052-NLR-NLR-V-54-G.-W.-N.-HEPPONSTALL-Appellant-and-MRS.-PEARL-COREA-Respondent.pdf
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Tj. M. D. DE SILVA J.—Heppenstall v. Corea
1952Present: Swan J. and L. M. D. de Silva J.
G. W. N. HEPPONSTALL, Appellant, and MRS. PEARLCOREA, Respondent
S. O. 429—D. C. Colombo, 22,738
Rent Restriction Act, No. 29 of 1948—Section 27—“ Business premises
Premises taken on rent for the purpose of keeping a boarding house and usedin fact for that purpose and also to serve as a residence for the tenant are“ business premises ” within the meaning of section 27 of the Rent RestrictionAot.
Appeal from a judgment of the District Court, Colombo.
C. Thiagalingam, Q.C., with V. Arulambalam, for the plaintiff appellant.
H. V. Perera, Q.G., with A. M. Charavanamuttu, for the defendantrespondent.
Cur. adv. vult.
December 9, 1952. L. M. D. de Silva J.—
In this case it is conceded that the decree of the learned District Judgemust stand if we are of the opinion that the premises in respect of whichthis action has been brought are found by us to be “ business premises ”within the meaning of the Rent Restriction Act, No. 29 of 1948. We areof that opinion and therefore no other questions need be considered.
The learned District Judge has found on the facts that the respondenttook the premises on rent for the purpose of running a boarding andthat she has in fact used the premises for that purpose from the timeshe took it. He has accepted her evidence to the effect that in the courseof negotiations she told the appellant “ that she wanted the house to runa boarding for university students and that from the start he was awarethat she was going to run a boarding house ”. These facts are notcontested on this appeal. It is also a fact that she lived on thesepremises.
At the outset we would like to say that the English cases are not helpfulbecause the English statutes which they apply to various sets of factshave no resemblance to the local ordinance. To attempt to gain guidancefrom them for the purposes of this case would be dangerous. Thelearned District Judge holds on the authority of Tompkins v. Rogers 1that the premises in question are business premises. But the statutes
(1921) 2 K. B. 94.
L. M. D. DB SILVA J.—BepponstaU v. Corea
2-15
there considered and the considerations that there arose are vastlydifferent from the ones that are relevant in this case, and that case wasno authority for the proposition that the premises under considerationwere business premises within the meaning of the Rent Restriction Act,No. 29 of 1948. With all respect to the learned District Judge we feelthat he has erred in relying on the English case mentioned but theconclusion he has arrived at is right for other reasons.
Residential premises are defined in section 27 thus :—
“ Any premises for the time being occupied wholly or mainly for
the purpose of residence ”.*
Business premises are defined thus :—•
“ Any premises other than residential premises as hereinafter
defined ”.
Consequently it is the duty of a Court first to decide whether the premisescome within the definition “ residential premises ”. If they do not,then they are “ business premises ”. In our opinion in order to do thisthe character of the physical occupation of the premises judged by theuse to which they are put by the tenant must be examined. If thecharacter of the occupation so-judged is “ wholly or mainly for residentialpurposes ” then the premises are “ residential premises ”.
The premises in question were used by the respondent to run a hosteland also to serve as a residence for herself. There can be no doubtthat the main use to which they were put was the running of a hostel.It is clear therefore that the premises were not occupied “ wholly or mainlyfor residential purposes ” and therefore they are not “ residentialpremises ” within the meaning of the ordinance. Consequently theyare “ business premises ”.
In the case of Standard Vacuum Oil Company v. Jayasuriyathecourt had under consideration premises taken on rent by a firm in thecourse of its business for what, from the point of view of tbe business,could truly have been called business purposes or even wholly businesspurposes. They were used as a residence for one of the managers of thefirm and the provision of a residence for the manager was a businesspurpose. But the character of the occupation of the premises was foundto be mainly residential, because although a few incidents connectedwith the business took place on the premises, the chief use to which thehouse was put to was residence. Consequently the premises were heldto be residential premises although they may have been described,apart from the narrow question as to what was the character of theoccupation (as judged by the use to which it was put), as having beenrented by the firm for wholly business purposes. "
A notable difference between the facts of this case and the reportedcase is that in this case business was conducted on the premises, and wasthe main purpose of its occupation by the respondent. In the reportedcase only a very small amount of business was conducted on the premisesand the main purpose of occupation was residence.
1 (1951) 53 N. L. R. 22.
216
L. M. X>. DE SILVA J.—Hepponstall v. Corea
It should be added that it is a fortuitous circumstance in this casethat the business purpose of the respondent involved residence by-boarders. The ordinance has, by reference to the rent paid, givenprotection to persons who occupied buildings for residential or businesspurposes. The higher limit of Rs. 6,000 placed on the rental of businesspremises -which receive protection (as against the limit of Rs. 2,000 forresidential premises) indicates that the ordinance intended to protecta more valuable class of building where the sole or main purpose ofoccupation was’business. We feel it difficult to take the view that thismore extensive measure of protection is not available merely becausethe business carried on happens to be that of keeping a boarding house.We do not think that residence by the boarders is relevant to thedetermination of the character of occupation by the respondent.
For the reasons we have given we would dismiss the appeal with costs.
Swan J.—I agree.
Appeal dismissed.