E. DEVAIRAKKAM, Appellant, and C. D. SAMARASINGHE, Respondent

004-NLR-NLR-V-65-E.-DEVAIRAKKAM-Appellant-and-C.-D.-SAMARASINGHE-Respondent.pdf


IS
HERAT, J.—Devairokham v, Batnaraeingba
vr
Present: Herat, J.
DEVADRAKKAM, Appellant, and C. D. SAMAR ASINGHE,
Respondent
S.G. 114 of 1961—C. R. Colombo, 72098
Bent Restriction Act—“ Sub-letting "—Business carried on by tenant on the premise*
let—Effect of lease of the business.
Where a tenant of rent-controlled premises, who carried on a business therein,leased the business to another person and moved on toother premises, where heopened a new business—
Held, that the lease of the business did not amount to sub-letting of thepremises in which the business was carried on,
Charles Appuhamy v. Abeysekera (1954) 56 N. L. R. 243, followed.
Appeal from a judgment of the Court of Requests, Colombo.
S. Sharvananda, for the 1st Defendant-Appellant.Nimal Senanayahe, for the Plaintiff-Respondent.
October 4, 1962. Herat, J.—
The circumatancee in which the appeal arises axe as follows: the plaintiffrespondent admittedly let certain premises in G&lle Road, Dehiwela, to the1st defendant-appellant, who carried on a business of oilman stores anddealer in provisions under the name of Jayarajan & Co.
The deplorable communal riots of 1958 caused the 1st defendant-appellant to lease the business Jayarajan & Co. to the 2nd defendant-appellant and to move on to certain other premises at Bamb&l&pitiya,where the 1st defendant-appellant opened a new business.
^ cm Marthelia v. The Queen
19
One can understand this move on the 1st defendant-appellant’s part.The premises at Dehiwela were certainly more isolated from the point ofview of the community to which the first defendant-appellant belongedthan the premises in Bambalapitiya. However, the plaintiff-respondentsought to recover the possession of the Dehiwela premises on the groundThat although they were protected premises within the meaning of theRent Restriction Law the 1st defendant-appellant, without the plaintiff’sconsent in writing being first obtained, had sub-let the same to the2nd defendant-appellant.
The question is whether, in fact, the transaction which the 1st defendant-appellant entered into with the 2nd defendant-appellant was a transactionof sub-letting in the eyes of the law ? The transaction between these twoparties is embodied in the document D1 and a careful perusal of that witha simple knowledge of the English language clearly convinces anyone whoreads it that it is not sub-letting, but a mere lease of the business carriedon at Jayarajan & Co. by the 1st defendant-appellant to the 2nd defendant-appellant. This is confirmed by the further fact which transpired fromthe evidence that no alteration was made in the Business Names Registerof Jayarajan & Co.
In his brilliant judgment in Charles Appuhamy v. Abyesekera1, the lateMr. Justice Nagalingam with a similar set of facts sets out lucidly the lawon a point like this and the considerations governing in deciding whether atransaction of this nature is sub-letting or merely a lease of the businesscarried on. It appears that this judgment was cited in the court of firstinstance but for some reason best known to Providence it has not beencorrectly applied.
I hold that the construction of the document D1 and attendant circum-stances as appearing from the evidence clearly establish that what the1st defendant-appellant did was merely to let the business carried onby her, to the 2nd defendant and that it is not sub-letting.
I, therefore, set aside the judgment of the learned Commissioner ofRequests. I allow the appeal with costs and dismiss the plaintiff-respondent’s action in the court below with costs.
Appeal allowed.