028-NLR-NLR-V-73-D.-MARLIN-PERERA-Petitioner-and-K.-D.-S-JAYAWARDENA-Respondent.pdf
H. N. G. FERNANDO, C.J.—■Marlin Perera v. J ayawardcna
121
1969 Present: H. N. G, Fernando, C.J., and Saraerawickrame, J.MARLIN PERERA, Petitioner, and• K. D. S. JAYAWARDENA, Respondent
S. C. 590/GS—Application for Conditional Leave to appeal to thePrivy Council in S. C. 87/67 C. R. Colombo 93G79/RE
Privy Council—Application jor conditional leave to appeal—Petitioner a monthlytenant of premises let—Valuation of subject matter—Effect of Pent PestrictionAct—Appeals (Privy Council) Ordinance (Cap. 100), Schedule, Pule J (a).
Where & monthly tenant, who hail erected a temporary building upon bareland lot to him by tho landlord, sought Icavo to appeal to tho Privy Councilns of right against a decrco for ejectment—
Held, that tho application should bo refused. In such a case it is tho tenancyright, and not tho rented premises, which requires to be valued for tho purposoof determining whether tho tenant can claim leave ns of right under Rulo 1 (a)of tho Privy Council Rules. However wido tho protection which tho RentRestriction Act effords to tenants, there is nothing in tho Act which evenpurports to affect tho rules which regulato tho right of appeal to tho- PrivyCouncil.
Application for conditional leave to appeal to the Privy Council.
Colvin R. de Silva, with Miss Maureen Seneviralne and Justin Perera,for tho defendant-petitioner.
C. Ranganathan, Q.C., with B. J. Fernando, for the plaintiff-respondent.
Cur. adv. vult.
December 17, 1969. H. N. G. Fernando, C.J.—
This was an application for conditional leave to appeal to the PrivyCouncil from a judgment of this Court. The application was dismissedafter the hearing on 17th December I960, and I now state the reasons.
The plaintiff had in an action in the Court of Requests sued the presentpetitioner, hereinafter referred to as the “defendant”, for ejectmentfrom a certain land, averring that the defendant had entered into posses-sion of the land as a tenant of tho plaintiff at a rental ofRs. 250 per month.The defence pleaded was that tlie premises to which the action relatesarc governed by the Rent Restriction Act, and that the defendant cannotbe ejected therefrom. This defence was rejected on the ground1 that thesubject of tho tenancy was bare land, and did not include any building,and are not “ premises to which the Rent Restriction Act appliesIt would appear that the only building on the land was a smalltemporary structure which tho defendant had erected and which he usesfor the purpose of his business as a repairer of motor vehicles. The
Lxxxn—6
J I i730—2,255 (7/70)
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H. Nr. G. i'ERXAXDO, C'.J.—Jfartin Pcrera v. Jayauiardctta
decree of the Commissioner of Requests for ejectment was affirmed bythe judgment of the Supreme Court in appeal, and the presentapplication is for leave to.appeal from that judgment.
The defendant claimed to be entitled to appeal as of right in terms ofRule 1 (a) of the Privy Council Appeals Rules, and furnished an affidavitfrom an approved valuer estimating that the land occupied by thedefendant is worth about Rs. 30,000, and assessing the "occupancy value”at over Rs. 5,000. Counsel for the plaintiff in appeal conceded that'if the. value of the land is the proper criterion to be applied in this case, anappeal will lie as of right; he contended, however, that the propercriterion is not the capital value of the land and that the value of thodefendant’s claim or right must depend on tho value of the tenancytogether with the value of his right to compensation for the building.The building itself has been valued at Rs. 150.
The criterion for which the plaintiff’s Counsel contended was acceptedby tho Privy Council as being the right test in a case from Palestine(1948 A.C. 1), in which also a tenant had erected a building upon landlet to him by the landlord. On. the application of this test, the defendant'sapplication must clearly fail, since the rent in this case, was a paltryRs. 2‘50 per month, and the value of the building is only Rs. 150.
In the cited case, the judgment of the Privy Council stated that whathad to be determined was the value to the appellant "that the RentRestriction Ordinance should be held to give him protection against anorder to vacate the land leaving on it a building which cost £450 toerect ”. Counsel for the defendant argued before us that this dictummeans that account must be taken of the profits which a tenant canreasonably be expected to derive from the business which he carriedon in the rented premises. While I agree that the dictum is .capable ofsuch a meaning, what was determined in the casewasthat the " valuetothe appellant ” was made up of the value of the tenancy right, estimatedby reference to the actual rent, plus the value of the building erectedby the tenant. If a tenant’s profits be taken into account, there wouldresult the inconsistency that different premises having the same capitalvalue and commanding the same amount of rent can yet be held to havefor their respective tenants values which vary according to the differencesin the business profits derived by the tenants. I am unable to acceptas valid a test which can allow a right of appeal to one tenant of a shopin a row of identical shops, while denying a right of appeal to anothersuch tenant.
In Kaliappa Pillai v. Cassim1 T. S. Fernando J. reluctantlyheld that in the case of an appeal to the Privy Council by thetenant of rent-controlled premises, the value of the property(i.e.,- the capital value of the premises) is the determining factor. Hepurported to follow the decision of the Privy Council in an appealfrom Cast Africa – (1954 A.C. SO). • But in' that case, it wasthe landlord,. and not the tenant, who sought leave to appeal* (1961) 63ft. L. B. 199.
Edwin v. The Queen
123
in an ejectment action. Their Lordships explicitly stated that“ looked at from the angle of the landlords, the value of the property,vacant possession of which they were claiming, was correctly taken on acapital value basis " ; and they added that “ it by no means necessarilyfollows that the result would have been the same if the tenants had beenthe applicants These observations were cited in the judgment inKaliappa Pillai v. Cassim, but it seems to mo with respect that the forceof these observations was not appreciated. Their implication is thatwhen a tenant socks leave to appeal against a decree for ejectment, the.value of the claim must be ,= looked at from tho angle of the tenantFrom that angle, it is the tenancy right, and not the rented premises,which require to be valued; and the value of the tenancy right mustsurely bear some' relation to the term of the contract of tenancy and tothe amount of tbe rent. To hold that the value of the tenancy right inrent-controlled premises must be equated to the value of the premises,or to Rs. 5,000, is not to determine the value of the right, but instead toassign quite arbitrarily to that right a value requisite to entitle the tenantto a right of appeal against a decree of this Court. However wide theprotection which the Rent Restriction Act affords to tenants, there isnothing in the Act which even purports to affect the rules which regulatethe right of appeal to the Privy Council. On a proper application ofthose rules, the petitioner in this case is clearly not entitled as of right toappeal to tho Privy Council. No other ground was urged in support ofhis application.
For those reasons, the application for leave to appeal was dismissedwith costs.
Samerawickrame, J.—I agree.
AppliMt ion dismis&ed.