GUNARATNE v. GAFFOOR

039-SLLR-SLLR-1982-2-GUNARATNE-v.-GAFFOOR.pdf


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Naichiya v. Marikkar (Sharvananda, J.)
719
GUNARATNE
v.
GAFFOOR
SUPREME COURT
WEERARATNE, J., SHARVANANDA, J., WANASUNDERA, J.,RATWATTE J., AND SOZA, J.
S.C. APPEAL NO. 47/81 – S.C. SPL. L/A NO. 33/81, C.A. NO.763/75 (F),D.C. AVISSAWELLA 13736,
SEPTEMBER 23 AND OCTOBER 13, 1982.
Lease of business – Jurisdiction of Court of Appeal under 1978 Constitution toset aside judgment of Supreme Court under the Administration of Justice Law,No. 44 of 1973. – Civil Procedure Code, section 769 (2)
One Siyadoris Appuhamy was the tenant of No. 18, Yatiyantota Road, Avissawellawhere he commenced a Hotel business in 1966. After running it for three orfour months he leased the business to one Rauff by Agreement dated 28.8.66.The lease was to end on 17.10.71. The monthly payment to Siyadoris was
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Rs. 77/40. In 1968 Siyadoris became an employee of Rauff and remained so tillRauff gave up the business in 1971. After Rauff handed over the business,Siyadoris entered into another lease with the defendant for one year from 7.1.72,On the expiration of one year the defendant refused to hand over possession.
Siyadoris instituted action and the District Judge held in his favour on the groundthat what was leased was the business and not the premises.
The defendant gave notice of appeal under Section 318 of the Administration ofJustice Law (AJL). When the appeal came up for hearing on 26.7.78 the appellantwas#absent and unrepresented. The Supreme Court established under the AJLdismissed the appeal acting under Section 769 (2) of the Civil Procedure Code.
On 12.7.79 defendant filed a motion for relisting, unsuccessfully. Another motionwas filed on 24.8.79 and the Court of Appeal in the absence of objection listedthe appeal. The Court of Appeal set aside the judgment of the District Judge.
An application for special leave was made. One of the grounds was that theCourt of Appeal under the 1978 Constitution had no jurisdiction to set aside ajudgment of the Supreme Court established under the AJL.
Held –
1. The Court of Appeal had jurisdiction to set aside the judgment of theSupreme Court and order relisting.
.2. What was leased to the defendant respondent was the business and not thepremises.
Cases referred to:
Walker Sons and Co. (U.K.) Ltd. v. W.P. Gunatillake and others S.C. Ref.111979; C.A. Application 365176; S.C. Minutes of 28.11.1979
M.Z. Salith v. Asgar KadibhoyS.C. Appeal34180;S.C. Miunutesof30.10.1980
Pathirana v. de Silva (1978) 79 S.L.R. 11 265
Sisam v. Mustaffa (1981) 1 S.L.R. (S.C) 59
Abeypala v. Abeykirthi (1981) 1 S.L.R. (S.C) 87
APPEAL from judgment of the Court of Appeal.
J.W. Subasinghe, S.A. with W.P. Gunatilake and D.J.C. Nilanduwa for substitutedplaintiff-appellant.
H.L. de Silva, S.A. with Miss P. Seneviratne and Nirmal Fernando for respondent.
Cur.adv.vult.
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November 4, 1982.
RATWATTE, J.
The original plaintiff Siyadoris Appuhamy (referred to hereinafteras Siyadoris Appuhamy) instituted this action on 31.08.1973 for theejectment of the defendant-respondent (referred to hereinafter as thedefendant) from the business and business premises No. 18, YatiyantotaRoad, Avissawella and for the recovery of arrears of monthly paymentsas per the Lease Agreement referred to in the Plaint till 7.1.f973amounting to Rs.970/- and for damages. Siyadoris Appuhamy averredthat: (a) He was the owner of the Hotel business, its name, goodwilland the fittings therein, carried on under trade licences issued bythe Urban Council of Avissawella at premises No. 18, YatiyantotaRoad, Avissawella. (b) He had by Lease Agreement No. 11399 dated7.1.1972 attested by D. Ranawaka, Notary Public, produced markedP14, leased the said business, its name, goodwill and the fittings andother articles referred to in the schedule to P14, to the defendantfor a period of one year commencing from 7.1.1972 subject to theterms and conditions laid down in P14. (c) Although the lease periodspecified in P14 expired on 7.1.1973 the defendant in spite of SiyadorisAppuhamy’s objections and in violation of the conditions of P14continued to carry on the said business, (d) The defendant had notpaid the monthly payments in respect of the business according toP14 as from April 1972.
Siyadoris further pleaded that he had on several occasions requestedthe defendant to hand over the business to him but the defendantrefused to do so. Siyadoris Appuhamy accordingly averred that acause of action had accrued to him to sue the defendant for thereliefs claimed in paragraph 7 of the plaint.
The defendant in his answer denied that Siyadoris Appuhamy wasthe owner of the hotel business and the articles therein referred toin the plaint. He admitted the bare execution of the Lease AgreementP14, but pleaded that the Agreement is void and of no avail in lawas it was executed to circumvent the Rent Acts. The defendantfurther pleaded that on an application made by him to the RentBoard of Avissawella the Board issued a Certificate of Tenancy anddetermined the authorised rent at Rs. 8/96 per month. The defendantclaimed to be the owner of the hotel business carried on in thepremises under the name of Muslim Hotel* He also pleaded that hev tenant of Siyadoris Appuhamy and was entitled to the
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protection of the Rent Act No. 7 of 1972. The defendant made aclaim in reconvention for the sum of Rs.6,500/- which he stated wasexcess rents paid to Siyadoris Appuhamy.
After trial,)the -learned District Judge entered judgment in favourof Siyadoris.Appuhamy as follows: For the ejectment of the defendant,,for the -sum-of Rs. 970/- as arrears of lease money till 7.1.1973 andfor damages at Rs. 100/- per month from 7.1.1973 till the businessis restored to-Siyadoris Appuhamy. Siyadoris Appuhamy was alsoawarded the costs of the action.
The defendant by notice dated 8.12.1975 gave notice of appealagainst the judgment in terms of Section 318 of the Administrationof Justice'Law No. 44 of 1973 (referred to hereinafter as the A.J.L.).The defendant did not lodge written submissions as he was requiredto do under the provisions of Section 330 (1) of the A.J.L. In termsof Section 330 (3) if an appellant fails without reasonable cause tolodge his written submissions within the prescribed period “the appealshall be deemed to have abated.” But the Civil Courts Procedure(Special Provisions) Law No. 19 of 1977 came into operation on.15.12.1977. In terms of Section 3 of that Liaw; Chapter IV of theA.J.L. which dealt with Appeals Procedure, was repealed, and interms of Section 4 the Civil Procedure Code was deemed to havebeen in operation as if the same had not been repealed and the saidCode was to continue to be the law governing procedure and practicein all Civil Courts. The defendant’s appeal came up for hearing on26.07.1978 before a Bench of three Judges of the Supreme Courtestablished under the A.J.L. On that date the defendant was absentand unrepresented. The Court acting under Section 769 (2) of theCivil Procedure Code, considered the appeal and made order dismissingthe appeal with costs. Thereafter the decree was entered and sealedand the record was returned to the District Court. On 21.12.1978Siyadoris Appuhamy (tied leaving a Last Will apppinting JayasiriGunaratne the present Substituted plaintiff as the sole heir andexecutor. On 12.07’1979 the Attomey-at-Law for the defendant hadfiled a motion moving that the appeal be relisted. This motion hadbeen put up for an order to the President of the Court of Appealwho was also the Judge who presided when the appeal was disposedof on 26.07.1978. He made order refusing the application to relistthe appeal. This order was signed only by the President of the Courtof Appeal as the other two judges who heard the appeal, were nolonger in office. Thereafter on 24.08.1979 another motion *" '
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by Counsel for the defendant Mr. H.W. Jayewardene. Q.C., movingthat the Appeal be re-listed for the reasons stated in the motion.On this motion,, order .had been made by the Court of Appeal tocall for the. record from the District Court.. On. that, date, the Courtmade Order substituting Jayasiri Gunaratne in. the room of thedeceased plaintiff, .Siyadoris Appuhamy. As regards the motion filedby .Mr. Jayewardene, Q.C., as the Counsel for the substituted.plaintiffobjected to. the re-listing of the appeal Order was, tnade. to list thematter for argument in due course. On 10.10.1980 the. .pjatter wastaken up and Counsel for both the, appellant ..and the*, respondentwere present. The Court made the following Order:^>'•»'
“As there is no objection to the re-listing of this appeai^Courtmakes Order allowing the application to re-list. Let tftis'appealbe listed for argument on 7.11.1980 which is a date”convenient•to both Counsel before any Bench.”
The appeal ultimately was taken up for hearing on 2.3.1981. Afterhearing arguments the Court.,pf Appeal delivered its judgment on30.3.1981 setting aside the judgment of the learned District Judgeand dismissing the plaintiffs action with costs. The claim in reconventionof the defendant was also dismissed. The substituted plaintiffsapplication for Leave to Appeal to the Supreme Court was refusedby the Court of Appeal. An application to this Court for SpecialLeave to appeal was allowed.
One of the grounds of appeal urged by the substituted plaintiff isthat the judgment of the Court of Appeal is not a valid judgmentas the Court of Appeal constituted under the 1978 Constitution hadno jurisdiction to set aside a judgment of the Supreme Courtestablished by the A.J.L.(Vide paragraphs 19 (f) and (g) of theApplication for Special Leave to Appeal).* When this-.appeal wastaken up for hearing on 23.09.1982 by.-this-Court we, heard bothCounsel for the substituted plaintiff and the^defend^rit on the groundreferred to above.- At the close of their arguments pn .that questionwe rejected the .said ground of appeal, and inforjned Counsel, for thesubstituted ,plaintiff that we would hear argunjents^ on the. merits, ofthe appeal. We also informed Counsel that.we would be, giving,ourreasons for rejecting the said gro,und of appeal in our final judgment.
• I shall now give our reasons.-
Learned Counsel fcir the substituted plaintiff, ML Suba«iinghe basedhis argument chiefly on the provisions of Article 169 (5) of the 1978
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Constitution which reads as follows:
“No appear shall lie from any judgment, order or decree ofthe Supreme Court established under the Administration ofJustice Law No. 44 of 1973, to the Supreme Court createdand established under the Constitution but such judgment,'order or decree, as the case may be, shall be final as betweenthe parties' to the action, application or other proceeding inwhich such judgment, order or decree was made:
TMfe proviso to paragraph (S) has no relevance to the question inissue. Mr. Subasinghe submitted that in view of the imperativeConstitutional provisions of Article 169 (S) a judgment of the oldSupreme Court is not amenable to any further judicial proceedingsand cannot therefore be set aside. He argued that the Supreme Courtestablished under the A.J.L. was at ihe apex of the judicial structureat that time and that its judgments are binding on the Court ofAppeal established by the 1978 Constitution. He cited in support ofhis arguments the case of Walker Sons and Co. (U.K.) Ltd. vs. W.P.Gunatilleke and others (1). That too. was a reference made to-theSupreme Court by the Court of Appeal in. terms of Article 125 (1)of the Constitution. The matter was heard by a Divisional Bench offive Judges. The matter arose in this way: There were two similardecisions of the Supreme Court constituted under the A.J.L. dealingwith ' the question at issue before the Court of Appeal in thatApplication No. 365/76. The question arose whether the Court ofAppeal was bound by the*two decisions of the old Supreme Court.The Court of Appeal referred the question to the Supreme Court.The majority of the Court (four Judges) decided that the ratiodecidendi of the two cases decided by the old Supreme Court isbinding on the Court of Appeal. Mr. Subasinghe’s contention thereforewas that the Court of Appeal had no jurisdiction to set aside thejudgment of the old Supreme Court dated 26.06.1978 and to ordera relisting of the Appeal. Accordingly he contended that the judgmentof the Court of Appeal dated 30.03.1981 is a nullity. I am of theview that the judgment in Walker’s case (referred to above) has noapplication to the question at issue before us in the instant case.
The application to re-list the appeal was made on 24.08.1979. Thatapplication was supported and allowed on 10.10.1980 and the provisionof law under which that was done is the proviso to Section 769 (2)of the Civil Procedure Code. The 1978 Constitution came intooperation on 07.09.1978. The question that arises is when an applicationis made to the Court of Appeal subsequent to 07.09.1978 regarding
SCGunaratne v. Abdul Gaffoor (Ratwatle. J.)725
a judgment delivered by the old Supreme Court, is the Court ofAppeal competent to deaJ with it? Learned Counsel for the defendant,
L. de Silva contended that the answer is in the affirmative. Hesubmitted that the Court of Appeal derives its jurisdiction by reasonof the second limb of article 169 (2) of the Constitution, which statesthat: “Unless otheiwise provided in the Constitution, every referencein any existing written law to the Supreme Court shall be deemedto be a reference to the Court of Appeal.” In view of this provisiontherefore the reference to ‘the Supreme Court’ in the proviso, toSection 769 (2) of the Civil Procedure Code is deemed to be areference to the Court of Appeal. Then there are the provisions ofparagraph 3 of Article 169, which states that all appellate proceedingsetc. pending in the Supreme Court established under the A.J.L. onthe day preceding the commencement of the Constitution shall standremoved to the Court of Appeal and the Court of Appeal shall havejurisdiction to take cognizance of and to hear and determine thesame. An appellate proceeding would ordinarily include a re-listingapplication. I am of the view that on a reading of paragraphs-(2)and (3) of Article 169 of the Constitution it is clear that the Cdurtof Appeal 'had the jurisdiction to vacate the judgment of the oldSupreme Court dated 26.07.1978 and to order the re-listing of theAppeal. This question arose earlier before this Court in the case ofM.Z. Salith vs. Asgar Kadibhoy (2). In that case judgment had beenentered against the defendant by the District Court. The defendantgave notice of appeal in terms of the provisions of the A.J.L. Thatappeal came up for hearing before the then Supreme Court on30.06.1978. The defendant-appellant was absent and unrepresentedat the hearing and the appeal was dismissed with costs. The decreehad been entered and sealed and the record sent back to the lowercourt, which issued writ of possession and writ of execution. Thewrit was partly executed. Thereafter the defendant on 06.09.1978filed an application under Section 769 (2) of the Civil ProcedureCode to have the appeal re-instated. That application came up forhearing on 28.02.1979 after the promulgation of the 1978 Constitution.The Court of Appeal by its Order of 15.03.1979 vacated the-Orderof the Supreme Court and re-instated the appeal. The appeal wassubsequently taken up for hearing and the Court of Appeal by itsjudgment dated 13.03.1980 allowed the defendant’s appeal and dismissedthe plaintiffs action. The plaintiff appealed to the Supreme Court.Wanasundera, J., in the course of his judgment with the other two
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judges agreeing stated as follows:
“At the hearing of the appeal before us, Counsel for theplaintiff-appellant submitted that the Court of Appeal had nojurisdiction in law to set aside the judgment dated 30.06.1978after decree was entered and sealed. In my view this contentionis not tenable. I agree with the judgment of the Court ofAppeal dated 15th March 1979 holding that the entering of adecree and sealing thereof does not per se debar the Courtfrom acting under section 769 (2) of the Civil Procedure Code,and . further that the provisions, of .Article 169 (5) of theConstitution, of the Democratic Socialist Republic of Sri Lankado,not shut out the application.. I hold that in the circumstancesthe Court of Appeal was competent to entertain the applicationand was justified in vacating the exparte judgment and decreedated 30th June 1978 and directing the re-instatement. of theappeal.1'
We are in agreement with the judgment of Wanasundera, J. Forthese reasons we reject the argument that the Court of Appeal hadno jurisdiction to set aside the judgment of the old Supreme Courtand to order a re-listing of the appeal.
I shall now proceed to consider the appeal on its merits. Thequestion that arose for determination in this case was whether theLease Agreement P14 was a lease of a business or whether it wasonly a blind to cover the letting of the premises. Siyadoris Appuhamy’scase was as follows: He had been the tenant of premises No. 18,Yatiyantota Road, Avissawella from the year 1940 under the ownerPedoris Appuhamy. He was running a boutique in the premises. Inthe years 1961 and 1962 he renovated the premises and added aroom to provide additional space for his boutique. For this purposehe employed a mason called Juwa who gave evidence in this casefor the plaintiff. In 1966 he commenced a hotel business in thepremises and ran it for about 3 or 4 months and thereafter he handedover the business to Mohamed Ismail Rauf. On 28.08.1966 he obtainedfrom the Urban Council, Licence No. 5/66 which has been producedmarked P3 to run the hotel business. On the same day on theInformal Agreement P4, he handed over the business to MohamedIsmail Rauf who was to run the business for one year. Rauf was topay Siyadoris Appuhamy a sum of Rs. 77/50 per month from theprofits of the Hotel. According to P4, Siyadoris Appuhamy also gaveover to Rauf the furniture and fittings of the Hotel, which are setout in the Agreement. Thereafter Siyadoris Appuhamy obtained in
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his name Hotel Licenses P6, P8. P12 and P13 for the years 1967,1968, 1969, 1970, and 1971 respectively and in respect of those fiveyears he entered into the Lease Agreements P5, P7, P9 and PILThese Agreements were each for a period of 1 year and were similarto the first Agreement P4. The last Agreement Pll was to'end'on17.10.1971. The defendant became an employee in the hotel businessunder Rauf in February 1968 and continued as an employee underRauf till about the middle of 1971 when Rauf expressed a desijje togive up running the hotel business. Siyadoris Appuhamy then enteredinto the Lease Agreement P14 with the defendant on 07.01.1972 andhanded over the business to the defendant along with the furnitureand fittings which are set out in the Schedule to P14. The HotelLicence P15 dated 05.05.1972 was obtained by Siyadoris Appuhamyin his name. P14 was for a Reriod of one year from 07.01.1982. Onthe expiry of that period of one year the defendant refused to handover the hotel business and premises to Siyadoris and continued torun the hotel himself. The plaintiff therefore instituted this actionon 31.08.1973.
In support of his case Siyadoris Appuhamy called as his witnessJuwa the mason and Rauf. He also called a Revenue Inspector fromthe Urban Council to produce the Hotel Licenses referred to above.
The defendant did not give evidence in this case. He only calledone witness, an employee of his in the hotel business named Caliph.Caliph produced certain documents. In April 1972 the defendantmade the Application D2 to the Rent Board. Avissawella in ProceedingsNo. 35/72 claiming that he was a sub-tenant of Siyadoris Appuhamy.He prayed for a Certificate of Tenancy and for a determination ofthe authorized rent of the premises. The respondents to this Applicationwere the owner of the premises D.S.D.Wijesinghe and SiyadorisAppuhamy. After inquiry the Rent Board made its Order on 25.05.1972.By its order the Rent Board decided to issue a Certificate of Tenancyand determined the authorized rent at Rs. 8/94 per month. SiyadorisAppuhamy appealed against this Order to the Rent Board of Review,which by its Order dated 10.09.1974, D4, dismissed Siydoris Appuhamy’sappeal subject to the variation that the determination of the RentBoard regarding the authorized rent was set aside and the Boardwas directed to hear evidence on that point and thereafter give thebasis on which the authorized rent was computed. The defendanttook up the position at the trial that the Order of the Rent Boardof Review was final and conclusive by virtue of Section 40 (11) ofthe Rent Act No. 7 of 1972.
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1 think it is opportune at this stage to mention that both theDistrict Court and the Court of Appeal have considered this caseon the basis that a Certificate of Tenancy had been issued to thedefendant. It transpired in the course of the arguments before usthat no such .Certificate had been produced in this case. The entiretyOf .the .proceedings before th.e Rent Board and the Board of Reviewwere, produced.at the .trial,.There is nothing in these proceedings toindicate that a Certificate of Tenancy had in fact been issued.According .to the Order of the Rent Board, D6, only a. decision hadbeen made to issue a Certificate. –
The learned District Judge after considering the oral and documentaryevidence in this case and the judgments in two reported cases referredto in his judgment, came to the conclusion that what was leased tothe defendant was the business of the Hotel only and not the premises.He also rejected the contention of the defendant regarding the effectof the Order of the Rent Board of Review.
As I have stated earlier the main question that arises for determinationin this case is whether the document P14 was a lease of a businessor the letting of a premises. There are several decided cases in ourLaw Reports regarding this question. I need refer only to the threemost recent cases on this subject. They are Pathirana v. de Silva (3),Nisam vs. Mustaffa (4) and Abeypala v. Abeyakirthi (5). In all thesethree cases the facts were similar to the facts of the instant case.Previous decisions of the- Supreme Court were considered in thesethree judgments. The ratio decidendi that emerges from a considerationof these, case's is that in order to determine this question one has,as stated by. Ismail, J. in Abeypala vs. Abeyakirthi (3) at page 89:
“to examine the documents by which possession has beenhanded over in order to determine whether there has been aletting or sub-letting of premises or whether the lessee wasmerely permitted to occupy the premises as a licencee for thesole purpose of carrying on the business until the business washanded back to the lessor.”
With these principles in view I shall now examine the documentP14. The document is in Sinhala. It bears the heading “Lease ofMovable Property – Rs. 1,100/-”. The operative part of it states thatthe hotel business carried on under Licence No.52/71 (i.e.P13) belongingto Siyadoris Appuhamy at the premises in question and.its name,firm and goodwill and the movable effects used for the conduct ofthe business as described in the schedule, are leased as fryt- v
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for a lease rent of Rs. 1,100/- for one year, subject to the; te.rmsand conditions set out. There are 9 conditions. They are briefly asfollows: the lessee at his own expense had to repair, the building inwhich the business was being carried on during the first six months;the lessee had to pay Rs. 35/- per month as lease money during, thefirst six months; during the latter six months he had to pay Rs. 150/-per month; the lessee had to pay the electricity bills and hand overthe receipts to the lessor; the lessor was not to be held responsiblefor any debts incurred in the conduct of the business; the mcwableproperties and effects described in the schedule had to be carefullyused by the lessee during the lease and handed over to the lessorat the expiry of the lease term: the lessee had to re-imburse thelessor for any damages caused to such movable property; the lesseehad to pay the fees in respect of the Licence to the Urban Counciland finally on the expiration of the lease period the lessee had tohand over the business and the movable effects to the lessor andvacate therefrom. There is no reference at all in P14 to any lettingor sub-letting of premises. In my view this document' contains allthe elements necessary for a lease of a hotel business. And for thesole purpose of running the business Siyadoris Appuhamy had togive possession of the premises to the defendant. The possession ofthe premises was merely ancillary to the running of the business.
The oral and documentary evidence in this case is in my viewalmost one way. There is the uncontradicted evidence of SiyadorisAppuhamy that he commenced the hotel business in 1966. ran it for3 or 4 months and gave it over to Rauf in August 1966 on theAgreement P4 and that thereafter Rauf ran the business up to aboutthe middle of 1971 on annual agreements. Rauf has. corroboratedSiyadoris Appuhamy on all these. matters. All the hotel licencesduring this period was obtained by Siyadoris Appuhamy in his name.Siyadoris Appuhamy’s evidence that the defendant was employedunder Rauf from 1968 was also supported by Rauf. The witnessJuwa also supported Siyadoris Appuhamy.. He stated that the defendantwas the tea maker in the Hotel under Rauf. The defendant did notgive evidence in the case and deny any of these matters. He onlycalled as a witness Caliph, an employee of his. Even he admittedthat Rauf at one time ran a business in these premises. Caliph inhis evidence stated that it was he who introduced the defendant toSiyadoris Appuhamy in 1967 and obtained the lease of the businessfor the defendant. This was not put to. Siyadoris Appuhamy whenhe was cross-examined. It was suggested by the defence to Siyadoris
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Appuhamy and Rauf that the five informal lease agreements in Raufsname were drawn up and signed on one day for the purpose of thiscase., This was denied by both Siyadoris Appuhamy and Rauf. Thelearned District Judge has carefully examined the relevant documentsaVid'rejected'the allegation and he has given convincing reasons forr&oing so.
The trial judge has closely considered Caliph’s evidence and the. documents produced by him. He has come to the conclusion thatCaliph’s, evidence does not help the defendant. As regards thedocuments the learned Judge has held that.none of them supportthe defendant’s case that he ran the hotel business prior to 1972 andor that he was really a sub-tenant of the premises under SiyadorisAppuhamy. So the position is that there is not a single documentto, support the defendant’s case.
The Court of Appeal in its Judgment had not given any reasonsfor setting aside the findings of facts of the learned trial Judge. TheCourt of Appeal has further misdirected itself on a number of points.It is stated in the judgment that Siyadoris Appuhamy admitted thatthe defendant was carrying on the business with Rauf and that in.1972 he gave .the lease to the defendant. There was no such admissionby Siyadoris Appuhamy. The .uncontradicted evidence of SiyadorisAppuhamy which was supported by both Juwa and Rauf, was thatthe defendant was employed in the Hotel under Rauf. The Courtof Appeal further states tliat it is clear from the evidence of SiyadorisAppuhamy that he did not run this business though he stated thathe had done so for about 3 or 4 months. This finding is in the teethof Siyadoris Appuhamy’s uncontradicted evidence: No reasons havebeen given for rejecting that evidence. Again it is stated that accordingto Siyadoris Appuhamy’s evidence the defendant had been in occupationof the premises from the beginning of 1968. What Siyadoris Appuhamystated was that the defendant was employed by Rauf in the Hotelfrom 1968. The Court of Appeal has placed much importance incoming to this finding on a statement made by Siyadoris Appuhamyin the affidavit D1 filed by him in the proceedings before the RentBoard. In paragraph 4 of the affidavit Siyadoris Appuhamy has statedthat prior to the execution of P14 he had let the business of thetea kiosk to the defendant and. that he has attached marked RIOthe Agreement dated 01.11.1969 by which he let the business to thedefendant. The so called Agreement RIO does not form part of theproceedings of the Rent Board, which has been produced in this
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case, nor has it been produced in the instant case. Subsequentlywhen Siyadoris Appuhamy gave evidence before the Rent Board hestated that in 1966 he gave the business to Rauf and that after Raufgave up the business in 1972 he gave the business to defendant and .further that prior to that the defendant was an employee of theHotel. That evidence is consistent with the evidence he gave at thetrial in this case. The Court of Appeal states that the so calleddocument RIO referred to in the affidavit D1 shows that P9, theAgreement with Rauf-dated 05.10.1969 and the Hotel Licence P10dated 17.10.1970 were sham documents, as the defendant had beenin occupation from 1968. But this is not so. The evidence which hasbeen accepted by the learned Trial Judge is that the defendant wasan employee in the Hotel since 1968. The Court of Appeal hasfinally come to the conclusion that “on an examination of the termsand conditions in all these management agreements and the lease,they appear to be documents to cover up an actual sub-letting ofthe premises.” There is no evidence to support this finding. As Istated earlier the defendant did not give evidence. The Court ofAppeal has not even referred to the fact that the defendant did notgive evidence and subject himself to cross-examination. As regardsthe Rent Board proceedings and the order of the Board of Reviewthe Court of Appeal went on the footing, that a Certificate of Tenancyhad been issued. The judgment states that in terms of Section 35of the Rent Act, the Certificate is prima facie evidence of the facts,stated therein. As I have stated earlier no Certificate of Tenancyhas been produced nor is there anything to show that it had beenissued. The Court of Appeal further goes on to state that as SiyadorisAppuhamy took up before the Rent Board the identical position thathe had taken up in this case, i.e. that he let the business and notthe premises, the finding of the Board of Review D4 is final andconclusive in regard to the matters in dispute. As there is noCertificate of Tenancy I do not think that the order D4 can havethat effect. Mr. H.L. de Silva for the defendant conceded that inthe absence of a Certificate of Tenancy he is unable to claim .forthe defendant the benefit of section 35 of the Rent Act.
For these reasons I set aside the Judgment of the Court of Appealand restore the Judgment of the learned District Judge. The appealis accordingly allowed with costs. The substituted plaintiff is alsoentitled to his costs in the Court of Appeal.
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WEERARATNE, J. -• I agree..SHARVANANDA,’J. – I agree.WANASUNDERA, J. – I agree.
SOZA, J. – I agree.
Appeal allowed.