036-NLR-NLR-V-77-D.-U.-PARANAVITHANE-Appellant-and-K.-THEMANIS-Respondent.pdf
DE KRETSER, J.—Paranavithave v. Themanis
18&
1970Present : de Kretser, J.
U. PARANAVITHANE, Appellant, and K. THEMANIS,
Respondent
S. C. 16/68—C. R. Colombo, 91943/R. E.
Rent-controlled premises—Sub-letting—Subsequent change of landlordand continued sub-letting—Right of the new landlord to eject thetenant—Whether notice to quit is necessary—Carrying on anunlicensed eating house in rented premises—Whether it amountsto use for an illegal,purpose—Rent Restriction Act (Cap. 274),as amended in 1961 and 1966, ss. 9, 12 A (1) (b).
Where an unauthorised sub-letting is continued after there is achange of the landlord by attornment, there is a continued breachby the tenant of the statutory provision against sub-letting, andit is open to the new landlord who takes exception to it to takethe remedy provided by the law and have the tenant ejected.
Obiter: (i) Where a tenant sub-lets the leased premises incontravention of the Rent Restriction Act, the landlord is entitledto institute proceedings in ejectment without notice terminatingthe tenancy.
(ii) Where a tenant carries on an eating house in the rentedpremises without a licence from the Municipal Commissioner, thehouse is being put to a purpose forbidden by the law.
A-PPKAL from a judgment of the Court of Requests, Colombo.
H. Rodrigo, with Asoka Abeysinghe, for the defendant-appellant.
S. Sharvananda, with P. Thuraiappa, for the plaintiff-respondent.
Cur. adv. vult.
March 24, 1970. de Kretser, J.—
The Plaintiff Respondent instituted this action seeking to ejectthe Defendant Appellant from the premises bearing AssessmentNo, 98 Pamankade Road, Wellawatte, which premises aregoverned by the Rent Restriction Act as amended in 1961 and1966.
J80
DE KRETSER, J.—Paranavithane v. Themanis
At the trial the Plaintiff raised the following issues : —
Has the Defendant sub-let the premises to one Karunadasa
Edirisinghe without the written consent of theLandlord ?
Has the Defendant used the premises in suit for an illegal
purpose, to wit : to keep an eating house without alicence ?
If Issues 1 and 2 are answered in the affirmative, is the
Plaintiff entitled to a decree for ejectment ?
Damages.
The learned Trial Judge answered Issue I in the affirmativeand Issue 2 in the negative. He entered decree for ejectment on
with damages at Rs. 43.45 as from 1.7.66 and the Defendanthas appealed.
I am satisfied after a scrutiny of the evidence in the light ofthe submissions of Counsel, that the Trial Judge was correct inhis finding of fact that the Defendant had sub-let the premisesto Edirisinghe without the consent of Plaintiff, his landlord, towhom he had attorned when the Plaintiff bought the premiseson PI, Deed No. 1648 of 20.1.65.
The receipts produced to show the subletting establish thatthe subletting had taken place at a time prior to the purchaseof these premises by the Plaintiff and had continued thereafter.It is Plaintiff’s case that when he found out that there had beena sub-letting by the Defendant, he filed this action.
Counsel for the Appellant relied on the judgment dated 17thJanuary 1968 of Sirimane, J. sitting alone in the case of BerthaWalles v. D. V. Hector Silva 1 reported in 70 N. L. R. 308 whichheld that “ where a tenant sublets a rent controlled premiseswithout the permission of the landlord a person who subsequent-ly purchases the premises from the landlord is not entitled toeject the tenant on the ground of sub-letting which had beendone when he was not the landlord ”. In this judgment Sirimane
J.referred to the judgment of Basnayake C.J. with whom K. D.de Silva J. agreed in Ratnasingham v. Kathirasamy2 decided inDecember 1956 and reported in 58 N. L. R. at Page 476 in whichthey held the contrary view. Sirimane J. did not follow that viewfor he was of opinion that the right to sue accrued to the landlordat the time of the sub-letting and did not pass to the Purchaserwho stepped into the shoes of the Seller in the absence of anassignment of the right to sue for the breach of contract whichhad accrued to the Seller.
(196S) 70 N.J:.R. 308.
(1956) 58 N.L.B. 476.
DE KRETSER, J.—Paranavithar.e v. Themania
187
The point was argued once again in Thaha v. Sadeen1 72 N.L.R..142 before Panditha Gunawardene J. who preferred to followthe decision in Ratnasingham v. Kathirasamy. “ It is correct ”said he “ that the act of sub-letting it is that gives rise to the•cause of action, but to hold that if a sub-letting is done on aparticular day therefore the cause of action can only arise tothe Landlord who on that particular day was the Landlord ofthe premises is, I think, not in accord with a common sense
approach to the situationmy interpretation of this
section is that at whatever time it is discovered that thepremises have been sub-let, then on that the cause of actionarises. What the section implies is that at the time of commenc-ing action the subletting should subsist; there should be inexistence a subtenant in the premises. ”
A consideration of these decisions and the relevant provisionsof the Act make me come to the conclusion that where a sub-letting is continued after there is a change of the landlord, thereis a continued breach by the tenant of the statutory provisionagainst sub-letting and that it is open to the landlord who takesexception to it to take the remedy provided by the law and havethe tenant ejected. ‘
Counsel for the Appellant also submitted that notice wasnecessary to terminate the tenancy and that the notice given inthis case was bad in law. No issue in regard to notice was raisedin the lower Court nor was the point taken in the petition ofappeal.
In the case of Wimalasuriya v. Ponniah2 52 N. L. R. 191Basnayake, J. held that where a tenant sub-lets the leasedpremises in contravention of Section 9 of the Rent RestrictionAct, No. 29 of 1948, the Landlord is entitled to institute proceed-ings in ejectment without terminating the tenancy by notice.This decision has been followed in John Singho v. Marion Beehee 373 C.L.W. 107 by Wijayatilake J. In my view the submission ofCounsel at the hearing of the appeal which he did not enlargeon, that in view of the amendment No. 12 of 66 to the RentRestriction Act, notice would be necessary in view of theprovisions of Section 12 A (1) (b) of that Act, is without meritfor that section does not do more than provide that the factthat the standard rent of a premises does not exceed Rs. 100.00a month is no bar to a Landlord to file action where the premiseshave been sub-let without the written sanction of the landlord.In my view therefore the Plaintiff in this case would have beenentitled to file action on the ground of sub-letting without noticeterminating the tenancy but the Plaintiff has in fact given notice—vide Pll—on 29.7.65 to the tenant to deliver possession on 1st
1 (1968) 72 N.L.R. 142.* (1951) 52 N.L.R. 191.
* 73 C.L.W. 107.
• 1S8
Dinoris Appuhamy v. Sophie Nona
October 1965, and in my opinion if notice was necessary thenotice given was good in law for I agree with the reasoning inHaniffa v. Sellamutlu1 decided by T. S. Fernando, J. and SivaSupramaniam, J. and reported in 70 N. L. R. page 200.
It appears to me also that the learned Trial Judge should haveanswered Issue 2 in favour of the Plaintiff for the evidenceclearly establishes that the Defendant had pleaded guilty tocarrying on an eating house in these premises without a licencefrom the Municipal Commissioner in breach of a by-law of theMunicipal Council and had been fined Rs. 25.00. To have aneating house in a premises a licence is necessary and if there isno licence it appears to me that the house is being put to apurpose forbidden by the law. In the case of Abraham Singho v.Ariyadasa2 Weeramantry, J. held that a sale of arrack in apremises in contravention of the provisions of the ExciseOrdinance is the use of premises for an illegal purpose whichwould entitle the landlord to file action to eject the tenant.
I dismiss the appeal in this case with costs payable by theDefendant to the Plaintiff.
Appeal dismissed.