036-NLR-NLR-V-76-D.-THANGIAH-Appellant-and-M.-YOONUS-and-2-others-Respondents.pdf
ThangiaKv. Toonua
163
1972Present: Wijayatilake,THANGIAH, Appellant, and M. YOONUS and 2 others, RespondentsS. G. 112168—G. B. Matale, 15160
Sent Restriction Act {flap. 274), as amended by Acts Nos, 10 of 1961 and 12 of 1966—' 'Section 12 A (1) (d)—Meaning of “ wanton.destruction ”—Notice to quit—Not
necessary in case of wanton destruction.
Plaintiffs let certain premises to the defendant, a hardware merchant, forpurposes of his trade. The authorised rent was less than Rs. 100.Subsequently, the tenant removed, without the landlord’s permission, a wholewindow frame from the upstair portion of the premises in order to enable himto stack there a heavy load of galvanised pipes and gunnies. Such heavyarticles in which he was trading could not normally be taken up the stairwayof the premises.
Held, that the damage caused-to the premises by the conduct of the tenantwas “ wanton destruction ” within the meaning of that expression in section12 A (!) (d) of the Rent Restriction Act. “ The expression * wanton damage *or ' wanton destruction * does not rule out a wilful act altogether; what isconspicuous being the senseless nature of the conduct. ”
Held further, that once section 12 A (1) (d) of the Rent Restriction Act appliesto a case, it supersedes any rights arising on the tenancy agreement in regard tothe period of notice-to terminate the tenancy.
Ap
PEAL from a judgment of the Court of Requests, Matale.
H. W. Jayatverdene, Q.C., with P. Somatildkam, .for the defendant-appellant.
G. Ranganathan, Q.G., with M. S. M. Nazeem, for the plaintiffs-respondents.
Cur. adv. wilt.
VV1J AY ATI LAKE, J.—Thangiah v. Yoonus
184
January 14, 1972. Wuayatilake, J.—
The plaintiffs let to the defendant, a hardware merchant, for purposesof his trade, the premises bearing No. 526 Trincomalie Street, Matale,on the Agreement P4, the tenancy commencing on 18.2.64. ThisAgreement provides for a monthly tenancy and one of the conditions isthat either party shall give six months’ notice of their intention toterminate the tenancy. It also sets out that at the execution of theagreement the tenant has given to the landlord Rs. 2,250 as security andthat any srilful damage caused by the tenant shall be paid for by the tenantor in default it shall be deducted out of the said security. Although thisAgreement is in writing and signed by Mohamed Yoonus as the landlordwith the authority of his two brothers, the 2nd and 3rd plaintiffs, and by theappellant in the presence of two witnesses it is not notarially attested.The authorised rent of the premises in question is less than Rs. 100.The plaintiffs by letter dated 2.12.65 gave the defendant notice toquit and vacate the premises on or before 17.1.66. It may be noted thatthe tenancy commenced on 18.2.64.
The principal question which has arisen in this Appeal is whethercertain damage caused to the premises let amounts to “ wantondestruction and damage ” as averred in the plaint, and whether suchdamage falls within the meaning of “ wanton destruction or wilfuldamage ” occurring in Section 12A of the Rent Restriction Act 10 of1961 as amended by Act 12 of 1966.
Op the evidence led in this case it is clear that apart from other damageto the premises, Such as broken window panes, a window frame had beenremoved by the tenant from the upstair portion without any intimationto the landlord. The evidence for the plaintiffs is that this appears tohave been removed to enable the tenant to manoeuvre the entry ofgalvanised pipes to the upstair portion with the object of stacking themthere as such articles could not possibly be taken up in the normal wayup the stairway provided in the premises. It is alleged that the stackingof a heavy load of galvanised pipes and gunnies had resulted in the severalcracks to the building.
The tenant sought to explain away the necessity for the removal ofthe window frame as it had got dislodged on its own ; and at a certainstage, when his attention was drawn to the broken window panes it wassuggested that this damage, in particular -was caused by cats ! The“ cat theory ” is so fantastic that one could dismiss it without hesitation.It is worthy of note that at the commencement of the trial the partiesagreed to the learned Commissioner of Requests inspecting the premisesand making an order on this issue ; but later the defendant resiled fromthis undertaking giving a lame excuse that he had not appreciated theimplications of such settlement—despite the fact that he wals representedby counsel! The more one probes into this aspect ©f‘the case the moreit is evident that the defendant fcas removed the window in question toenable him to stack heavy articles he was trading in on the upper freerwhich could not be taken in the normal course up the stairway. In my
185
WIJAYATIL AKE, J.—Thangiah v. Yoorvus
opinion, the damage thus caused comes within the meaning of “ wantondamage or wilful destruction ” within the meaning of section 12A (1) (d)referred to above. No doubt the landlord should have expected histenant, a hardware merchant, to stack hardware both up and down stairsbut he could not possibly have visualised the prospect of a whole windowframe being dislodged for the purpose of storing material which couldnot be taken up the stairs in the normal way. This would certainly notbe a natural or reasonable user of these premiseSi
Mr. Jayewardene, Q.C. submits that the plaintiffs have in their plaintaverred only “ wanton destruction and damage ” and not “ wilfuldestruction ” which the plaintifFs seek to prove in this case. He contendsthat wanton destruction and wilful destruction are not synonymous asthey clearly refer to two distinct mental elements. He has referred meto the meaning of the expression “ wanton damage ” in the case ofArumugam v. Carolis1 67 N. L. It. 84 which was cited by Mr. Ranganathan,
Q.C., where T. S. Fernando, J. comments that in the context in whichwe find it in the Rent Restriction Act, he thinks, that the word (wanton)means “ purposeless ”, and the expression “ wanton damage ” meanspurposeless damage of the kind which irresponsible schoolboys andsoldiers of an invading army have been known to cause on certainoccasions. Mr. Jayewardene stresses the fact that the defendant wasusing the premises for the purpose for which it was rented out and evenif a window frame had to be removed for this purpose it would not bewanton- damage or destruction. Mr. Ranganathan has drawn myattention to the concluding paragraph of this judgment:
“ To partition a house in such a way that the doors thereof cannotbe put to one of their ordinary uses and, having done so, to take a largequantity of heavy articles of furniture over the roof through an upstairwindow causing not inconsiderable damage to the roof was, to mymind, to put the roof to irresponsible use. Notwithstanding that thetenant achieved his purpose of taking the furniture into the house, thedamage caused was reckless and purposeless. It was, in my opinion,wanton damage. ”
On a careful reading of this judgment it may be noted that a personmay have a purpose when he proceeds to act but in seeking to attain suchpurpose he sets about in a senseless and/or reckless manner, when hecould have attained the same object in a sensible manner. So that theexpression “ wanton damage ” or “ wanton destruction ” does not ruleout a wilful act altogether ; what is conspicuous being the senseless natureof the conduct. Even irresponsible schoolboys and soldiers of an invadingarmy may behave in a wanton manner to attain an objeot they have inview—-when they could very well have achieved this end in a more sensibleand sober manner. With great respect, I agree with the conclusionarrived at by Fernando, J. Perhaps^ the headnote to this judgment needsmodification to bring out the essence of the finding which is contained inthe last paragraph of the judgment.
* (1064) 67 N. L. B. 84.
186
Kirimudiyanae v. Assistant Commissioner of Agrarian Services
In the light of my above observations I am of the view that theaverment of “ wanton destruction and damage ” in the plaint is adequate ;as in the instant case too an object has been achieved—namely of bringingin heavy and cumbersome articles of hardware to the upstair portion byremoving a window altogether, without any intimation to the landlord.I need hardly refer to the other damage relied on by the plaintiffs as thedamage I have referred to comes within section 12 A (1) (d) of the Act.
Mr. Jayewardene submits that, in any event, by virtue of the tenancyAgreement the tenant is entitled to six months notice. In my opiniononce section 12A (1) (d) applies it supersedes the rights in regard to noticearising on a tenancy agreement. Mr. Ranganathan submits that thisclause in the Agreement is of no avail to the defendant as the Agreementis not notarially attested. Several conflicting judgments have been citedby both counsel; but I do not think it necessary for me to decide thisparticular question as I am of the view that section 12A (1) (d) supersedesany rights arising on a tenancy agreement in regard to notice. Whethersuch agreement is notarially attested or not would be immaterial in thiscontext. Otherwise the very salutary provisions in section 12A wouldbe rendered nugatory.
The learned Commissioner of Requests in a carefully consideredjudgment has accepted the version of the plaintiffs on the question of“ wanton damage and destruction ” and I see no reason whatever to takea different view. In coming to this conclusion I have constantly keptin mind the prevalent privileges of tenants but to my mind if tenants arepermitted to mess up the premises they rent out in this fashion and thelaw turns a blind eye to such destruction, ultimately, well conductedtenants will stand to suffer considerably as landlords will be slow to rentout their premises not knowing their propensities, not to speak of theircats!
I dismiss the appeal with costs.
Appeal dismissed.