127-NLR-NLR-V-51-FERNANDO-Appellant-and-PAIVA-Respondent.pdf
Fernando v. Paha
1950Present: Basnayake J.FERNANDO, Appellant, and PAIVA, Respondent
S.C. 9—C. R. Colombo, 18,917
Rent Restriction Act—Claim that premises are required, for occupation by a memberof landlord's family—Should that person give evidence ?—Act No. 29 of 1948—Section IS (c).
When a landlord 9ooks to ejoct a tenant under section 13 (o) of the KentRestriction Aot. on *Kn ground that the promises are required for the occupationof u member of his family iilroro is no requirement in law that the memberof the family for whom the house is required should give evidence.
PPEAL from a judgment of the Court of Requests, Colombo.
E. B. Wikramanayake, K.C., with C. E. Jayewardene, for plaintiffappellant.
E R. S. R. Coomaraswamy, for defendant respondent.
1 (1883) 52 L.J.Q.B. 657.
Cur. adv. vult.
BASNAYAKE J.-—Fernando v. Paiva
.>27
March 23, 1950. Basnayake J.—
This is an appeal by the plaintiff in an action wherein he seeks to havehis tenant ejected from premises No. 17,Dickman’sLane, Bambalapitiya.According to the amended plaint, the premises “ are reasonably requiredfor the use and occupation as a residence of a member of the plaintiff'sfamily within the meaning of section 13 (c) of the Rent Restriction Act,No. 29 of 1948, viz., his son John Victor Fernando, who is above 18 yearsof age and is also dependent on the plaintiff”. The defendant deniesthat allegation. At the trial the following issues were raised :—
(1) Is the defendant a tenant under the plaintiff '
<a) rwcl the plaintiff on or about tfco lockit)4g gjve
defendant notice to quit on or before 31st January, 19*© >
Arc the premises in question reasonably required for occupation
as a residence for the plaintiff’s son John Victor Fernando ?
If issues (1), (2), and (3) are answered in the affirmative, is the plaintiff
entitled to a decree in ejectment against the defendant'(
It is not clear why in view of the pleadings no issue has been framedon the question whether the plaintiff’s son is a member of his familyfor the purposes of the Rent Restriction Act.
The plaintiff gave evidence in support of his case and the defendantgave evidence on his own behalf. The learned Commissioner gavejudgment against the plaintiff. In the course of his judgment the learnedCommissioner observes:
“ It is very likely and highly probable that it is inconvenient for theyoung married couple to live in the parents’ house when there areseveral others living there; but the son John Victor for whom thishouse is required has not given evidence. It may be that he wouldnot wish to live in the house his father wants him to move into. He.is the person who should decide about wanting this house for hisoccupation as a residence. In view of this conclusion I have arrivedat, I do.not think it necessary to consider the position of the defendant.’*
The learned Commissioner does not appear to have addressed hismind to the issues in the case although he has answered the first andsecond in the affirmative and the third in the negative. A landlordwhosceks to eject a tenant on the ground that tho premises are reasonablyrequired for the occupation of any member of the family of the landlordmust establish by evidence that the person for whom the house is requiredis a member of his family as defined by section 13 (1) {d) of the RentRestriction Act, No. 29 of 1948, and that the requirement is reasonable.There is no requirement in law that the member of the family for whomthe house is required should give evidence. As it is not necessary in lawto call any particular witness in order to establish the reasonablenessof the plaintiff’s claim, the learned Commissioner should have examinedthe evidence for the plaintiff and the defendant and decided upon thatevidence whether the plaintiff’s request was reasonable or not. Ithas been laid down by this Court that the circumstances of the defendantare relevant to a consideration of the reasonableness of the landlord’stequest.
528DIAS J.—Xavaralnam r. Commivnioner of Income Tax
As the learned Commissioner has refrained from considering theposition of the defendant, I cannot sitting in appeal dispose of thisaction. I set aside the judgment of the learned Commissioner and sendthe case back for trial before another judge on proper issues.
Sent back for re-trial.