Chittambalam v. De MelIAmaratunaa. J.)
CHITTAMBALAMvDE MELCOURT OF APPEALAMARATUNGA, J. ANDWIMALACHANDRA, J.
C., MT. LAVINIA 601/2000/RE
Writ pending Appeal – Substantial question of law – Premises excepted – RentAct, No. 7 of 1972, section 2(4)C – Benefit – Is there an onus on plaintiff toestablish that he was in occupation of premises on 01.01.1980?
Held:(1) What is relevant under section 2(4) C is not whether the plaintiff himselfoccupied the relevant premises on 01.01.1980, as its owner butwhether the premises were occupied on that day by its owner (whetherit be the plaintiff or not is immaterial) or by a tenant.
APPLICATION for leave to appeal from the order of the District Court of Mt.Lavinia.
Case referred to:(1) Hettiarachchci v Hettiarachchi – (1994) 2 SRI LR 188R.E. Thambiratnam with K.M. Sasangan for petitioner.
Upali de Almeida for respondent.
October 20, 2004
GAMINI AMARATUNGA, J.This is an application for leave to appeal against the order allow-ing plaintiff respondent’s application to execute the decree pendingappeal. In the action filed by the plaintiff for the recovery of premis-es No. 27/1, Melbourne Avenue, Colombo 4, and for the other reliefclaimed in the plaint, judgment was entered for the plaintiff. Afterthe defendant-petitioner filed an appeal against the judgment the
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plaintiff filed an application to execute the decree pending thedetermination of the appeal.
The defendant-petitioner had filed his objections to the plaintiffsapplication. Thereafter the parties have agreed to conclude the inquiryby filing written submissions. After both parties filed their written sub-missions, the learned judge has made order dated 21.9.2004 allow-ing the plaintiff’s application to execute the decree pending appeal.This application is against that order. On 23.9.2004, upon the exparteapplication of the defendant-petitioner, this court issued an order stay-ing the execution of the writ of possession. Upon the appearance ofthe plaintiff respondent, submissions of both parties were heard onthe question of granting leave to appeal and the continuation of thestay order.
In his objections the defendant has stated that if execution pend-ing appeal is allowed, it would result in causing substantial loss tohim. In addition he has also stated that a substantial question of lawexists to be decided in the appeal.
The substantial question of law urged was whether the premisesin question is premises to which the Rent Act applied. The learned trialJudge in the judgment dated 10.2/2003, has held that the premises inquestion was premises exempted from the provisions of the Rent Actunder section 2(4) (c) of the said Act.
The Premises in question is situated within the limits of theColombo Municipal Council. According to the evidence led in the casethe premises earlier belonged to the plaintiff’s mother who occupied iton 1st January 1980 and at that time the plaintiff also occupied thesame premises along with her mother. The plaintiff became the ownerof the premises in 1986 upon a deed executed by her mother. It wasalso in evidence that the premises were let to the defendant in 1986upon a deed executed by her mother. It was also in evidence that thepremises were let to the defendant in 1998. Section 2(4) (c) of theRent Act which is relevant reads as “residential premises occupied bythe owner on January 1 st 1980 and let on or after that date.” The pro-visions of the Rent Act do no apply to such premises.
The submission was made to us that in order to claim exemp-tion under the above provision the plaintiff should have occupiedthe premises in question on 1.1.1980 and since the plaintiff was not
Chittambalam v. De Mel
the owner as at that date the plaintiff could not claim the benefit ofthat provision and accordingly the question whether the plaintiff dis-charged her burden to establish that the provisions of the Rent Actdid not apply to the premises in question is a substantial questionof law to be decided in the appeal. In support of this contention thecase of Hettiarachchi v Hettiarachchi 0) was cited.
Reliance was placed on the judgment of G.P.S. de Silva, CJ. 50where His Lordship has said that in order to claim the benefit ofsection 2(4)(c) the onus is on the plaintiff to establish that he wasin occupation of the premises on 1st January 1980. (2nd paragraphappearing in page 189). The learned Counsel for the petitioner laidgreat stress on the word plaintiff used by the learned Chief Justice,to support his contention that in order to claim the benefit of section2(4)(c) the plaintiff in the present case had to show that she asowner occupied the premises as at 1.1.1980 and as the clear evi-dence was that she was not the owner as at… 1980, she was notentitled to claim the benefit of section 2(4)(c).60.
It is clear that His Lordship the Chief Justice has used the word“plaintiff' in the passage referred to above on the facts of that par-ticular case. However the section does not refer to a plaintiff or tothe landlord. Section 2(4)(c) as a definition of the premises to whichthe provisions of the Rent Act do not apply. In his judgment HisLordship has very clearly set out what is to be considered in decid-ing whether section 2(4)(c) is applicable. I quote below the relevantpassage.
“Turning now to the wording in section 2(4)(c) of the Rent Act, itseems to me that the distinction drawn is between premises occupied 70by the owner as at 1st January 1980 and premises which had beenlet to a tenant on the said date, as submitted by Mr. Samarasekera forthe plaintiff-appellant Mr. Samarasekara rightly stressed that the sec-tion is concerned with the nature of the occupation and the questionof title is irrelevant, (page 190, emphasis added).
What is therefore relevant is not whether the plaintiff herselfoccupied the relevant premises on 1.1.1980 as its owner, butwhether the premises were occupied on that day by its owner(whether it be the plaintiff or not is immaterial) or by a tenant. Onthat aspect, the undisputed evidence was that as at the relevant so
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date, the plaintiff’s mother who was the owner of the premisesoccupied it. This evidence clearly brings the premises in questionwithin section 2(4)(c) of the Rent Act. Therefore the substantialquestion of law the petitioner sought to point out does not exist atall.
The complaint was also made that in deciding whether thepremises in question is exempted from the provisions of the RentAct, the learned trial Judge has applied the provisions of theamending Act, No. 26 of 2002 which cannot be taken into accountin deciding the present case. It is true that the learned judge has 90referred to that Act, but the judgement indicates that the case hasbeen decided without relying on the provisions of the amending Act.
The other substantial' question of law raised by the learnedcounsel was that after the period for which the premises were let,the defendant petitioner had become a statutory tenant. Howeverthe evidence was that before the expiry of the period of- the lease,the plaintiff has terminated the lease by notice marked and pro-duced as P4. Accordingly the question of considering whether thedefendant could claim the benefit of the concept of statutory tenantdoes not arise.100
The defendant-petitioner has not given evidence at the trial or inthe inquiry relating to execution pending appeal. The learned Judgehas therefore concluded that in the absence of any evidence relat-ing to substantial loss, the defendant-petitioner has failed to provethat execution of the decree would cause him substantial loss. Thesubmission of the learned counsel for the petitioner was that thepetitioner has paid as rent a large sum in excess of the rent payablefor the premises and since evidence of such over payment is avail-able on record in the case, it is not necessary to prove the same atthe inquiry by giving evidence again.11c
However the claim that there was over payment of rent wasbased on the contention that the premises in question are governedby the provisions of the Rent Act. Once it is decided that thepremises do not come within the provisions of the Rent Act, thequestion of over payment does not arise.
For the reasons set out above, I agree with the conclusion of thelearned Judge that the defendant-petitioner has failed to satisfy
Seylan Bankv. Thangavell
Court that execution pending appeal would result in causing sub-stantial loss to him or that there are substantial questions of law tobe decided in the appeal. Accordingly there is no basis to grant 120leave to appeal against the order dated 21.9.2004. The leave toappeal application is therefore dismissed with costs in a sum ofRs.2500/-.
WIMALACHANDRA, J.I agree.
CHITTAMBALAM v. DE MEL