100-NLR-NLR-V-54-F.-X.-LEON-Appellant-and-E.-SUBBIAH-PILLAI-Respondent.pdf
GRATXAEIST J.—Leon v. Subbiah Pillai
425
1953Present: Gratiaen J.IT. X. LEON, Appellant, and E. SUBBIAH PILLAI, RespondentS. C. 70—C. R. Colombo, 31,936
Rent Restriction Act, No. 29 of 1948—Section 13—Dismissal of landlord's claim topremises—His right to bring second action on same issue.
A landlord who unsuccessfully pleaded in a previous suit the provisions ofsection 13 of the Rent Restriction Act in regard to his reasonable requirementof the premises in question for his own occupation cannot re-agitate the sameissue on substantially the same considerations in a second action unless hecan point to supervening circumstances which have materially altered thesituation.
.^LPPEAL from a judgment of the Court of Requests, Colombo.-
H. W. Jayewardene, with D. R. P. Goonetilleke, for the defendantappellant.
3. V. Perera, Q.C., with C. Chella.ppah, for the plaintiff respondent-
Cur. adv. vult.
February 18, 1953. Gratiaen J.—
This is an appeal from a judgment ordering the ejectment of a tenantfrom certain premises in Sea Street, Colombo, on the ground that they-were “ reasonably required for his landlord’s occupation as. a place ofbusiness* and also as a residence ” within the meaning of §ec. 13 of the-Rent Restriction Act.-
Proceedings of this kind invariably involve disputes of great momentto the parties concerned, and the machinery of the Act breaks down unless-,the trial and any appeal arising from it can be concluded reasonablysoon after the dispute arose. The present action was instituted on 5thFebruary, 1951, and judgment was entered in favour of the plaintiff on5th October, 1951. The typewritten briefs did not reach the Registrar of'
426
GRATIAEN J.—Leon v. Snbbiah Pillai
"the Supreme Court until 8th. May, 1952. The appeal came up for hearingbefore me on 13tb February, 1953, "which is more than two years after theaction commenced. This simple catalogue of dates is.a cynical commen-tary on the law’s delays of the present time. How the situation of theparties has developed during this long interval I do not know and(being only a Judge of appeal) am not permitted to inquire.
The defendant complains that the learned Commissioner was notjustified upon the evidence in holding that the plaintiff “ reasonably ”required the premises for his own use. In such cases the proper functionof this Court is to consider whether or not the trial Judge’s decision wasbad for misdirection. Coplans v. Kingl. It is not enough, as Somerville
J.pointed out in Cresswell v. Hodgson2, that the learned Com-missioner “ has given more weight than he should give, or more weightthan another judge may give, to some matters. But that is not thequestion here. The question is whether he has so plainly gone wrong in lawthat this court should interfere ”. It is on these lines that I proceed toexamine the judgment under appeal.
The defendant had continuously occupied the premises as a place of
business since 1944originally as a tenant under a previous owner, and
since February, 1948, under the plaintiff to whom he attorned when thelatter became the purchaser. The plaintiff had admittedly bought thepremises knowing that there was no early prospect of obtaining vacantpossession. In other words, his purchase in the first instance representedan investment.
It is important to bear in mind that there had been a previous litigationbetween the parties. On 6th July, 1948, the plaintiff sued the defendantTor ejectment on the same grounds on which he now relies, namely, that “ thepremises were reasonably required by him for his own use and occupationns a place of business and as a residence ”. On that occasion his actionwas dismissed with costs in terms of a judgment of Wijeyewardene C.J.-dated 24th June, 1949. Thereafter the plaintiff, to use his own words,“ lost heart and attempted to sell the premises ”. He did not receive asatisfactory offer for, them, however, and the defendant continued tooccupy the premises as his tenant for the purpose of carrying onthe business managed by bim for the benefit of himself and his family.{I agree with the learned Commissioner that the question whether hisconnection with the business was that of sole owner or a partner or merelythat of a managing attorney has little relevancy, if any, to the presentdispute.)
The present action, as I have said, was instituted on 5th February, 1950."The plaintiff once again claimed to re-possess the premises on precisely thesame grounds as in the earlier action, except that he also alleged on thisoccasion that the defendant had “sub-let the property without his autho-rity ”. On that issue he failed, so that the main question for determina-tion was whether any additional circumstances had arisen sincethe earlier action was instituted to introduce an element of “ reasonableness”(which was previously held to be lacking) to his claim to eject the■defendant.
(1947) 2 A. E. It. 393.
s (1951) 2 K. B. 92.
GRATIAEN J.—Leon v. S-ubbiah Filial
42?
The learned Commissioner considered the evidence with great care, and,if the case had not been complicated by the result of the earlier litigation, Iwould have found it quite impossible to disturb his decision. But itseems to me that the judgment is bad for misdirection because the learnedCommissioner approached the vital issue of “ reasonableness ” as if it
had arisen for the first time between the partieswhereas, in truth, there
was already a concluded decision that the events which preceded 6th July,1948, taken by themselves, were insufficient to deprive the tenant of thestatutory protection of the Rent Restriction Act. If the matter had beenapproached from this angle in the lower Court the learned Commissionerwould himself, I think, have taken the view that since that crucial datethere had been no substantial change in the position of either party so as toturn the scales in favour of the plaintiff. Indeed, he has in effect “ re-tried ” the earlier dispute.
The plaintiff’s evidence fully sets out his reasons for requiring the pre-mises for his own use. That he genuinely desires to re-possess the pro-perty, I do not doubt. That he could carry on his own business more con-veniently in the protected premises and perhaps derive some additionalpecuniary advantage if those wishes were gratified, I do not doubt either.But that is not enough. Bor, as he frankly admitted at the trial, “ Iam in the same difficulty today as I had been in Judy, 1948”. The samedifficulty, no greater and no less, apart from some variations of emphasisin his description of it in the witness box. TTis volume of business has,if anything, increased since then, but sometimes his profits declined owingto keener competition ; at other times, the market would improve, andhis profits would go up. These seem to be the normal fluctuations which,as I understand his evidence, are the result of considerations extraneousto the suitability or otherwise of his present place of business. Asagainst that, the disadvantages which would residt to the defendant if he -were compelled, under existing conditions, to look for some other place ofbusiness for his own activities are obvious.
It would be contrary to the spirit of the Rent Restriction Act if alandlord, having unsuccessfully pleaded the provisions of sec. 13 of theAct on one occasion, were permitted to re-agitate the same issue onsubstantially the same consideration shortly afterwards. The statusquo must remain until he can point to supervening circumstances whichhave materially altered the situation. There was no evidence to establishthat the plaintiff’s requirement which was not “reasonable” in July, 1948,had become any more reasonable in February, 1951. The judgmentunder appeal proceeds, by' and large, on a consideration of the identicalconsequences which would result from a decision for or against the land-lord. Nothing has since occurred to deprive the tenant of the statutoryprotection which was judicially recognised in the earlier case. In otherwords, the balance of convenience has not been appreciably disturbedduring the interval between the first and second actions. I would there-fore allow the appeal and dismiss the plaintiff’s action with costs in bothcourts.
Appeal allowed.