036-SLLR-SLLR-1997-2-ESUFALI-v.-JIFFRY.pdf
CA
Esulali v. Jiffry
345
ESUFALI
v.
JIFFRY
COURT OF APPEALISMAIL, J„
A. 35/94 (F).
C. MT. LAVINIA NO. 2516/RE.
APRIL 29,1997.
JUNE 5, 16, 1997.
Rent Act, No. 7 of 1972, Sections 22(2) (bb) (ii), 22(7), 27(1) – Landlord acquiringownership whilst being the landlord.
The plaintiff-appellant sought to eject the defendant respondent in terms of section22(2) (bb) (ii) of the Rent Act. Plaintiff’s action was dismissed on the ground that hehad acquired ownership of the said premises after the defendant became histenant, which fact acted as a statutory bar – section 22(7). On appeal –
Held:
1. The plaintiff-appellant has acquired ownership of the said premises whilstbeing the landlord of the defendant respondent: the statutory bar in section 22(7)would not be applicable to him.
The proviso is specific and must be within its terms. It does not include a landlordwho was the landlord of the premises let before the tenancy arose.
APPEAL from the Judgment of the District Court of Mount Lavinia.
Cases referred to:
Shanmugavadivu v. Ayyathurai – 1986 3 CALR 238 at 240.
S.C. Appeal No. 81/1986-SCM 11.10.91.
A. A. M. Marleen with M. R. M. Ramzeen for plaintiff-appellant.
Vernon Boteju with P. Sivaloganathan for the defendant-respondent.
Cur. adv. vult.
July 21, 1997.
ISMAIL, J.
The plaintiff-appellant instituted action by a plaint dated 16.6.86seeking to have the defendant-respondent ejected from the premisescalled ‘St. Malo’ bearing assessment No. 29 at Elibank Road,Colombo 5, having deposited with the Commissioner of National
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Sri Lanka Law Reports
[1997] 2 Sri LR.
Housing a sum of Rs. 10,690/- being the equivalent of five years' rentfor payment to the tenant in terms of section 22(2)(bb)(ii) of the RentAct. At the conclusion of the trial the learned District Judge by hisjudgment dated 3.2.94 came to the finding in favour of the plaintiff thathe is not the owner of any other residential premises, that he hasterminated tenancy of the defendant by a notice to quit dated 2.9.85and that he has deposited the equivalent of five years rent asaforesaid. The standard rent of the said premises for a monthexceeded Rs. 100/- and its authorised rent was Rs. 176.16 per month.However, the plaintiff’s action was dismissed on the ground that hehad acquired ownership of the said premises after the defendantbecame his tenant, which fact acted as a statutory bar to theinstitution of this action in terms of section 22(7) of the Rent Act. Theplaintiff-appellant seeks to have this finding set aside in this appeal.
It appears from the Fiscal Conveyance No. 20344 dated 8.10.56(P8) that the premises in suit owned by F. R. Deveson and Mrs. BerylDeveson, who carried on business as F. R. Deveson and Co. werepurchased by Norman Usoof Ali on 15.12.55 when it was exposed toa public sale by virtue of a writ of execution issued on 12.6.53 in anaction bearing No. 27586/M in the District Court, Colombo.
The plaintiff claimed that he is the owner of the premises and tookup the position that his brother Norman Usoof Ali who purchased thesaid property held it on trust for him, and as confirmation, he referredto the recitals to that effect in the special power of attorney dated1.12.77 (P12) granted by Norman Usoof Ali who was then living abroadto facilitate the transfer of the said property to him by deed. The saidpremises were transferred by Norman Usoof Ali through the holder ofthe special power of attorney to the plaintiff by deed of transferNo. 381 dated 2.2.79 (P11) attested by D. B. Danny de Silva, N.P.
The plaintiff stated in his evidence that he was in occupation of thepremises since the year 1950 and that as Mrs. Beryl Deveson hadonly a fiduciary interest in this property which was subject to a fide-commissum, he entered into a lease agreement No. 102 dated17.8.59 (P9) with her, valid for a period of ten years from 1.7.59, tosafeguard his right of possession in the event of her death. Before theexpiry of the period of the said lease, the plaintiff himself as thelandlord leased out the said premises to the defendant for a period of
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Esufali v. Jiffry (Ismail, J.)
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four years by a lease agreement No. 211 dated 15.9.65 (P10)attested by S. Hari Hara Aiyer, N.P.
The learned District Judge has accepted the submission on behalfof the defendant that the plaintiff was barred from instituting thisaction by section 22(7) of the Rent Act as the ownership of thepremises was acquired by him on transfer deed No. 381 dated21.2.79 (P11) after the defendant came into occupation of thepremises consequent to the aforesaid lease agreement dated15.9.65 (PIO). The position taken up by the plaintiff that he was theowher of the premises as his brother held it on trust for him since itspurchase by him at the fiscal sale until the date of the formal transferby deed P11 was not accepted by the trial judge.
Learned Counsel for the plaintiff-appellant submitted that theprohibition referred to in section 22(7) of the Rent Act is notapplicable to the plaintiff who was admittedly the landlord of thedefendant prior to the date of his acquisition of the ownership of thepremises by the deed of transfer P11 in 1979.
According to the relevant provisions of section 22(7) of the RentAct, no action or proceedings for the ejectment of the tenant of anypremises referred to therein shall be instituted, where the landlord isthe owner of not more than one residential premises, on the groundthat the landlord of such premises has deposited a sum equivalent tofive years’ rent “where the ownership of such premises was acquiredby the landlord on a date subsequent to the specified date …”meaning the date on which the tenant came into occupation of thepremises.
There is a similar prohibition in the proviso to section 27(1) of theRent Act dealing with the ejectment of a tenant of a part of thepremises another part of which is occupied by the landlord. It is asfollows:
“Provided, however, that the landlord of such residential premisesshall not be entitled to institute action or proceedings- under thepreceding provisions of this subsection for the ejectment of thetenant of any part of such premises, if the ownership of suchpremises was acquired by the landlord on a date subsequent tothe specified date by purchase …"
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The Court of Appeal in Shanmugavadivu v. Ayyathurai,m referringto the aforesaid statutory bar, observed that these provisions were“obviously meant to safeguard the tenant or the subtenant as thecase may be, from persons who had purchased rent controlledpremises over the head of the tenants and so becoming the newlandlord… The legislature could never have intended to deprive anon-owner landlord of any rights, which he was already enjoying, onhis subsequently becoming the owner landlord."
The Supreme Court in appeal in the same case – SC AppealNo. 81/1986 – SC minutes 11.10.91<2) dealing with the proviso tosection 27(1) held as follows:
“The proviso however deliberately seeks to prevent whateveradvantages the enacting part may confer on a landlord from beingenjoyed by a landlord who becomes such landlord only by virtue ofacquiring ownership by purchase made subsequent to the tenantcoming into occupation of that part of the premises: that is theconstruction consonant with the legislative intent and policy of theenactment and which may properly be implied as being consistentwith reason and justice. The proviso is specific and must beconfined within its terms. It does not include a landlord who was thelandlord of the premises let before the tenancy arose.”
The plaintiff-appellant in the instant case has acquired ownershipof the said premises while being the landlord of the defendant-respondent, and, as pointed out in the judgments referred to above,the statutory bar in section 22(7) of the Rent Act would therefore notbe applicable to him. The learned District Judge has erred in holdingthat the provisions of section 22(7) of the Rent Act was a bar to theinstitution of the action for ejectment by the plaintiff-appellant.
The appeal is allowed with costs.
The judgment and decree of the District Court are set aside. Theplaintiff-appellant will be entitled to a decree for ejectment as prayedfor with costs.
Appeal allowed.