040-NLR-NLR-V-60-E.-L-.-ARNOLIS-APPUHAMY-Appellant-and-L.-D.-DE-ALWIS-Respondent.pdf
SANSONI, J,—Aranolis Appuhamy e. t>e Abets
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1958Present: Sansoni, J.E. L. ARANOLIS APPUHAMY, Appellant, and L. D. DE ALWISRespondentS. C. 125—C. R. Colombo, 64,441
Rent Restriction Act, No. 29 of 1948—Section 13, sub-sections 1 (e) and 2—Businesspremises —“ Reasonable requirement ” by landlord—Should it be confined to thetime of institution of the action ?—Death of landlord pending appeal by tenant—Effect on decree for ejectment.
Plaintiff instituted action on December 5, 195G, asking for ejectmentot his tenant, the defendant, from the rented premises on the ground that thepremises were reasonably required for the purposes of his business. Admittedly,the plaintiff did not require the premises until December, 1957, in order tostart the business.
The trial Judge delivered judgment on June 28, 1957, in favour of the plaintiff.Pending the appeal of the defendant, the plaintiff died in January, 1958.
Held, (i) that the action was maintainable even though the plaintiff’s require-ment of the premises was not immediate on the date when the action was
instituted.
(ii) that the decree for ejectment of the defendant was not affected by the
subsequent death of the plaintiff {tending appeal.
A
JuX PPEAL from a judgment of the Court of Requests, Colombo.
N.K. Cholcsy, Q.C., with A. Sivagurunathar and B. J. Fernando, forthe Defendant-Appellant.
Sir Lolita Bajapakse, Q.C., with A. Premadasa and D. C. W.Wickremasekera, for the substituted Plaintiff-Respondent.
Cur, adv. vult.
October 13, 1958. Sansoni, J.—
The plaintiff, who is the landlord, hied this action on 5th December,1956, against his tenant, the defendant, asking for ejectment of the latterfrom the rented premises on the ground that they were reasonablyrequired for the purposes of his business. The trial took place in April•and May, 1957, and the learned Commissioner delivered his judgment on28th June, 1957. He accepted the evidence of the plaintiff and hisbrother that they intended to start a business in those premises in Decem-ber 1957. He held that the premises were reasonably required for thatbusiness and ordered that the defendant should be ejected from them.
The defendant has appealed and two grounds were strenuously urgedon his behalf. One was that the action should have been dismissedbecause the business which the plaintiff and his brother intended t&
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start was not to begin till December 1957 ; therefore, the argument ran,it could not be said that the premises were reasonably required at thetime that the action was filed. The other ground was that as the plaintiffdied in January 1958 while this appeal was pending and while the decreein his favour was still unexecuted, it was not open to his legal represen-tative (who was substituted in his stead) to enforce the decree.
Having regard to the terms of section 13 (1) of the Rent RestrictionAct, No. 29 of 1948, and the decisions of this Court in Maroof v. Leaff1and Andree v. de Fonseka 21 would hold that, in the words of Gratiaen J.in the latter case, “ the reasonableness of the landlord’s demand to berestored to possession for the purposes of his business must be proved toexist at the date of institution of the action and to continue to exist atthe time ofthe trial ”,
I do not, however, think that the plaintiff in the present action wasbound to wait until December 1957 to institute proceedings for theejectment of the defendant, seeing that he required the premises inDecember 1957 in order to start the new business. The argument for theappellant was in effect that the need of the plaintiff should be immediate. when the action is filed. The unreasonableness of such a rule becomesapparent when one considers the history of the present action. It wasfiled in December 1956, the judgment of the lower Court was deliveredin June 1957, we are now in October 1958, and the plaintiff’s legal repre-sentative has yet to obtain possession of the premises in dispute in orderto start the proposed business. Yet it is argued that the filing of theaction should have been delayed by another year. I accept the learnedCommissioner’s findings on the facts and reject the first ground of appeal.
The argument on the second ground was that in view of the plaintiff’sdeath it can no longer be said that the premises are reasonably requiredfor the purposes of his business. Emphasis was laid on the wording ofproviso (c) of section 13 (l)of the Act where a distinction is drawn betweenpremises required for occupation as a residence, in which case the needsof the landlord as well as any member of his family can be considered,and premises required for the purposes of business, in which case theneeds of the landlord’s family cannot be taken into account. Anotherargument was that since the purpose of the Act was to enable the landlordto regain possession, the death of the landlord before he regained pos-session could only result in his legal representative or any member of hisfamily losing the benefit of a decree entered in the landlord’s favour.Reliance.was also placed on the provisions of section 13 (2) with regardto the terms of the decree to be entered. Finally, it was submitted thatit was not a proprietary right but a mere personal right which the land-lord obtained when a decree for ejectment was entered in his favour,and the personal right would die with him.
• Strong support for the appellant’s argument is to be found in thejudgment of Windham J. in Ismail v. Herft3. The learned Judge heldthat where a plaintiff died after he obtained a decree for ejectment on the
1 {1944) 46 N. L. B. 25.2 (1950) 51 N. L. B. 213
’…3 (1948) 50 N. L. B. 112.'.
• SANS ONI, J.—-Aranolis Appuhdmy v. De Atvni
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ground that the premises were reasonably required as a residence forhimself and his family, the Court of Appeal should satisfy itself that thepremises were still reasonably required for his family. He, also held thatthe right to occupy the premises was a personal right which Would notpass to his heirs or successors until the landlord had actually entered intooccupation. In the recent case of S. P. K. Kader Mohideen and Go. Ltd.v. S. N. Nagoor Gany1 Sinnetamby J. dissented from this judgment andheld that the Court cannot look into events that occur subsequent to thedate of the institution of the action. The learned Judge based his decisionon the provisions of section 13 (1) of the Act and the general principleof law that rights of parties must be determined as at the date of action.
1 have already indicated my view as to the time at which the reasonable-ness of the landlord’s demand must be proved to exist. With respect,
I would not confine it to the time of institution of the action. It mayhappen that premises which were reasonably required for occupationat the time of institution of the action will not be so required when thecase is heard and the Court has to make its decision. If that shouldhappen, no decree for ejectment should be entered, since proviso^ (c) tosection 13 makes the opinion of the Coqrt the decisive factor and thatopinion would be expressed in relation to the facts existing when thetrial takes place. Take again a case where the premises were reasonablyrequired when the action was filed, and events occur pending the actionwhich strengthen the claim to possession, so that when the respectiveclaims of the parties are balanced at the hearing the plaintiff’s need iseven greater than it was when the action was filed. In my opinion in sucha case the Court should consider the position of the parties at the trial.
The question I have to decide is whether I should follow the judgmentof Windham J. which dealt with the precise point which I am now con-sidering, namely, whether a decree for ejectment is affected by the deathof the plaintiff in the action. With respect, I must express my dissentfrom that decision and for doing so I rely on two decisions of the Court ofAppeal in England. Although they were not referred to at the argument’of the appeal, those decisions seem to me to conclude the matter.
The question first arose in B. F. Fuggle Ltd. v. Gadsdena. The Court ofAppeal in that case had to decide whether it could consider matterswhich arose after the lower Court had given judgment and which, if theyhad happened before the hearing, might have affected the finding. LordGreene M. R. said that the only thing that the Court of Appeal could doin such a case, if it was right to take such a ma tter into account, wouldbe to send the action back for decision on the issues of fact in the lightof the new circumstances. He went on to say : “ That, as it seems tome, would be an intolerable result, because there would never be finality.
It seems to me that once you allow this Court to examine new facts whichhave taken place after the judgment on which itself it is not competentto judge, you would completely lose all finality, and nobody wouldknow where he was. It might be suggested that this Court, which onappeal would be making the order, ought not to make it unless it were
1'(1958) 60 N. L. R.H.% {1948) 2 K. B. 236.,*
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satisfied as to the reasonableness of making it. In my judgment, whenthe section talks about being satisfied that it is- reasonable to make anorder, it means the tribunal of fact must be satisfied that it is reasonabeto make an order ; and once the tribunal of fact on adequate evidenceis so satisfied the competence of this court to dabble in that matter iscompletely ruled out. ”
This judgment was followed in Goldthorpe v. Bain1. That case dealtwith the death of the plaintiff who had obtained an order for possession.One matter which was considered was whether such an order was personalto the plaintiff and ceased at his death. The Court of Appeal held thatthe order was not personal to the landlord who obtained it, but concerneda proprietary interest of the landlord which passed to his personal re-presentatives. The other ground on which the Judges decided theappeal was that there must be finality. Jenkins L.J. said: “ Issues ofgreater hardship or reasonableness, or the landlord’s need of the premises_ as a residence for himself or some other qualified person, could be triedover and over again, and orders under the Act could thus be varied intheir operation without limit or even rescinded after what, in effect,would amount to a rehearing of the whole case. In my view, therefore,One should adhere to the principle that the conditions required to enablean order for possession to be made should be judged at the date whenthe case is heard and judgment is delivered, and that the validity of theorder is not to be affected by any subsequent event. ”
While appreciating the difference in the wording of the local RentRestriction Act of 1948 and the English Rent Restriction Act of 1933,I would follow and apply these decisions. I think they deal effectivelywith the arguments of the appellant’s counsel.
The appeal is dismissed with costs.
1 (1952) 2 Q. B. 455.
Appeal dismissed.