FERDINANDS v. PILIMATALAWA

029-SLLR-SLLR-1980-V-2-FERDINANDS-v.-PILIMATALAWA.pdf


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James Silva v. The Republic of Sri Lanka (Rodrigo, J.)
177
FERDINANDS v. PILIMATALAWACOURT OF APPEALRATWATTA, J. & ATUKORALE, J.
C. A. 395/79 F D.C. KANDY 953/REJUNE 10, 1980
Landlord and Tenant – Reasonable requirement – Rent Act No. 7 of 1972 sections21 (1) (b); 22 (1) (bb) – Rent Restriction Act, Sections 8 (C); 22 (8); 48 -Availability or non-availability of alternative accommodation to the tenant.
Admittedly the provisions of the Rent Act applied to the premises in suit after thetenancy commenced. The landlord sued the tenant to have her ejected from partof premises let to her on the ground that it was reasonably required for hisoccupation as residence.
Held:
In deciding whether the premises was reasonably required for theoccupation as a residence for the landlord, all the surrounding relevant factsmust be considered. The lack of alternative accommodation for the tenant is onesuch relevant fact. The burden of proof that there was a lack of other suitableaccommodation was on the defendant. To discharge that burden the tenantshould have placed before court positive evidence of the matter and details ofthe attempts made to obtain other accommodation.
The words “premises which have been let to the tenant prior to the date ofcommencement of this Act" in section 22(1 )(bb) can only refer to tenanciescreated before the date of commencement of the principal Act. This Act receivedassent on 1.3.1972 which is also the date of commencement. The date on whichthe provisions of the Act are brought into operation in a specified area by the
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Minister by notification in the Government Gazette under section 2(1) of the Actcannot be constitute the date of the commencement of the Act.
Cases referred to:
Gunasena v. Sangaralingam (1948) 49 NLR.473.
Saris Silva v. Sumathipala (1956) 58 NLR 427.
APPEAL from the Order of the District Court of Kandy.
N. R. M. Daluwatta for the Defendant-Appellant.
P. Snmatillakam for the Plaintiff-Respondent.
Curadvvult.
30th July, 1980.
ATUKORALE, J.
The plaintiff, who is the landlord and the respondent to this appeal,filed this action for the ejectment of her tenant the defendant, who isthe appellant, from the premises more fully described in the scheduleto the plaint. The schedule described the premises as all that dividedportion of land marked lot A1 as depicted in extract of plan No. 2131made by R. A. W. N. Jayatunga, Licensed Surveyor, and after settingout its four boundaries it further described the same as ‘containing inextent two roods (OA.2R.OOP.) together with the bungalow standingthereon (exclusive of the bedroom adjoining the sitting room, thelavatory and the garage)’. The plaint averred that the premises werereasonably required for occupation as a residence for the plaintiff.The defendant in her answer stated that the building in question wasleased out by her from the plaintiff in the first instance for a period of6 months from October 1974 at a monthly rental of Rs. 250/-.Subsequently she paid a sum of Rs. 1000/- being rental for a furtherperiod of 4 months and finally leased out the same for a furtherperiod of one year from August 1975 for a sum of Rs. 3000/-. Shepaid the plaintiff a total sum of Rs. 5500/-. She stated that thebuilding was situated in an area governed by the provisions of theRent Act and that the authorised monthly rental was Rs. 92.87. Shealso stated that as at the end of August 1978 she had paid a sum ofRs. 1506/59 cts. in excess of the authorised rent and claimed thissum from the plaintiff. She also claimed a sum of Rs. 826/- for certainimprovements to the building. She thus claimed these two sumsaggregating to Rs. 2332.59 cts. in reconvention. The plaintiff in herreplication averred that the Rent Act No. 7 of 1972 becameapplicable to the premises in suit only in October 1975 and deniedthat any sum was due from her on account of excess rent. She alsodenied liability to pay compensation in respect of any improvementseffected by the defendant.
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Ferdinands v. PiHmataiawa (Aiukorale, J.)
179
At the commencement of the trial it was admitted by both partiesthat the Rent Act came into operation in the area in which thepremises in suit was situated on 1.10.1975. It was also admitted thatthe plaintiff on or about 29.10.1976 gave the defendant notice to quitand vacate the premises on or before 31.10.1977, i.e. one year’snotice, as the premises were required for the plaintiff’s occupation asa residence. The main issue that was raised and that arose fordetermination by court was whether the premises were reasonablyrequired for the occupation of the plaintiff as a residence. Thelearned Additional District Judge after hearing the evidenceanswered this issue in favour of the plaintiff and ordered ejectment ofthe defendant from the premises in suit. The defendant has nowappealed from this judgment.
The main ground on which learned Counsel for the defendantpressed this appeal before us was that the plaintiff had not made outa case for reasonable requirement. His complaint was that inanalysing the evidence in the case the learned Judge had failed toconsider two important matters; firstly the fact that alternativeaccommodation was available to the plaintiff in the premises itselfand secondly that there was no evidence to show that any alternativeaccommodation was available to the defendant.
It is now settled law that in rent and ejectment cases in decidingwhether the premises are reasonably required for occupation as aresidence for the landlord all the surrounding relevant facts must beconsidered. The lack of alternative accommodation for the tenant isone such relevant fact – vide Gunasena v. Sangaralingam Pillai.m Inthat case in construing the words ‘reasonably required’ in section8(c) of the Rent Restriction Ordinance, the provisions of which aresimilar to those of section 22(1)(b) of the Rent Act No. 7 of 1972, itwas held that the court must take into consideration not only theposition of the landlord but also of the tenant together with any otherfactors that may be directly relevant to the acquisition of thepremises by the landlord.
On a perusal of the judgment as well as the evidence in this caseit appears to me that the learned Judge has addressed his mind tothe first of the two matters aforementioned, namely that the plaintiffhad reserved for herself a bedroom, lavatory and a garage out of thepremises as set out in the schedule to the plaint. The learned Judgehas also come to the conclusion (in my view, correctly) that this‘accommodation’ which she has reserved is not suitable and that it isnot possible for her to live therein. The plaintiff is a very old spinster,
71 years old at the time she gave evidence. The evidence was that
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the bedroom was adjoining the sitting room. There was no evidenceto indicate that it had a separate access. Access was very probablythrough the sitting room. As pointed out by learned Counsel for theplaintiff, the plaintiff and the defendant belonged to two differentraces and religions and their social habits and customs too probablydiffer. The defendant herself was suffering from high blood pressureand is a heart patient whilst her eldest son suffered from a mentalailment. Apart from her husband, she had 4 other sons all of whomexcept the youngest were grown up and unemployed. The plaintiffwould not have the use of a kitchen to prepare meals. Nor would ithave been possible for her to live in solitary confinement all byherself in the bedroom. Her age was such that she would wantsomeone else to attend on and look after her. There was no evidenceto show that these facilities were available to her. Further the presentlitigation itself would very likely cause much displeasure between theparties and their mutual feelings would have been strained. Underthe circumstances it appears to me that the learned Judge wascorrect in concluding that it would not be possible for the plaintiff tolive in this room. In fact the evidence is that she had not at any timeafter the commencement of the tenancy done so. Learned Counselfor the defendant also cited the case of Saris Silva v. Sumathipala <2)in support of his submission on this point. But I am of the view thatthe facts in that case can be distinguished from those in the instantcase. In that case there was evidence that the landlord had at hisdisposal suitable premises which he could appropriate for his useand under the circumstances it was held that he failed to dischargethe burden of proving that he reasonably required the premiseswhich were the subject-matter of that action. As set out above in theinstant case there is no such evidence and the plaintiff in this casehas in my view prima facie discharged the burden of proving that hereasonably requires the premises in suit for her occupation.
The second matter which learned counsel for the defendant urgedbefore us was that the learned Judge had failed to take intoconsideration the fact that there was no alternative accommodationavailable to the defendant and her family. A perusal of the judgmentshows that the learned Additional District Judge has not consideredthe question whether alternative accommodation was or was notavailable to the defendant. Learned Counsel for the plaintiffmaintained that no evidence was led to establish that the defendanthad in fact looked for or made any effort to secure otheraccommodation. As such he submitted there was no necessity forthe learned Judge to have addressed his mind to the question of theavailability or non-availability of alternative accommodation to thedefendant. The only evidence on this aspect of the case is that of the
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Ferdinands v. Pi/imatalawa (Atukorale, J.)
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defendant’s husband. During the course of his evidence he said thatif the defendant is ordered to vacate the premises, they will beunable to look for a place to go to immediately. Later on he alsostated that if they were ejected there will be no place for them to goto. This is all the evidence on this point. Learned Counsel for thedefendant contended that in view of this evidence there was nonecessity for the defendant to lead evidence of the efforts made byher or her husband to secure alternative accommodation. Hemaintained that the plaintiff should have, if he challenged thisevidence, cross-examined the defendant’s husband and elicited theparticulars of the efforts made to secure other accommodation. I donot agree with this contention of learned Counsel for the defendant.The burden of proving that there was a lack of other suitableaccommodation was on the defendant. To discharge that burden sheshould have placed before court positive evidence of the nature anddetails of the attempts made by her or her husband to obtain otheraccommodation. The bare word of the defendant’s husband that theyhave no other place to go to is in my view insufficient. It is the courtthat decides whether there is or is not a lack of alternativeaccommodation to the defendant. It is the duty of the defendant toestablish facts from which the court could infer that there is no othersuitable place for her to reside in. The law requires that in a case ofthis nature the tenant should be given one year’s notice. This in myview is to ensure that the tenant gets sufficient time to look for andsecure another place. Hence the tenant must always be in a position toplace before court the details of the various attempts made by him tofind out another place. No such evidence was led in this case. Even inher answer the defendant has not referred to any efforts made to lookfor another place. The oral evidence of her husband was that when theplaintiff refused to grant a further lease of the premises he asked fortwo years time to vacate the premises for the reason that he hadinvested a large amount of money on the poultry business that wasbeing carried on in these premises and not because of any difficulty insecuring other accommodation for their residence. Taking intoconsideration all these matters I am of the opinion that the defendanthas not led any evidence to show that he searched for alternativeaccommodation. There was thus no proof of the lack of suchaccommodation to the defendant. As such the learned Judge was notcalled upon to consider the question of alternative accommodation tothe defendant. I am therefore of the view that the learned Judge hasmade a correct analysis of the evidence in this case and that hisdecision on the main issue in the case is justified.
Learned counsel for the defendant also made another submissionto us which he stated was purely a question of law which had not
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been raised in the lower court. He contended that even if the plaintiffis entitled to a decree for ejectment she is not entitled to a writ ofpossession in execution of such decree until after the Commissionerof National Housing has notified to court that he is able to providealternate accommodation to the defendant in terms of S.22 (1C) ofthe Rent Act No. 7 of 1972 as amended by the Rent (Amendment)Law, No. 10 of 1977. It is clear that sub-section (1C) to S.22 relates todecrees for the ejectment of tenants of premises the standard rent ofwhich do not exceed Rs. 100/- per month and which have been letprior to the date of commencement of the Rent Act. In the instantcase it is not denied that the standard rent per month for thepremises in suit is less than Rs. 100/-. Hence the only question thatarises for consideration is whether the premises were let to thedefendant prior to the date of commencement of the Rent Act. It wasthe submission of learned Counsel for the defendant that as thepremises were first let to the defendant in 1974 and that as the RentAct was brought into operation in the area in which the premises aresituated on 1.10.1975, the premises had therefore been let prior tothe date of commencement of the Act. I do not think there is anymerit in this submission. The words ‘premises which have been let tothe tenant prior to the date of commencement of this Act’ inS.22(1)(bb) can only refer to tenancies created before the date ofcommencement of the principal Act (the Rent Act No. of 1972). ThisAct has received assent on 1.3.1972 which is also the date ofcommencement. The date on which the provisions of the Act arebrought into operation in a specified area by the Minister bynotification in the Government Gazette under S.2(1) of the Act cannotin my view constitute the date of commencement of the Act. Itherefore hold that S.22(1)(bb) has no application to this case as thetenancy commenced after the commencement of the Act.
Finally learned counsel for the defendant submitted that thedecree entered in this case is not in conformity with S.22(8) of theRent Act. This sub-section provides that where a decree for theejectment of the tenant of any premises is entered by court on theground that the court is of opinion that the premises are reasonablyrequired for occupation as a residence for the landlord or anymember of his family, the court shall in such decree direct that noperson, other than the landlord or some member of his family whosename shall be specified in the decree, shall enter into occupation ofthe premises upon vacation thereof by the tenant or upon theejectment of the tenant therefrom. This appears to me to be amandatory provision of law. The decree entered in this case containsno such directions, and has thus to be amended. S.48 of the Actdefines ‘member of the family’ of any person to mean the spouse of
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Ferdinands v. Pilimatalawa (Atukorale, J.)
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that person, or any son or daughter of that person over 18 years ofage. The evidence in this case is that the plaintiff is a spinster. Assuch there are no members of her family as contemplated in thedefinition. Hence the only amendment that the decree requires is theinsertion of a direction that no person other than the plaintiff shallenter into occupation of the premises in suit the vacation thereof bythe defendant or upon the ejectment therefrom of the defendant. Wetherefore direct that the decree be amended accordingly.
During the course of his submissions learned Counsel for theplaintiff tried to contend that there was evidence to show that thehouse in question was adjunct to the land and as such the Rent Actdoes not apply. He also moved to frame two additional issues to thateffect. This was objected to by learned counsel for the defendant. Ido not think the plaintiff should be permitted at this stage to framethese issues. Quite apart from the fact that there is no evidence onthis point, it would radically alter the entire basis of the plaintiff’saction. Having come to court on the basis that the provisions of theRent Act apply to the premises in suit, it is now not open to him toresile from that position and take up an entirely different position.
For the above reasons we affirm the judgment of the learnedAdditional District Judge and subject to the aforementioned variationin the decree we dismiss this appeal with costs.
RATWATTE, J. -1 agree.
Appeal dismissed.