Prcmaralnc v. Suppicth
Present ; Tambiab, J.
G. E. PREMARATNE, Appellant, and E. SUPPIAH, RespondentS. C. 45J1050—C. B. Gampaha, 7563fB
Landlord and tenant—Termination of tenancy by abandonment—Proof—Wrongfuldispossession of rented premises by landlord—Tenant's action for recoveryof possession—Jurisdiction of Court of Requests.
When a tenant temporarily departs from tho rented promises .with theintontion of rotuming, such temporary departure . does not constituteabandonment terminating the tenancy.
Whon a tenant who bas been dispossessed by his landlord brings an actionto be restored to possession of tho rented premises, the jurisdiction of the Courtto hoar tho case is determined by the monthly rental and damages claimedand not by the value of the promises. Such an action is based on a breachof contract of tenancy.
Appeal from a judgment of the Court of Requests, Gampaha.
II. W. Jayewardene, Q.C., with C. G. Weeramantry, Hannan Ismailand N. B. M. Daluxualte, for the defendant-appellant.
.1. IK. IK. Goonetuardene, with K. Charaivanamuttu, for the plaintiff-respondent.
Cur. adv. vull.
TAMBIAH, J.—Premaratne v. Suppiah
Rebru&ry 7, 1962. Tambiah, J.—
The plaintiff brought this action for the restoration of possession ofpremises No. 40 Bazaar Street, Gaxnpaha, which he had taken at arental of Rs. 20/- per mensem and for damages. He averred that thedefendant, his landlord, had unlawfully dispossessed him from the saidpremises. The defendant admitted that the plaintiff was his tenantbut stated that the plaintiff had abandoned the said premises towardsthe’end of May 1958. It was also urged that the Court of Requests hadno jurisdiction to try this case.
. | . .The plaintiff, in the course of his evidence, stated that prior to thecommunal disturbances of 1958 he was in occupation of the said premisesas a tenant of the defendant and that he was compelled to leave thepremises on the 27th of May 1958 as a result of communal disturbancesin the Gampaha area, which was predominantly occupied by theSinhalese. The.plaintiff further stated that he returned to Gampaha onthe 6th of June 1958 and found the said premises closed. Thereupon, onthe 10th of June 1958, he asked the defendant to give back the premises,and although the defendant had assured him that he would hand overthe possession of the premises after the communal disturbances, he didnot keep his promise. The plaintiff thereafter sent Rs. 40/- as rentfor the months of May and June 1958, but the defendant returnedRs. 26/50 out of it and refused to hand over the premises. The complaintof the plaintiff to the Village Headman proved to be of no avail. There-after, he brought this action. The defendant’s contention is that thetenancy had terminated as a result of the abandonment of the premisesby the plaintiff and he (the defendant) had rented the same to oneMr.j Fernando.
! The learned Commissioner has accepted the version given by theplaintiff and had disbelieved the defendant. He characterised theversion* of the defendant as “ just an excuse adopted to deny restorationof possession of these premises to plaintiff ”. The learned Commissioner,however, has erroneously taken the view that there had been a justi-fiable abandonment of the said premises by the plaintiff. In orderthat there might be abandonment not only should the tenant leave thepremises but his intention to abandon should also be clear. A personcannot abandon a right without intending to do so (vide Mouson v.Boehm1; Nagamani v. Vinayagamoorthy2). A temporary departure,therefore, with the intention of returning to the premises, does notconstitute abandonment.
In the instant case, at no time had the plaintiff showed any intentionof abandoning the said premises. He no doubt left the premises undercircumstances which compelled him to leave, but he has however express-ed his wish to re-enter possession within a reasonable time when he wasprevented from doing so by the defendant. He has, therefore, not-aban-
doned the said premises.
1 26 Ch. D. 398.
* (1923) 24 N. L. B. 438.
TAMBIAH, J.—Premaratne v. Suppiah
The argument of the counsel for the appellant is based on the mis-conception that there has been justifiable abandonment by the plaintiffand need not be examined any further in the light of the above conclusion.The counsel for the appellant also contended that the Court of Requestshad no jurisdiction to hear this case and in support of this argumenthe cited the ruling in Bastianappuhamy v. Haramanis Appuhamy1. In thatcase, the Divisional Bench had to consider the test of jurisdiction whena possessory action was brought by a lessee against a person whohas dispossessed him. The issues framed and adopted indicated that thetitle to the land would be investigated. No issues were, however,proposed to suggest that the value of the subject-matter of the action,,namely, the right to possession of the land, uncomplicated by the lease,was less than the value of the land. The Divisional Bench, therefore,held that the possessory action instituted in that case could not bemaintained in the Court of Requests. Soertsz A.C.J., discussed thetwo lines of authorities on the vexed question whether a lessee couldbring a possessory action in a Court of Requests where his interest inthe leasehold is less than Rs. 300/- but the value of the leased premisesis over this amount.
In the instant case, it is unnecessary for me to go into this question.Suffice it for me to state that the present action is not a possessoryaction but an action based on a breach of contract of tenancy. In thelanguage of the Roman-Dutch authorities, the action brought by theplaintiff is the actio conducti (Dig. 19.2.15 ; 126.96.36.199 ; Voet. 19.2.14.,
D.L. 1.5.12). The plaintiff had brought this action as tenant toenforce the terms of his contract and to be restored to possession, andthe title to the premises in question is not in dispute. As SoertszA.C.J., stated in Bastianappuhamy's case 2: “ In order to ascertain whetheran action is within or beyond the pecuniary jurisdiction of a Court,the nature and extent of the subject-matter in dispute has to beascertained, and for that purpose, it would be necessary to examinenot only the plaintiff’s claim, but also the defendant’s answer toit”. In Perera v. Liyanagama3 it was held that where an ownerof premises sues a trespasser for ejectment and damages and thedefendant, without disputing the plaintiff’s title to the property,contends that he is the lawful tenant of the plaintiff, the jurisdictionof the Court to try the ease does not depend on the value of the premises.
If the test of jurisdiction, in an action by the landlord to recoverpossession of his premises, is the value of the land, then no landlordcould bring an action for the recovery of possession of his land from histenant in a Court of Requests Avhere the land exceeds Rs. 300/- in value.The true test, in such cases, is not the value of the land but themonthly rental and damages claimed (vide Mudiyanse v. Rahman*).As regards continuing damages, it is to be noted that in anaction for ejectment and for damages for over-holding, the amount of amonth’s rent need not be added to the damages claimed to ascertain
»(1945) 4G N. L. R. 505 ; 31 C. L. W. 33.3(195G) 58 N. L. R. 454.
’(1945) 4G N. L. R. 505 al 508 ; 31 C. L. W. 33 al 35. *(1890) 2 N. L. R. 235.
BASNAYAKE, C.J.—Gunawardene v. Edirisinghe279
the value of the relief claimed (vide Usoof v. Zainudeen*). There isno reason why a different test should be applied when a tenanthas been dispossessed by his landlord and he. brings an action to berestored to possession.
For these reasons, I dismiss the appeal. The respondent is entitledto costs of appeal and costs in the lower Court.
G. E. PREMARATNE, Appellant, and E. SUPPIAH, Respondent