DEEN v. DISSANAYAKE

016-SLLR-SLLR-2001-V-2-DEEN-v.-DISSANAYAKE.pdf


DEEN
v.DISSANAYAKE
COURT OF APPEALWIGNESWARAN, J.TILAKEWARDANE, J.
A. 348/92(F)
C. COLOMBO 7541/REMAY 12, 1999
JUNE 21, 1999SEPTEMBER 2, 1999JANUARY 24, 2000
Rent Act, No? 7 of*1972 – S. 10(1) – Subletting – Long occupation of aRoom – Boarders – Exclusive possession and occupation.
Held:»
The essence of sub-letting Is that the sub-tenant must be –
In exclusive occupation of a part of the premises originally let;
such part being a defined and separate portion over which;
the tenant had relinquished his right of control
for the time being;
in consideration of the payment of rent
A boarder is not a sub tenant –
Long occupation of a room by a lodger does not create a tenancy.APPEAL from the Judgment of the District Court of Colombo.
Cases referred to :
A. L. T. Peiris v.L.T.P. De Zoysa – 73 NLR 557
Raja v. Visvanathan – Srikantha’s Law Report – Vol. II page 77
Suppiah Pillai v. Muthu Karuppan Plllai – 54 NLR 572 at 575.
Britto v. Swamtkannu – 74 NLR 209 at 214.
CA
Deen v. Dissanayake(Wigneswaran, J.)
133
M. H. John Singho v. Marian Beebee – CLW Vol. 75, 107
Hussain v. Ratnayake – 69 NLR 421
F. C. Perera for Substituted Plaintiff – Appellant.
P. A. D. Samarasekera, P. C., with Keerthi Sri Gunawardena forSubstituted Defendant – Respondent.
Cur. adv. vult.
January 24, 2000.
WIGNESWARAN, J.
The original Plaintiff filed this action against the originalDefendant for ejectment on the grounds of arrears of rent andsubletting, for the recovery of arrears of rent, damages and costs.
The original Defendant denied being in arrears of rent andalso denied subletting.
The issues raised were limited to subletting.
After trial the District Judge of Colombo by judgment dated28.08.1992 dismissed the Plaintiff’s action with costs.
This is an appeal against the said judgment.
The only question to be considered in this case is whetherthe evidence led by the Plaintiff was sufficient proof of the fact ofsubletting of a portion of the premises in suit. The District Judgeconcluded that issue No. 1 based on subletting was “not proved”.
It was the contention of the original Plaintiff that the originalDefendant without his written permission had sublet a portionof the premises in suit to a number of persons thus convertingthe residential premises in suit to an unlicensed boarding house.(Vide para 4 and 5 of the plaint – page 24 of the Brief). Neitherthe portion sublet nor the persons whom such portion wassublet was described in the plaint.
134
Sri Lanka Law Reports
[2001J 2 Sri L.R.
The Plaintiff himself and a broker by the name of GeorgeWalter Aloysius Perera gave evidence on behalf of the Plaintiff.PI to P6 were led in evidence. The Defendant’s son gave evidenceon behalf of the Defendant. D1 to D4 vgere led in evidence.
The facts enumerated by the Plaintiff and his witness brieflyare as follows
The original Plaintiff purchased the premises in suit whilethe original Defendant was already a tenant.
Only from broker Perera did the original Plaintiff cometo kjjow that the premises in suit had been sub-let toboarders.*’
-*
Broker Perera came to occupy a room in the premises insuit which was already in the occupation of three others.They all shared the room each having a bed.
Each occupant of the room had a duplicate key to theroom. Some occupants paid for occupation only whileothers paid for food as well. (Vide page 54 of the Brief).The occupants came in and went out with the permissionof the original Defendant. No single occupant hadcomplete control over the room (Vide page 56 of the Brief).
At this stage it is appropriate to examine the provisionsof Section 10(1) of the Rent Act No. 7 of 1972.
M10. (1) For the purpose of this Act, any part of tinypremises shall be deemed to have been let or subletto any person, if, and only jf, such person is in exclusiveoccupation, in consideration of the payment of rent,of such part, and such part is a defined and separatepart over which the landlord or the tenant, as thecase may be, has for the time being relinquished hisright of control; and no person shall be deemed to bethe tenant or the subtenant of any part of any premisesby reason solely of the fact that he is permitted touse a room or rooms in such premises
CA
Deen a. Dissanayake(Wiqneswaran, J.)
135
The essence of subletting is that the sub-tenant must be –
in exclusive occupation of a part of the premisesoriginally let,
such part being a defined and separate portion overwhich,
the tenant had relinquished his right of control,
for the time being,
in consideration of the payment of rent.
Clearly in this case what has been ma^e outcby witnessPerera is that he was a boarder. He had no exclusive occupationnor exclusive right of control of a part of the premises since hehad to share it with others unknown (at the time of entry) andhis ingress and egress were controlled by the original Defendant.
Thus the question that arose for consideration by thelearned Additional District Judge, Colombo was whether aboarder could be considered as a sub-tenant.
In A. L. T. Petris Vs. L. T. f? De Zoysam it was held that atenant of rent controlled premises is not liable to be ejected onthe ground of “sub-letting’ if the evidence, taken as a whole,shows that the occupants (other than the tenant) are boardersand not sub-tenants.
In Raja Vs. Visvanathxmm the Court of Appeal rejected theargument that long occupation of a room by a lodger createdtenancy.
Justice Gratian in Suppiah Pillai Vs. Muttu KaruppanPillai{3) at 575 interpreting Section 9(1) of the Rent RestrictionAct No. 29 of 1948 stated that the essential test in every case iswhether there is evidence from which one can infer that there isat least some part of the premises over which the tenant has, byagreement, placed the sub tenant in exclusive possession.
136
Sri Lanka Law Reports
1200112 Sri L.R.
Justice Weeramantri in Britto Vs. Swamikannul4> at 214confirmed that our Courts had laid down the necessity forexclusive possession of a defined area as a requisite to the proofof subletting.
Wijayatillake, J. in M. H. John Singho Vs. Marian Beebeei5)stated that there should be proof that the sub tenant had theexclusive possession and occupation of a separate portion ofthe premises.
The evidence of broker Perera in this case brought out thefact that the Original Defendant was still in control of the areaoccupied by the said witness and that he himself had noexclusive possession over such area.
Therefore wefind that a boarder such as broker Perera didnot fall into the category of a sub tenant as envisaged by Section10(1) of the Rent Act. (Vide Hussain Vs. Ratnayake)l6) Thelearned District Judge was therefore right in holding thatsubletting had not been established in this case.
We therefore dismiss the appeal of the substituted Plaintiff-Appellant with taxed costs payable to the substituted Defendant-Respondent.
TILAKAWARDANE, J. – I agree.
Appeal dimissed.