015-NLR-NLR-V-77-E.-MASSAKORALA-Appellant-and-C.-A.-J.-B.-PERERA-Respondent.pdf
Mdssakorala v. Perera
111
Present: Wijayatilake, J.E. MASSAKORALA, Appellant, and C. A. J. B, PERERA,
Respondent
S. C. 14/70—C- R. Colombo, 97129/R.E.
Rent Restriction Act (Cat). 274), as amended by 4rt No. 12 of 19f>6—Section 12A (2)—Tenant’s plea that he was in arrear of renton account of illness—Report of a Medical Board concerning theillness—Duty of Court to consider it without prejudice.
The defendant, a tenant who was sued in ejectment on the groundthat he had failed to pay rent for more than three months, claimedrelief under section 12 A (2) of the Rent Restriction Act as therent was in arrear on account of his illness. The Medical Boardconsisting of three doctors with the Chairman, an eminent physician,had reported that the defendant was unfit, owing to mental illness,for further service in the Government Department in which hewas employed. The Court questioned the finding of the MedicalBoard and ventured to suggest that this was a usual ruse adoptedby public servants.
Held', that the Court should not have rejected the report of theMedical Board without, at least, giving an opportunity to theChairman of the Board to explain the details of their report.
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WIJAYATILAKE, J.—Massakorala v. Perera
Appeal from a judgment of the Court of Requests, Colombo.
Miss Maureen Seneviratne, with Miss Priyanthie de Silva, forthe defendant-appellant.
S. C. Crossette-Thambiah, with M. Thevarajah, for the plaintiff-respondent.
Cur. adv. vult.
March 5, 1973. Wijayatilake, J.—
The plaintiff filed this action on 10.12.1967 for ejectment of thedefendant from the premises in question on the ground that hehad failed to pay the rent from March 1966. The rental of theseXrremises is Rs. 19.15 per mensem. Accordingly the plaintiffclaimed a sum of Rs. 383 being arrears from 1.3.66 to 31.10.67 anddamages at Rs. 19.15 per mensem thereafter. The defendantpleaded inter alia that he effected repairs to these premises withthe consent of the plaintiff at a cost of Rs. 337.75 for whichamount the plaintiff has failed to give him credit. The defendantfurther pleaded that he is entitled to relief under Section 12A (2)of the Rent Restriction Amendment Act No. 12 of 1966 as he,who was employed at the Quarantine Department, wascondemned by a Medical Board owing to mental disease.
Learned Counsel for the appellant submits that on both thesequestions the learned Commissioner has misdirected himself inhis assessment of the facts. In regard to repairs the defendanthas produced the documents D 1 and D 2. The former is, a letterdated 2.11.68 addressed by the defendant’s wife to the plaintiff’sproctor. In this letter the defendant’s wife categorically statesthat, a sum of Rs. 337.75 was spent on account of urgent andessential repairs and a further sum of Rs. 300 was paid to theplaintiff’s proctor on 28.9.67. It is significant that although sheinvited an early reply in regard to any balance due there wasno acknowledgment of this letter. The defendant in his evidencehas stated that before he effected these repairs he informed theplaintiff and his proctor and the proctor even visited thepremises. It is also significant that the defendant was cross-examined on the footing that the plaintiff’s proctor refused togive him permission to effect repairs and the defendant stressed"the fact that the permission to effect repairs was sought prior■to the notice to quit. In the light of the averment in the answer
WI JAY AT I I.AKE, J.—Massakoralct v. Perera
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and the document D 1 it has not been explained why theplaintiff’s proctor was not called by the plaintiff as a witness.
I am inclined to agree with Miss Seneviratne that the learnedCommissioner has failed to assess the facts in their properperspective. The mere fact that the defendant made a payment ofRs. 3U0 in September 1967 over and above the rent in fact due is,in my opinion, not an adequate answer to the question that hasarisen. It may well be that when the defendant received thenotice to quit, in his anxiety he sought to pay what was claimedwithout entering into a controversy in regard to the repairseffected as he had been a tenant of these premises for nearly12 years. It would appear that the plaintiff’s father was theowner of the tenements in this garden and the defendant hadfunctioned as a rent collector and got into the bad books of thetenants as he had to appear in Courts too. It is in this connectionthat he had got into a mess in the Government Department inwhich he was employed and thereafter in consequence becomea mental patient. The Medical Board consisting of 3 doctors withthe Chairman, an eminent physician, had reported that thedefendant was unfit for further service owing to mental illness.(See D 3).
Despite this report the learned Commissioner has questionedthe finding of the Medical Board and he has ventured to suggestthat this is a usual ruse adopted by Public Servants ! In myopinion there is no foundation for this aspersion and it shouldnot have been made without probing into the matter further byat least giving an opportunity to the Chairman of the Board toexplain the details of their report. A judicial pronouncementof this nature should be made with circumspection. The evidenceof the defendant and his wife shows that during this period theywere going through serious hardships and financially they werein a desperate state. In my opinion, section 12 (A) 2 of the RentRestriction Act contemplates a situation such as this.
Mr. Crossette-Tambiah has very strenuously submitted that thelearned Commissioner’s assessment is correct on a totality ofthe evidence. But on careful consideration of the material beforeme I am of opinion that the appellant is entitled to succeed onboth these grounds.
I accordingly set aside the judgment and decree of the learnedCommissioner and dismiss the plaintiff’s action with costs inboth Courts.
Appeal allowed.