040-SLLR-SLLR-1999-V-3-GNANANATHAN-v.-PREMAWARDANE.pdf
CA
Gnananathan v. Premawardane
301
GNANANATHAN
v.PREMAWARDANE
COURT OF APPEALWEERASEKERA. J. (PICA),JAYASINGHE, J.
A. NO. 44/93 (F).
C. COLOMBO NO. 6908/RE.JULY 8, 1997.
NOVEMBER 5, 11, 24, 1997.
Rent Act, No. 7 of 1972 – S. 22 (2) (d) – Nuisance – Evaluation of Evidence- Guilty – Mens Rea or intention considered – Prescription Ordinance, s. 10 -Plea of Prescription – Civil Procedure Code, s. 44.
The plaintiff-appellant instituted action for the ejectment of the defendant-respond-ent from the premises in suit, on the ground that the defendant-respondent wasguilty of conduct amounting to a nuisance to the adjoining occupier including theplaintiff-appellant – S. 22 2 (d). The defendant-respondent denied the allegation.The District Court dismissed the plaintiff-appellant's action.
On appeal –
Held:
Per Weerasekera, J.
“Nuisance in my view is one of fact and should be construed as normaland sober people in the country would construe it, though certainly not fancifulsomething, acts that not merely disturbs bourgeois delicacy or fastidiousnessbut an annoyance which troubles the mind and peaceful life and ordinary dayto day living of an ordinary reasonable person.0
The District judge erred in his conclusion when he preferred to act onlyon positive evidence and not draw the inference of how a reasonable manwould behave from the evidence of admitted facts.
The District Judge erred and misdirected himself factually in the evaluationof the evidence in regard to whether acts complained of were a nuisance
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and having erred in his understanding of them proceeded to err in lawby misdirecting his mind to relate it to contain a concept of mens rea orintention, as the word guilty is used in s. 22 (2)d.
It is settled law and that for salutory reasons lest all the basic rules oflaw particularly that of the rule of 'Audi Alteram Partem' that if a partyto an action intends to raise the plea of prescription it is obligatory onhis part to plead that in his pleadings.
Per Weerasekara, J.
"For the first time this defence of prescription was permitted after thecommencement of the evidence. A practice which in my view is both repugnantto law, reasonableness and fair play and from which Judges should desist."
Where the effect of the Prescription Ordinance is merely to limit the timewithin which an action may be brought. Court will not take the statute intoaccount unless it is expressly pleaded by way of defence.
Party cannot be permitted to present before even the trial Court a casematerially different from the case presented in his pleadings and in particulara plea of prescription.
APPEAL from the judgment of the District Court of Colombo.
Cases referred to:
Perera & Sons Ltd v. Pate – 56 NLR 334.
Brampy Appuhamy v. Gunasekera – 50 NLR 253.
Talwatte v. Somasunderam – 1996 vol. IV page 2 Bar Association LawJournal Report.
P. A. D. Samarasekera, PC with T. B. Dillimuni for substituted plaintiff-appellant.
N. R. M. Daluwatte, PC with Ravi Algama and C. Sarathchandra for defendant-respondent.
Cur. adv. vult.
CA
Gnananathan v. Premawardane (Weerasekera, J.)
303
March 20, 1998.
WEERASEKERA, J.
The plaintiff-appellant as landlord instituted this action for the ejectmentof the defendant-respondent from the premises in suit bearing assess-ment No. 137 1/1, Ananda Rajakaruna Mawatha, Colombo 10 andfor recovery of damages at Rs. 124.18 per month from 01. 10. 1987,on the ground that the defendant-respondent was guilty of conductamounting to a nuisance to the adjoining occupier including theplaintiff-appellant as contemplated by section 22 (2) (a) of the RentAct.
The defendant-respondent denied the allegation that he conductedhimself in a manner that it amounted to a nuisance to the otheroccupiers and the plaintiff in particular and further pleaded that thecondition of the premises had deteriorated though this formed no partof the plaintiffs case. Much as I tried to I have failed to understandthe import and meaning of this defence though an explanation hasbeen given by the defendant-respondent in evidence. The plea ofprescription was not taken in the defendant's pleadings.
At the trial the defendant-respondent whilst admitting that he wasthe tenant of premises No. 137 1/1, Ananda Rajakaruna Mawatha alsoadmitted that these premises formed an upper floor flat or apartmentof a set of 4 such flats. Below the defendant-respondent's apartmentwas the ground floor flat bearing assessment number 139. The flatto the opposite separated by the stairway and across was flat 1371/2 occupied by the plaintiff-appellant's son. Right below that flat 1371/2 occupied by the plaintiff's son was the ground floor apartment137 occupied by the plaintiff-appellant. It was also conceded that thepremises in suit were residential premises and that the standard rentwas below 100 rupees per month. The receipt of the letter of ter-mination of the tenancy was admitted though not its validity and thatthe Rent Act, No. 7 of 1972 applied.
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The learned District Judge by his judgment dated 15. 01. 1997,dismissed the plaintiffs action. This appeal is from that judgment.
I have given my very close consideration to the evaluation of theevidence and the reasoning of the learned District Judge in hisjudgment. Having considered the evidence, the learned District Judgein the totality of his reasoning has found and concluded that in generalthe acts complained of have and do amount to a nuisance butinasmuch as those acts of nuisance were not done intentionally bythe defendant-respondent and as no other occupiers have complainedof their being a nuisance proceeded to hold that the acts taken asa whole do not constitute what is contemplated as a nuisance in termsof section 22 (2) (d) of the Rent Act.
It is my considered opinion that the learned District Judge erredand misdirected himself factually in the evaluation of the evidence inregard to whether the acts complained of were a nuisance and havingerred in his understanding of them proceeded to err in law by misdirectinghis mind to relate it to contain a concept of mens rea or intentionas the word 'guilty' is used in section 22 (2) (d). This, in my viewresulted in a ludicrous misconception of the law.
How best should I examine this question than to quote Meggary.
Meggary at page 404 vol. I 11th edition on the Rent Acts statesas follows:
"Although the word guilty has been used to indicate some
degree of gravity it means no more than that the acts were
knowingly done. The tenant's intention in doing them is irrelevant."
Moreover, it is my view that adjoining occupiers are reasonablepersons as is the tenant and if an adjoining occupier complains ofan act or acts which he considers to be a nuisance and if the personwho is alleged to commits those acts not only attempts to justify thembut also admits them and proceeds to continue to do so, brazenly
CA
Gnananathan v. Premawardane (Weerasekera, J.)
305
and with arrogance then it is no mistake or done in brevity, but knowingthat brevity is no excuse the only irresistible inference I would be ledto would be one of knowledgeable unmistakable nuisance. Nuisancein my view is one of fact and should be construed as normal andsober people in the country would construe it though certainly notfanciful something, acts that not merely disturbs bourgeois delicacyor fastidiousness but an annoyance which troubles the mind andpeaceful life and ordinary day to day living of an ordinary reasonableperson.
Has the learned District Judge erred in applying these tests to thevarious acts complained of by the plaintiff-appellant? Admittedly, thedefendant-respondent, a retired pedagogue, was the tenant of theoriginal landlord Wesley College where he was a teacher before theplaintiff-appellant became the owner of the four apartments. It wouldnot have been unknown to him that the plaintiff was not of the sameethnicity and had to leave the premises during a period of civil strifeand the defendant-respondent had also made an application for thepurchase of the premises from the Housing Development Authoritywhich inquiry was concluded in plaintiff-appellant's favour about 2months prior to the filing of this action.
Now, consider the question of the wrong address been given bythe defendant-respondent in his mail and the complaint of nuisanceoccasioned by repeated such deliveries to the plaintiff-appellant. Thedefendant-respondent admits he did so but states it was a mistakebut knowledge he did have. But, is that how he reacted when theseletters were sent to him by the spouse of the plaintiff-appellant. Inmy view the most ordinary reasonable inference I could draw fromP7 is that the person who wrote it was arrogant and an unrepentantannoyer. P8 clearly confers this view that is that even the telephonedirectory gives the plaintiff-appellant's assessment number and not thatof the defendant-respondent. If as the defendant-respondent statesthe original number given to him when he first became a tenant was137 what proof is there of this fact. D1 to D25 though referred toby him in his examination in chief was not tendered to Court or to
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counsel for cross-examination with the excuse that they have beenlost. Such lame excuses leave me with that pungent smell of a personspeaking the untruth and in any event the only inference any rea-sonable person could come to by such non-availability of D1 to D25is to draw an adverse inference on the facts they seek to support.
Consider the other category of acts of nuisance complained ofregarding the sale of goods by advertisement. The defendant-respond-ent admits he is the tenant of premises No. 137 1/1 which is abovethe ground floor flat No. 139. Why on earth should any reasonableordinary sober person advertise his goods for sale by P2 to P4 bystating they were available over (or upstair of No. 137) except forany ordinary sober reasonable person to come to the inference thatit was to cause a nuisance and annoyance to the peaceful enjoymentof his life of the occupier of premises No. 137. And, why on earthshould it be advertised that the goods could be seen after 1 p.m.and that on Sundays as evidenced by P1 except to annoy and causenuisance to the plaintiff-appellant. All these acts were in 1976 to allof which the plaintiff-appellant complained. All this while the defendant-appellant admits that he knew in 1976 that the correct number of hisapartment was 137 1/1 and that he lived above premises number 139and not No.137. I am, therefore, unable to equate this behaviour andthe consequent acts to fanciful acts, or made in jest. If it were soit must have been with a perverted sense of humour.
Consider the question of the Registration of the telephone in theDirectory as being in premises number 137 which had been broughtto his notice by P8 in as far back as 1975 and he continues to Registerit nevertheless upto 1984 as evidenced by P16 and P17 and theRegistration of a number of different numbers of cars as is evidencedby P10 to P12 under the plaintiff-appellant's assessment number 137.The electricity connection is taken under assessment number 137 asevidenced by P24. The defendant-appellant is a pensioner and hispension returns are directed to postal address No. 137.
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Gnananathanv. Premawardane (Weerasekera, J.)
307
The learned District Judge had considered the unauthorised waterconnection by the defendant-respondent to have interfered with theplaintiff-appellant’s repair of the premises. To digress the repair wasconsequent to the damages caused during the civil commotion in 1982.It was when the plaintiff-respondent was a refugee in Jaffna from hisown house at No. 137, Ananda Rajakaruna Mawatha that admittedlythe defendant-respondent had taken this connection. It was admittedby the defendant-respondent in evidence that this unauthorised con-nection interfered with the supply of water to the other upstair flat.How then could the learned District Judge and by what process ofreasonable evaluation could he conclude that even though the actinterfered with the plaintiff-appellant's repair it was not an act ofnuisance. The learned District Judge clearly erred and misdirectedhimself to arrive at the reasonable conclusion.
I am, therefore, of the view that the learned District Judge'sevaluation of the fact of nuisance is perverse and he has misdirectedhis mind to come to an incorrect evaluation. All these acts enumeratedand the historical record and sequence and the defendant-respondent'sown admission in regard to some of them that he did make a mistakeand knew that the correct number of assessment of the apartmenthe occupied was 137 1/1, but, his persistence and continuance touse the plaintiff-appellant's residing house number is in my view clearlyand factually acts of nuisance committed knowingly, definitely notfanciful and the cumulative effect of which I am undoubtedly certainwould have seriously interfered with the peaceful life of any ordinarybeing and in particular the plaintiff-appellant. Even though intentionis no part of the legal requirement of section 22 (2) (d) of the RentAct if these acts and conduct do not indicate intention I cannotconceive of what could be inferred as to be intentional.
The next aspect that has to be investigated is whether the plaintiff-appellant has to discharge a burden of establishing by direct evidencethat and by the evidence of adjoining owner they were also the subjectof the nuisance.
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In this regard I am guided by the words of Sansoni, J. in the caseof Perera & Sons Ltd v. Patd') :
"I do not think it was necessary that evidence should have beengiven by the plaintiff herself, that she considered the conductcomplained of a nuisance. Upon proof capable of having this effectthe Court is entitled to infer that it had that effect, even if thereis no positive evidence that it did. The Court is entitled to presumethat the adjoining occupiers are reasonable people to whom theconduct is reasonable."
In this action the plaintiff-appellant gave evidence in support of hiscontention that the various acts he complained of were a nuisanceto him. The defendant-respondent has admitted that the adjoining flatwas occupied by the plaintiff's son but that at that time complainedof there was another school teacher in residence. The defendant-respondent has admitted that he did stack broken chairs, worn outtyres, etc., on the landing at the top of the common stairway but thatthe tenant then in occupation had not complained. I prefer to presumethat the previous tenant a school teacher in this same school as thedefendant-respondent was a reasonable ordinary person and that suchadmitted conduct of the defendant-respondent would by inferenceamount to a nuisance though there is no positive evidence in thatbehalf. In any event consider the position of a number of tenantsoccupying high rise tenanted buildings consisting of flats and apart-ments, a common phenomena in the context of modern day urbanhousing. If, for instance one of the tenants on such a high rise tenantedbuilding were to act as is complained of it would be a futile extravagantexercise to expect the positive evidence of all the tenants who usethe stairway whereas a more prudent exercise would be to infer theimpact of such conduct on an ordinary reasonable tenant in theabsence of positive evidence. The learned District Judge, therefore,erred in his conclusion when he preferred to act only on positiveevidence and not draw the inference of how a reasonable man wouldbehave from the evidence of admitted facts.
CA
Gnananathan v. Premawardane (Weerasekera, J.)
309
At this appeal no arguments were urged on the legality of the noticeto quit. I, therefore, do not propose to examine that question.
The learned District Judge did not direct his mind rightfully in thejudgment to issues 7, 8 and 9 in view of his finding that the actscomplained of did not amount to a nuisance in terms of section 22
(d) of the Rent Act by reason of his finding that the acts complainedof were not intentional acts of nuisance.
In view of the reasons set out hereinbefore my considered viewis that the learned Additional District Judge has misdirected himselfin the evaluation of the evidence on the fact of nuisance and its legalimplication and that his conclusions are in error both on the facts andthe law. It is, therefore, necessary for me to consider the import ofissues 7, 8 and 9 which I shall now proceed to do.
Presumably, the defence taken in the issue is based on section10 of the Prescription Ordinance. The acts of nuisance complainedof are thus sought to be shown to have taken place long prior tothe 3-year period. To that the plaintiff-appellant's answer is that theapplication of the defendant-respondent to the National Housing De-partment for the premises to purchase was finally concluded only 2months before the institution of the action.
Be that as it may the position in law is quite clear and settled.In the case of Brampy Appuhamy v. GunasekeraP Basnayake, J. held:
"Where the effect of the Prescription Ordinance is merely tolimit the time within which an action may be brought, the Courtwill not take the statute into account unless it is expressly pleadedby way of defence."
It is, therefore, settled law and that for salutary reasons lest allthe basic rules of law particularly that of the rule of audi alteram partemthat if a party to an action intends to raise the plea of prescriptionit is obligatory on his part to plead that in his pleadings. I say salutary
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because reason, justice and fair play demands that the opposing partybe given an opportunity of making such a plea and that party or noparty should not be taken unawares of a defence taken that the actionis barred by lapse of time.
In this action the answer did not state that the cause of actionwas prescribed in law. For the first time this defence was permittedafter the commencement of the evidence. A practice which in my viewis both repugnant to law, reasonableness and fair play and from whichjudges should desist. In any event the defendant-respondent hasdenied all the acts of nuisance acts pleaded, but also for someinexplicable reason pleaded non-deterioration. Therefore, a piea ofprescription cannot arise without the act or acts of nuisance beingadmitted whereas the defendant-respondent has in his answer spe-cifically denied them. The plea is, therefore, not only in law, but alsoat the stage it was so done, both bad in law, but also contradictoryin itself.
The acceptation of these issues is also repugnant to the lawinasmuch as the date of commencement of prescription is vague inthat the absence of a plea as to whether it was the acts of nuisanceor the date of the notice to quit. It is, therefore, additionally for thesame reason of reasonableness that as is required by section 44 ofthe Civil Procedure Code that a plea of the reasons for the non-operation or application of prescription is mandatory that it is equallyreasonable and fair that the law requires that the defence of prescrip-tion be specifically pleaded in the answer.
I am, therefore, of the view that issues 7, 8 and 9 should not havebeen accepted as issues for adjudication and that the order acceptingthem is bad, insupportable and made per incuriam. I, therefore, rejectthem.
In any event issues 7, 8 and 9 are issues involving question offact and law. Can these questions be now-considered in the Courtof Appeal. I do not think that this plea can be considered as it now
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Gnananathan v. Premawardane (Weerasekera, J.)
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arises for the first time in appeal as it had not been considered bythe learned Additional District Judge.
Chief Justice G. P. S. de Silva in Talwatte v. Somasundarant3):
"In this connection it is well to bear in mind the provision ofexplanation 2 of section 150 of the Civil Procedure Code. A fortioria party cannot be permitted to present in appeal a case materiallydifferent from the case presented before the Court".
I go further and state a fortiori a party cannot be permitted topresent before even the trial Court a case materially different fromthe case presented in his pleadings and in particular a plea ofprescription. The effect of the Prescription Ordinance is that it onlylimits the time within which an action may be brought. This, in myview, is reasonable, fair and just.
For these reasons I must set aside the judgment of the learnedDistrict Judge dated 15. 01. 1997.
The appeal is allowed with taxed costs. Enter judgment for theplaintiff-appellant in terms of the prayer to the plaint. The plaintiff-appellant will be entitled to taxed costs in the lower Court.
JAYASINGHE, J. – I agree.
Appeal allowed.