SANSONI, J".—Muthuivcera v. Chandrasomo
1963Present: Sansoni, J.
D. MUTHUWEERA, Appellant, and MRS. G. C. CHANDRASOMA,
S. C. 122/1960—G. R. Colombo, 75,155
Rent Restriction Act (Cap. 274)—Section 13 (1) (cl— “ Reasonable requirement. ” —
Burden of proof.
Plaintiff sought to eject her tenant (the defendant) on the ground that therented premises were reasonably required by her for her occupation as a residence.The Commissioner did not reject the defendant’s evidence relating to hisattempts to find alternative accommodation. Nor did he consider the evidenceconcerning the relative financial situations of the two parties. He gave judg-ment for the plaintiff solely on the ground that the defendant had failed toestablish the truth of his charge that the action was instituted because of therefusal of the defendant to accommodate the plaintiff by giving her a certainpremium which she demanded.
Hefd. that the Commissioner was guilty of serious misdirection by putting theonus on the wrong party. The question whether the plaintiff reasonablyrequired the premises could not possibly be answered by asking oneself whethershe also asked for a premium. It could only be answered after weighing theevidence led for either party, and seeing at the end whether the plaintiff hasdischarged the burden that lies on every plaintiff in a civil case
y^PPEAE from a judgment of the Court of Requests, Colombo.
P. J. Kurulculasooriya, with N. M. S. Jayawiclcreme, for theDefendant Appellant.
W. Jayeivardene, Q.C. with L. Kadirgamar and E. St. N. D.Tillelceratne, for the Plaintiff-Respondent.
Cur. adv. vult.
April 1, 1963. Sansoni, J.—
This is an action for rent and ejectment brought by a landlord againsther tenant on the ground that the rented premises are reasonablyrequired by her for her occupation as a residence within the meaning ofSection 13 (1) proviso (c) of the Rent Restriction Act, Cap. 274. Thotenant disputed the landlord’s claim, but he lost in the lower Court andhe has appealed.
The tenancy was entered into in May 1955. The rent agreed on wasRs. 99 ‘50 a month, and there can be no question that it was paidregularly.
JSAJfSONI, J. — Muthuzv?cra v. Chandrasoma
One matter of dispute between the parties was whether a sum ofRs. 3,600 was paid as a premium by the tenant to the landlord when thecontract of tenancy was entered into. The learned Commissioner hasheld, that it was, and his finding was not challenged before me. Thetenant alleged that a further such sum was demanded from him by thelandlord at the end of February 1958, payable at the expiry of three yearsfrom the commencement of the tenancy, his position being that he hadpaid the sum of Rs. 3,600 as the equivalent of 36 months’ excess rent atthe rate of Rs. 100 a month. The learned Commissioner has rejected theDefendant’s evidence on this point. I have considered his Counsel’ssubmissions, but I do not think t should interfere with this finding offact either.
The only question left is whether the plaintiff has proved that the pre-mises were reasonably required by her. I shall first sot out the respectivepositions of the parties. The plaintiff owns, apart from the house indispute, which bears assessment No. 95, 5th Lane, the adjoining houseNo. 97 which is occupied by a tenant who pays Rs. 600 a month. She hastwo houses in Sea Avenue which bring in Rs. 500 and Rs. 450 a monthrespectively. She also owns some semi-detached houses and tenementswhich between them bring in a monthly rent of Rs. 250. Her husbandreceives a monthly salary of Rs. 4,000. They have four children ; two ofthem are being educated in England, one is receiving medical treatment inEngland, and one child is in Ceylon where he attends a school in Colombo.The plaintiff has stated that a sum of Rs. 1,850 a month has to be remittedto England for the three children who are there. She has also stated thatshe has borrowed Rs. 60,000 from an Insurance Company for certainimprovements to her house, and her other liabilities total about Rs. 10,000.
The defendant is a Government Servant drawing a salary of Rs. 702 ‘35a month. He is married and has no children of his own, but he is bringingup two children of his nieces : they are about 7 years old and attend schoolin Colombo. He has no property of his own, and he has said that hecannot afford to pay much more than he is doing as house rent. So muchfor the financial position of the respective parties.
The plaintiff, when she filed this action, was living in a house which hadbeen lent to her and her husband, but in accordance with an undertakingwhich they had given they left that house pending this action and wentinto a flat in Sulaiman Avenue, Jawatte Road, paying a rent of Rs. 350a month. Their landlord has given evidence for the plaintiff, and it isnot suggested that they have to leave that flat. The defendant, on theother hand, has said that he has tried to find alternative accommodation
SANS ONI, J.—Muthuweera v. Chandrasoma
anywhere within Colombo Municipality, but all his efforts have beenfruitless. The main obstacle, according to him, is that he has to pay keymoney of about Rs. 3,000 which he cannot afford to do.
The plaintiff's objections to living in the fiat are that it has no spareroom, that her child has no garden to play in, and that there is no suitableroom in which she can entertain guests. If her husband entertains guestsat a hotel, presumably for business reasons, Ms employers meet the bill.According to her landlord, the flat consists of two bed rooms, 17' X 10'and 14' X 16' respectively, a hall and dining room combined, a kitchen,a garage and a balcony 5' wide and rmining the whole length of thebuilding.
The defendant has given a detailed description of Xo. 95, 5th Lane.It has no garage. It has one bed room, 9' x 15'; three small rooms whichare about 8' X 8', a drawing room and dining room adjoining each other,no store room or servant’s room, and a garden 25' X 30', which he says isbelow the road level and goes under water in rainy weather. I very muchdoubt if such a house is suitable for occupation by a person employed asthe plaintiff's husband is ; and I find it very difficult to accept theplaintiff’s statement that, out of the houses she owns, it is the mostsuitable for her occupation.
The learned Commissioner, after considering the reasons which theplaintiff gave for filing this action, has stated this in his judgment :“ Unless the defendant satisfies Court that this requirement of plaintiff ismala fide and this action has been filed by plaintiff because of Ms refusalto accommodate her by giving her a further premium, I have no alter-native but to hold that plaintiff requires the premises for her use and occu-pation as a residence ”. I consider this a grave misdirection whichvirtually vitiates the ultimate conclusion to which he has come.
The question whether the plaintiff reasonably requires the premisescannot possibly be answered by asking oneself whether she also askedfor a further premium. It can only be answered after weighing the evi-dence led for either party, and seeing at the end whether the plaintiffhas discharged the burden that lies on every plaintiff' in a civil case. Ifthe defendant’s charge had been established, he would have succeeded inshowing that the plaintiff was not acting bona fide, and nothing more;but he is also entitled to show that the plaintiff is not acting reasonablyin requiring possession. She must show “ a genuine present need ” forthe house and not be “ moved by considerations of preference and con-venience merely ”. The fact that the defendant failed to establish thecharge he made against the plaintiff cannot possibly affect the questionwhether the plaintiff reasonably requires this house, and although it is
SANS ONI, J.—Mulhuweera v. Chandrasoma
unfortunate that the plaintiff may not be able to live in a house thatbelongs to her, that is a situation which is not uncommon in view of theprotection which the Rent Restriction Act gives to a tenant by requiringthe landlord to prove that the house she owns is " reasonably required ”by her.
The plaintiff in this case has a flat for her occupation, and althoughshe is only a tenant of it there is no suggestion that she holds it on a pre-carious tenure. I doubt if, apart from the garden, house No. 95 has anyamenities that the flat cannot provide. The financial position of theplaintiff, when compared with that of the defendant, is so much better,that any hardship caused to the plaintiff by the higher rent she has to payfor the flat is more than set off by the hardship which would be caused tothe defendant if he has to leave No. 95 without a suitable alternative as aresidence, or if he has to pay key money for another residence.
Mr. Jayawardene asked me not to interfere with the learned Commis-sioner’s order, and he cited the well-known case of Coplans v. King L ■It was there held that Parliament deliberately made the County CourtJudge in England the conclusive Judge on the question of hardship. ButI cannot also ignore the later decision of the Court of Appeal in Piperv. Harvey 2, where Lord Denning said “ It is undoubtedly the law thatif it is just a matter of weighing the balance of hardship, that is a matterfor the Judge himself who hears the case, and is not a matter in whichthis court can interfere. This court can only interfere if on all the evi-dence there is only one reasonable conclusion to be come to, or, alterna-tively, if the judge has misdirected himself on the facts or on the evidence.Hodson, L. J. agreed and made the following remarks : “ The tenant hasnot been able to say anything more than the minimum which everytenant can say, namely, that he has in fact been in occupation of thebungalow, and that he has not at the moment any other place to go to.But he has not sought to prove anything additional to that by way ofhardship in the way of unsuccessful attempts to find other accommodation,or indeed to raise the question of his relative financial incompetence ascompared with the landlord ”. This is just what the defendant in thiscase has done.
The Court of Appeal ultimately set aside the judgment of the CountyCourt Judge in that case. I feel I should do the same thing here, chieflybecause the learned Commissioner has been guilty of the serious mis-direction to which I have already drawn attention, by putting the onus onthe wrong party. He has not rejected the defendant’s evidence relatingto his attempts to find alternative accommodation and he has notconsidered what bearing the relative financial situations of the twoparties should have on the main issue. If he had done so, I think hewould have held that the plaintiff had failed to discharge the burden thatlay on her.
I set aside the judgment under appeal and dismiss the plaintiff’s actionwith costs in both Courts.
1 (1947) 2 A. E. R. 393.
2 (1958) 1 Q. B. D. 439.
D. MUTHUWEERA, Appellant, and MRS. G. C. CHANDRASOMA, Respondent