityof the document.’* This lease is not only a notarial instrument, asit should be under Ordinance No. 7 of 1840, but in respect of itsprovisions is as formal as possible, and if the words last quoted donot apply to it, it is difficult to think of any document whoseformality would exclude oral evidence. In support of this part ofhis argument Mr. Bawa cited Angell v. Duke.1 There the defendanthad prior to the letting of a messuage to the plaintiff promised toeffect certain repairs, and thereby induced the plaintiff to becometenant, and the action was brought for the breach of that promiseas an independent contract distinct from the contract of tenancy.The Court held on demurrer that the promise did not relate to aninterest in land within section 4 of the Statute of Frauds, and thatan action could be maintained upon it though not in writing. Thatdecision is no authority for the defendant’s contention, for here it issought to prove the oral agreement as constituting an integral partof the contract of lease, and the claim in reconvention is based noton the oral agreement but on the written lease.
Proviso (6) does not help the defendant either. The object ofthis proviso is to allow extrinsic evidence to explain the languageof a document so as to fit it with external things. The language ofthis deed with regard to the subject of the lease does not requiresuch explanation. The premises leased are certain " houses andgrounds," and this description fits the circumstances, for they arehouses and grounds, " though, if you choose, you may call thema rice store. What the defendant in reality wishes to do is not toexplain the meaning of '* houses and grounds, ’’ but to prove thepurpose for which they were to be used by the lessee, and thus toadd to the written contract a term which is not. contained in it.This distinction is pointed out in Boustead v. Vanderspar & Co. 2In my opinion the appeal fails, and should be dismissed with costs.
i
Appeal dismissed.
» L. R. 10 Q. B. 174.3 (190$) 8 N. L. R. 318.