Kumaranatunge v. Jayakody (Tambiah. J.)
SAMARAKOON. C.J., RANASINGHE. J. AND RODRIGO. J.
S.C. APPEAL No. 25/83.
S.C. SPECIAL LA/9/83.
C. A./L. A./7482 (S.C ).
C.A. (S.C) No. 811/75 (F).
D C. COLOMBO No. 1969/ED.
Landlord and Tenant – Arrears of rent – Subletting – Wanton destruction and wilfuldamage – Section 12A (1} (d) of the Rent Restriction Act as amended by Act No. 12of1966.
The plaintiff sued his tenant the defendant for ejectment from shop premises No. 327,Galle Road on three grounds: arrears of rent, subletting a portion to one AlbertWijetunge and causing wanton destruction and wilful damage to the premises. TheDistrict Judge found in favour of the plaintiff on all three grounds but the Court of Appealrevised these findings and ordered plaintiff's action to be dismissed.
Sri Lanka Law Reports
 2 Sri L.R.
In appeal by the plaintiff to the Supreme Court he was permitted to proceed only on thegrounds of subletting and causing wanton destruction and/or wilful damage to thepremises.
The allegation of subletting to Albert who was defendant's brother was withoutsubstance, but on the allegation of damage the Additional District Judge had acceptedthe evidence of the architect Peiris and found that damage has been caused to the floorof the shop, kitchen floor and southern wall of the shop by acts of the defendant. Thesouthern wall was damaged by nine angle-iron spikes driven into it to hold timber racks.As a result the wall had a crack penetrating to the other side causing dislocation of theparapet gutter and rain water to drain into the shop. The wall was thus rendered weakand liable to collapse.
The two grounds on which a landlord can eject his tenant under section 12A (1) (d) ofthe Rent Restriction Act are 'wanton destruction' and 'wilful damage'. The formermeans that there must be proof that the premises have suffered total or partialdestruction.- In other words they must be totally or partially destroyed. To be wanton,such destruction must be the result of carelessness for or indifference to theconsequences or an. unrestrained disregard of them. 'Wilful damage' on the other handmeans damage caused 'intentionally' or 'deliberately'.
There was no evidence that the respondent was guilty of wanton destruction. On theother hand the damage to the southern wall caused by driving in nine angle-iron spikeswas a deliberate act and the resulting weakening of the wall making it liable to collapseis a direct consequence of the act of driving in the spikes. The kitchen floor was crackedand pitted by the splitting of firewood on it and the floor of the shop was damaged bythe planting of posts to support heavy rafters. Therefore the respondent is guilty ofcausing wilful damage to the premises within the meaning of section 12A (1) (d) of theRent Restriction Act.
The damage must be serious and not trivial and what exactly is serious damage must beleft to the discretion of the Judge. In the instant case the damage to the southern walltaken with the damage to the kitchen floor and to the floor of the shop must beregarded as serious and justifies ejectment.
Cases referred to:
Arumugam v. Carolis (1964) 67 NLR 84, 85, 86.
Clarke v. Hoggins (1862) 11 C.B. (N.S) 551-52 ; 142 E.R. 912.
Thangiah v. Yoonus (1972) 76 NLR 183.
Pieris v. Pieris (1977) 79 (1) NLR 99.
Appeal from judgment of the Court of Appeal.
P. Wimalachanthiran with A. P. Niles and C. S. Hettihewa for plaintiff-appellant.
A. Mampitiya with Ifthikar Hassim for defendant-respondent.
Cur. adv. vult.
Fonseka v. Wijetunge
June 20, 1984.
The Appellant instituted this action for the ejectment of theRespondent who was his tenant of premises No. 327, Galle Road,Mount Lavinia. The action was based on three grounds. They are :
arrears of rent from October, 1969 to 30th April, 1970,
that the Respondent had sublet a portion of his house to oneAlbert Wijetunge, and
(31 that the Defendant and/or persons residing in the said premiseshad caused wanton destruction and/or wilful damage to thepremises.
The Additional District Judge held in favour of the Appellant on allthree allegations and decree was entered accordingly. TheRespondent appealed and the Court of Appeal reversed the findings ofthe Additional District Judge, and allowed the appeal of theRespondent, and ordered decree to be entered dismissing theAppellant's action. The Appellant has appealed on all three groundswith special leave of this Court.
At the hearing of this appeal we informed Counsel for the Appellantthat he would be heard only on the allegation of subletting and theallegation that the Respondent has caused wanton destruction and/orwilful damage. I do not think there is any substance in the allegationthat the premises had been sublet to Albert the brother of theRespondent and I therefore reject that ground of appeal.
In respect of the allegation of damage the Additional District Judgehas accepted the evidence of Architect Pieris and found as a factthat –
the floor of the shop had been cracked and holes dug to planttimber posts to support neavy rafters carrying plantain bunches,
the kitchen floor cracked and pitted extensively by splittingfirewood on the floor, and
heavy angle-iron spikes had been driven into the Southern wallof the shop to hold timber racks. As a result the South-Westcorners of the wall had a crack penetrating to the outer side ofthe wall. This has caused the dislocation of the parapet gutterand the rain water to drain into the shop.
Sri Lanka Law Reports
 2 Sri l R.
In his report (P3) architect Pieris stated that heavy hammering of nineangle-iron spikes into the wall had caused the crack and the draining ofrain water into it had caused it to develop thereby rendering the vyallweak and liable to collapse.
Section 12A(1) (d) of the Rent Restriction Act (Cap. 274) asamended by Act No. 12 of 1966 permits a landlord to sue the tenantin ejectment where –
"(d) wanton destruction or wilful damage to such premises hasbeen caused by the tenant thereof or any other person at hisinstigation, or any other person residing in such premises."
Tambiah J. was inclined to follow the dictum of T. S. Fernando J. inArumugam v. Carolis (1) where he sought to give a meaning to theword "wanton" and stated at pages 85 and 86 –
"The word 'wanton' in the expression ' wanton damage' in thecontext in which it appears in the Rent Restriction Act should begiven its ordinary meaning. According to the Oxford EnglishDictionary, the word 'wanton' (adjective) literally means'Undisciplined'. One of the meanings of the word 'wanton' (verb) is'to deal carelessly or wastefully (with property, resources)'. I wasreferred by counsel to the meaning of the adverb 'wantonly as 'nothaving a reasonable cause' to be found in Stroud's JudicialDictionary. I find that the reference is taken from a judgment ofWilles J. in Clarke v. Hoggins (2). That learned judge was thereinterpreting a penal statute and he held that the mere fact of a manbeing instructed to deliver papers at a house of a third person wasno answer to a complaint charging him with having 'wilfully andwantonly' disturbed the party and his family by very violentlyknocking and ringing at the door at an unreasonable hour in thenight. I do not think the citation is of much assistance in interpretingthe adjective wanton in the statute we are here concerned with. Inthe context in which we find it in the Rent Restriction Act, I think theword means 'purposeless', and the expression 'wanton damage'means purposeless damage of the kind which irresponsible schoolboys and soldiers of an invading army have been known to cause oncertain occasions."
Fonseka v. Wijetunge (Samarakoon, C.J.j
Wijayatilake, J. approved and adopted this statement and the meaninggiven to the words "wanton damage" when delivering his judgment inthe case of Thangiah v. Yoonus (3). I do not find either decision helpfulin deciding this matter. The phrase "wanton damage" does not appearin section 12A (1) (of) of the Act and it is therefore not a ground uponwhich a landlord can eject his tenant. The two grounds are – "wantondestruction" and "wilful damage". The former means that there mustbe proof that the premises have suffered total or partial destruction. Inother words they must be totally or partially destroyed. To be wantonsuch destruction must be the result of carelessness for or "indifferenceto the consequences (or) an unrestrained disregard of them" (StroudVol. 5 Ed. 4 p. 2971). "Wilful damage" on the other hand meansdamage caused "intentionally" or "deliberately". Tambiah J., infollowing the dictum of Fernando J., was misled into the belief thatpurposeful damage was not wanton damage. There is no evidence inthis case to hold that the Respondent has been guilty of wantondestruction. On the other hand the damage to the wall caused bydriving in nine angle-iron spikes was a deliberate act and the resultingweakening of the wall making it liable to collapse is a directconsequence of the act of driving in the said spikes. I am therefore ofthe view that the Respondent has been guilty of causing wilful damageto the premises within the meaning of section 12A (1) (d) of the RentRestriction Act (Cap. 274).
It is the duty of a tenant to take due care of the premises and torestore the premises to the landlord at the end of the tenancy in thesame condition in which it was delivered to him reasonable wear andtear excepted. (Wille's Principles of South African Law 7th Edition p.422). He must not inter alia cause damage to the premises (Voet19.2.29). But this damage must be of a serious and not of a trivalnature. (Voet 19.2.18). Vide also Peiris v. Peiris. (4) What exactly isserious damage is a matter that "ought to be left to the discretion of aprudent and cautious Judge". (Voet 19.2.18). The above areprinciples of the Common Law applicable to the relationship oflandlord and tenant and I think they are apposite for the constructionof the provisions of section 12A (1) (c) of the Rent Restriction Act(Cap. 274). The damage caused to the Southern wall by drivingangle-iron spikes is so much that it is in danger of collapse. This is
Sri Lanka Law Reports
[1984J 2 Sri L.R.
serious damage and it will entail considerable expense to the landlordto restore it. This damage taken with the damage to the kitchen floorand the floor of the shop would also, in my opinion, justify an order inejectment. I therefore allow the appeal and direct that a decree inejectment and damages as prayed for in the plaint be entered in favourof the Appellant. He will be entitled to costs here and in the Court ofAppeal.
RANASINGHE, J. – I agree.
RODRIGO, J. – I agree.
FONSEKA v. WIJETUNGE