062-NLR-NLR-V-69-GIFFRY-Appellant-and-DE-SILVA-Respondent.pdf
SANSONI, C.J .—Oiffry v. de Silva
281
1965Present: Sansoni, C.J., and Sirimane, J.
GIFFRY, Appellant, and DE SILVA, RespondentS. C. 139164—D. C. Panadura, 8121
Rent Restriction Act—Destruction of leased premises— Termination of tenancy—Effect of tenant's handing over the leased premises to the landlord—Contract oftenancy—Failure of landlord to give possession of premises to tenant—Remedyof tenant.
Where a building which is the subject of a lease is burnt down without the faultof the landlord or the tenant, the tenancy comes to an end even if it fell withinthe Rent Restriction Act.
One way in which the statutory protection given by the Rent RestrictionAct to a tenant comes to an end is by the handing back of the premises to thelandlord.
Where, after a contract of tenancy is entered into, the landlord fails to givepossession of the premises to the tenant, the tenant is not entitled to takeforcible possession of the premises. His only remedy is an action for damages.
-A.PPEAL from a judgment of the District Court, Panadura.
H. W. Jayewardene, Q.C., with M. T. M. Sivardeen and D. S.Wijeioardene, for Defendant-Appellant.
G. Thiagalingam, Q.C., with NiJtal Jayawickrema, for Plaintiff-Respondent.
Cur. adv. wU.
October 8, 1965. Sansoni, C.J.—
The defendant gave premises No. 360, Main Street, Panadura, on rentto the plaintiff, who occupied them for some time prior to 4th August,1961. On that night, a fire broke out in these premises, and the plaintiffvaeated them in consequence of the damage done by the fire. Thedefendant put up a new building there, and when it was almost ready foroccupation the plaintiff took possession of it. The defendant complainedto the Police and the plaintiff was prosecuted in consequence of suchentry by him.
This action has been brought by the plaintiff for a declaration that heis a tenant of the premises, and entitled to remain there and to exerciseall the rights of a statutory tenant.
The defendant in his answer denied that the plaintiff is his tenant. Hestated that the plaintiff is in forcible and unlawful occupation of thepremises, and he asked for ejectment and for damages. After trial, thelearned District Judge gave judgment in favour of the plaintiff and thedefendant has appealed.
282
SANSONI, C.J.—Oiffry v. de Silva
The first matter for consideration is the effect that the fire had upon thecontract of tenancy. The learned Judge found that the frontage, whichconsisted of a framework of planks, and also one side of the premises whichconsisted only of a row of almirahs, were completely destroyed by thefire : so was the main roof of the building. The walls on the two othersides remained standing, and so did a room at the rear of the building.That room, however, on the plaintiff’s own evidence, was not in hisoccupation at the time of the fire, but had been rented by the defendantto a third party.
It is clear that after the fire there was nothing that the plaintiff couldoccupy as a building, and that is why he vacated the premises. Thelearned Judge correctly found that the building could not be used eitherfor purposes of habitation or business. Thus the subject matter of thelease, which was the building, had been completely destroyed, becausethere was nothing left except two walls. The law is clear that where abuilding which is the subject of a lease is burnt down without the faultof the landlord or of the tenant, as was the case here, the contract is atan end, for the subject matter of the contract is also at an end. By thecontract the tenant is entitled to the use and occupation of the building,and if there is no building to use and occupy, there is no existing contract—see Wille, Landlord and Tenant in South Africa, (5th Edition) page 255.
It is common ground that the tenancy was one which fell within theRent Restriction Act, but that makes no difference. The statutorytenancy was in respect of the building, and when the building perishedthe statutory tenancy also ceased to exist.
I do not think that the law in Ceylon is different from the English lawin this respect. In neither country can there be a statutory tenancy inrespect of bare land. I think the statement in Mr. R. E. Megarry’s bookon The Rent Acts (8th Edition) that “ the restrictions of the Acts do notinhere in the land after the demolition of the dwelling-house, but remainonly so long as it is there”, which was approved by Evershed M. R.in Morleys (Birmingham) Ltd. v. Slater 1, is applicable to Ceylon.
Apart from these considerations, it is proved by the evidence that afterthe fire the plaintiff vacated these premises, and gave up possession to thedefendant. That is how the defendant came to build a new house inplace of the old one which had been destroyed. The legal effect of theplaintiff handing over possession to the defendant was that the tenancywas terminated, and along with it the statutory protection of the plaintiffcame to an end. This has been decided by this Court in Ibrahim Saibov. Mdnsoor a. One way in which the statutory protection given by theRent Restriction Act to a tenant comes to an end is by the handing backof the premises to the landlord.
Mr. Thiagalingam relied on a promise said to have been made by thedefendant to the plaintiff about two days after the fire, that he wouldrepair the building and give it back to the plaintiff. Even if this is true,1 (1950) 1 K. B. 506.* (1953) 54 N. L. R. 917.
Dassanayake v. Kumarakulasinghe
283
it amounts to nothing more than an agreement by the defendant to letthe premises again to the plaintiff. For the breach of such an agreementthe only remedy is an action for damages. It certainly does not entitlethe plaintiff to take forcible possession of the building, as he appears tohave done in this case.
The plaintiff’s occupation from the time he went back into possessionof the building is therefore wrongful, and he must be ejected. He mustalso pay damages for his wrongful possession, and as he has stated thatthe statutory rent is Rs. 58-85 a month this would be the measure ofdamages. I
I would set aside the judgment of the learned Judge and dismiss theplaintiff’s action. The defendant is entitled to a decree of ejectmentagainst the plaintiff, and to damages at Rs. 58'85 a month from 16thDecember 1961 until he is restored possession. The plaintiff will alsopay the defendant’s costs in both Courts.
SnsiMANE, J.—I agree.
Appeal allowed.