GUNASEKARA AND ANOTHER v. JAYAKUMAR

025-SLLR-SLLR-2002-V-1-GUNASEKARA-AND-ANOTHER-v.-JAYAKUMAR.pdf


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Gunasekara and Another v. Jayakumar
211
GUNASEKARA AND ANOTHER
v.
JAYAKUMAR
SUPREME COURTFERNANDO, J„
GUNASEKERA, J. ANDISMAIL, J.
SC APPEAL NO. 98/98CA NO. 581/84 (F)
DC COLOMBO NO. 2112/SPL26 FEBRUARY, 5 APRIL AND 28 MAY, 2001
Lease – Lease of premises – Termination of lease bond – Grant of a secondlease of the same premises by the owner to another – Whether the lessee underthe first lease may claim rights of a statutory tenant after the grant of the secondlease – Action by first lessee against the owner – Failure to pray for declarationof tenancy and ejectment – Grant of writ of ejectment against owner – Jurisdictionof the Court – Validity of plaintiff's claim.
The defendants-appellants (the defendants) owned the premises in suit (thepremises) which the original plaintiff-respondent (the plaintiff) had used for therunning of a toddy tavern on a government licence from 1971 until the endof 1980. For this purpose the plaintiff had also obtained annual leases from thedefendants except for the last year. But, the plaintiff had paid the usual rentalof Rs. 7,500 for that year as well.
Thereafter, two other persons N and T were granted the licence to conduct atoddy tavern at the said premises for the period 01. 01. 1981 to 31. 12. 1981;and they obtained from the defendants a formal lease dated 10. 12. 1980 andpossession of the premises from the plaintiff on or about 31. 12. 1980. In 1982also N and T continued to do business there and remained in occupation havingpaid rental to the defendants though without a formal lease bond.
On 29. 12. 1981 the plaintiff instituted action against the defendants claiming thathe was the tenant in occupation of the premises and that the defendants at theinstigation of the second highest bidder for the tavern for 1982 were makingarrangements to disturb the plaintiff's possession. The plaintiff prayed for adeclaration that he is entitled to the undisturbed and uninterrupted possessionof the premises. However, the plaintiff did not pray for a declaration that he wasthe tenant of the premises nor for the ejectment of the defendant or anyone
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else, and for a delivery of possession. Issue No. 11 raised on behalf of theplaintiff shows that he was claiming to have become a statutory tenant of thedefendants after the expiry of his formal lease.
The trial Judge granted a declaration that the plaintiff was the tenant of thepremises and made order for the ejectment of the defendants and all personsholding under them and for the delivery or possession of the premises to theplaintiff. The writ for delivery of possession to the plaintiff was executed.
Held:
In the absence of a prayer for such relief the District Judge had actedin excess of jurisdiction in granting a declaration that the plaintiff was thetenant of the premises and in ordering the ejectment of the defendant anddelivery of possession to the plaintiff.
The lease in favour of the plaintiff had come to an end on 31. 12. 1980when he willingly surrendered possession of the premises to the newlessees from 01. 01. 1981 enabling the owner to deal with the propertyas he wished. From 01. 01. 1981 the plaintiff's claim to have been thetenant came to an end. The Court of Appeal erred in taking the view thata monthly tenant or an overholding lessee can only be ejected by adecree of court and not by private arrangement.
The lease in favour of N and T had not expired at the time when theaction was instituted on 29. 12. 1981; and they were in lawful occupationof the premises, hence the plaintiff had no right to possession of thepremises at the date of the institution of the action.
Cases referred to :
Sirinivasa Thero v. Sudassi Thero – 63 NLR 311.
Ibrahim Sanbo v. Mansoor – 54 NLR 217.
Gunaratne v. Thelenis – 47 NLR 433.
Premaratne v. Suppiah – 64 NLR 276.
Fernando v. Ponrajah – 68 NLR 575.
APPEAL from the judgment of the Court of Appeal.
P. A. D. Samarasekera, PC with R. Y. D. Jayasekera for appellants.
A. K. Premadasa, PC with S. A. Parathalingam and C. E. de Silva for respondents.
Cur. adv. vult.
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Gunasekara and Another v. Jayakumar (Gunasekera, J.)
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April 05, 2002GUNASEKERA, J.
The defendants-appellants were the owners of premises bearing 1assessment Nos. 128, 130, 134, 136 and 136/ 1-2, Korteboam Street,Kotahena (which are hereinafter referred to as the premises). The saidpremises have been used for over 25 years for the purpose of runninga toddy tavern. It had been the practice of the successful tendererwho secures a license from the Government Agent, Colombo, to obtaina lease from the appellants to carry on business in the said premises.The plaintiff-respondent had been the successful tenderer for severalyears commencing from 1971 and for the duration of such years hehad obtained annual leases from the defendants-appellants and had iocarried on the business of running the toddy tavern in the saidpremises. For the year 1979 too the plaintiff-respondent had obtainedthe lease dated 28. 12. 1978 (marked P6) for the period 01. 01. 1979to 31. 12. 1979 having paid a rental of Rs. 7,500 for the year.
He had been the successful tenderer for the year 1980 as welland had continued to run the toddy tavern in the said premisesfrom 01. 01. 1980 to 31. 12. 1980 having paid the same rental ofRs. 7,500 to the defendants-appellants, but without obtaining aformal lease for that year.
The successful tenderers for the year 1981 had been two persons. 20Nadarajah and Thangavelu, who had obtained a license (marked B)from the Government Agent to run the tavern for the period01. 01. 1981 to 31. 12. 1981. Having obtained the license (markedB) from the Government Agent they had entered into a lease bondNo. 6970 dated 10. 12. 1980 (marked VI) with the defendants-appellants and had obtained possession of the said premises fromthe plaintiff-respondent on or about 31. 12. 1980. In the following year
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too the said Nadarajah and Thangavelu had carried on the businessin the said premises having paid the rental to the defendants-appellants but without a formal lease. The successful tenderer to run 30the tavern for the following year, namely, 1983 had been one DuncanFernando who had carried on the business in the said premises,having obtained a lease from the defendant-appellants.
The plaintiff-respondent instituted this action on 29. 12. 1981 onthe basis that he was the tenant in occupation of the said premisesand that the defendants-appellants at the instigation of the secondhighest bidder for the tender to run the tavern in 1982 were makingarrangements to disturb the plaintiff-respondent's possession. By wayof relief, inter alia, the plaintiff-respondent prayed for a declarationthat he is entitled to the undistrubed and uninterrupted possession 40of the said premises. It is to be noted that in the plaint the plaintiff-respondent did not ask for a declaration that he was the tenant ofthe premises nor did he ask for the ejectment of the defendants-appellants or anyone else and for the delivery of possession.
In the answer the defendants-appellants denied that the plaintiff-respondent was the tenant of the premises in 1981 and that he wasin occupation of the premises that year. It was further pleaded thatthe premises had been given on an annual lease to Nadarajah andThangavelu upon lease bond No. 6970 dated 10. 12. 1980 and thatpossession of the premises had been taken over by them and that sothey had carried on the business of running the toddy tavern from01. 01. 1981 having obtained a license to do so for the period01. 01. 1981 to 31. 12. 1981 and prayed that the plaintiff's actionbe dismissed.
At the trial the following issues were raised on behalf of theplaintiff –
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was the plaintiff, the tenant of the 1st and 2nd defendants inthe premises referred to in paragraph 2 and in the scheduleto the plaint?
Is the premises in question subject to the provisions of the 60Rent Act?
Were the defendants jointly disturbing and interfering with thepossession of the plaintiff?
If issues 1-3 are answered in the affirmative is the plaintiffentitled to the relief prayed for?
The following issues were raised on behalf of the defendants:
Has the premises in question been leased to Nadarajah andThangavelu on 01. 01. 1981?
Were Nadarajah and Thangavelu the tenants of the said
premises from January, 1981??o
(a) Did Nadarajah and Thangavelu obtain the license to run
the tavern in 1982?
(b) Are they in occupation of the said premises even atpresent?
Did the lease in favour of the plaintiff come to an end on31. 12. 1980?
(a) Has the plaintiff not paid any rent for the year 1981?
(b) Has the plaintiff carried on any business in the saidpremises in 1981?
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If issues 5-9 are answered in the affirmative can the plaintiff sohave and maintain this action?
A consequential issue No. 11 was raised on behalf of the plaintiff.
Did the plaintiff become the statutory tenant of the defendantsupon the expiry of the lease No. 3200?
If issue No. 11 is answered in the affirmative is the plaintiffentitled to the relief prayed for?
At the trial only the plaintiff and 1st defendant gave evidence.The Additional District Judge having accepted the evidence thatNadarajah and Thangavelu were lessees of the premises in 1981,who had possession and carried on the business of running the toddy 90tavern, has in his judgment stated that all this was done with theknowledge and consent of the plaintiff-respondent and further, althoughthe plaintiff-respondent was not in possession during that year andthat there was no break in his tenancy and proceeded to grant adeclaration that the plaintiff-respondent was the tenant of the saidpremises and made order ejecting the defendant-appellants and allpersons holding under them.
Aggrieved by the judgment of the learned Additional District Judgethe defendants-appellants preferred an appeal to the Court of Appeal.
The plaintiff-respondent died on 01. 10. 1993 during the pendancy 100of the appeal to the Court of Appeal and upon an application madeon 23. 03. 1994 Krishnan Jayakumar, the eldest son of the plaintiffwas substituted as the substituted plaintiff-respondent.
After hearing submissions of counsel and upon a consideration ofthe written submissions their Lordships of the Court of Appeal by
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judgment dated 27. 03. 1998 dismissed the appeal and affirmedthe judgment of the learned Additional District Judge. Special leaveto appeal was granted on the questions set out in paragraphs16 (b) – (/) and 18 of the application for special leave filed by thedefendant-appellants which are as follows:11(
The Court of Appeal in paragraph 2 of the judgment has held"the defendants thereafter leased it (the premises in question)to two people, namely, S. A. Nadarajah and P. K. Thangaveluon Lease Bond No. 6970 of 10. 12. 1980 who did businesstherein. They were the lessees for the years 1981, 1982 andthereafter it was given out again on similar terms to oneD. Fernando, but the plaintiff remained the monthly tenant ofthe premises, as he was not ejected by a Decree of Court".
The above findings, it is respectfully submitted, are contradictoryand incorrect;120
The Court of Appeal has as pointed out above recognised thatwhen the plaint was filed in 1981 there were the lesseesNadarajah and Thangavelu carrying on business in thepremises under and by virtue of Lease Bond No. 6970 but atthe same time the Court has expressed the view that theplaintiff who was no longer in the premises had a continuationof his tenancy for the reason that he was not ejected by aDecree of Court;
The Court of Appeal it is submitted was in gross error when
it came to the conclusion that “it is an accepted principle 130of law that a monthly tenant or an overholding lessee canonly be ejected by a Decree of Court and not by privatearrangement".
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Both Courts have completely failed to appreciate that afterNadarajah and Thangavelu had obtained the license from theGovernment Agent and a notarial lease from the defendantsfor the entire year commencing from 01. 01. 1981, the plaintiffhimself had surrendered and handed over the premises to thesaid lessees and thus his rights of tenancy had lawfully come
to an end;14C
In any event, there could not have existed at the same timea lease in favour of Nadarajah and Thangavelu and a monthlytenancy in favour of the plaintiff in respect of the same premises;
It was not even suggested that the plaintiff had sublet thepremises to Nadarajah and Thangavelu or that they had paidany rent to the plaintiff in respect of the year 1981;
The plaint in this action was filed on 29. 12. 1981 during thesubsistence of lease No. 6970 (VI) and the rights of partieshad to be decided as at that date. The plaintiff had no tenancyand no occupation of the premises at that date although the 150plaint had been presented on the false premise that he was
in occupation and needed injunctive relief to prevent anyinterference with his occupation;
The writing dated 31. 12. 1980 (A6) produced by the plaintiff
himself clearly proves that the plaintiff had surrendered thepremises to the defendants' lessees and thereafter had only anexpectation that at the expiration of the lease he could get backthe premises on a new lease/tenancy, but it clearly proved thatduring the whole of the year 1981 the plaintiff was not a tenantand had no possession;160
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The plaintiff's assertion that he had tendered rents to thedefendants for the year 1981 was denied by the defendantsalthough the plaintiff marked a copy of a letter with which thepayment was said to have been forwarded, fail to produce anyproof of posting of such letter nor did he produce any evidencethat any such payment had been realised from his bank. BothCourts were clearly in error in taking the view that he had paidrents for the year 1981.
The defendants also plead that the question whether a personwho had surrendered a lease and ceased to occupy the premises 170would have a tenancy of the premises while other lessees under
a notarial lease from the owners are in occupation of thepremises, is an important question of law and a question ofgeneral and public importance.
The main question that arises for determination in this appeal iswhether the plaintiff-respondent when he handed over possession ofthe premises to Nadarajah and Thangavelu who had obtained thelease 6970 (VI) for the period 01. 01. 1981 to 31. 12. 1981 and whenthe aforesaid Nadarajah and Thangavelu admittedly carried onbusiness in the said premises during the whole of 1981, and even 1 soin 1982 can it be said that the plaintiff continued to be the tenantof the premises in 1981. The further questions that arises fordetermination are:
Could the plaintiff have any rights in the premises at the dateof the plaint, namely, 29. 12. 1981?
Could the trial Judge have given him the reliefs which werenot prayed for in the plaint?
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At the hearing of this appeal it was submitted by learned President'sCounsel appearing for the appellants that the plaintiff came to Courton the false premise that he was the tenant in actual occupation of 190the premises seeking to protect his occupation and did not pray fora declaration that he is the tenant nor did he ask for delivery ofpossession of the premises to him and also did not ask for an orderof ejectment against the defendants or anyone else, but however, thelearned District Judge in his judgment, granted him a declaration thathe is a tenant, an order for ejectment of the defendants and directedthe delivery of possession of the premises be given to the plaintiff.
It was his contention that the rights of parties were to be determinedon the date of the institution of an action. He submitted that the plaintwas filed on 29. 12. 1981 at a time Nadarajah and Thangavelu were200in occupation of the premises upon lease bond 6970 (VI) and thelearned District Judge had no jurisdiction to grant the reliefs that hadnot been prayed for in the plaint. He cited the case of SiriniwasaThero v. Sudassi Therom – that was a case where a Buddhist Priestsued three other Priests for a declaration that he was entitled to theoffice of Viharadhipathy, incumbent and trustee of a Vihara andPansala and to the management and control of their temporalities.
He did not ask for possession of any property. He obtained judgmentand decree as prayed for and upon his application to execute thedecree, writ of possession was issued in respect of a room in the 210Pansala. It was held that the decree entered in the action could notbe construed as one which decreed possession of any property.
The decree could not be said to fall within section 217 (c) of theCivil Procedure Code which relates to a decree commanding theperson against whom it operates to yield up possession of immovableproperty nor could it fall within section 323 which applies if the decreeor order is "for the recovery of possession of immovable property orany share thereof by the judgment creditor, or if it directs the judgmentdebator to yield or deliver up possession thereof to the judgmentcreditor".220
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The position of the judgment creditor was no better than that ofa plaintiff who obtains a declaration of title to immovable propertywithout also obtaining a declaration of his rights to immediatepossession of that property.
It was further held that "inasmuch as the Court acted withoutjurisdiction in issuing the writ, the person who has been dispossessedof property in consequence of the execution of the writ was entitledto be restored to possession. In such a case a Court of justice hasinherent power to repair the injury done to a party by its act". 230
In the instant case it was brought to our notice that in CA RevisionApplication No. 1100/85 the counsel for the plaintiff-respondent hadinformed the Court that writ for delivery of possession to the plaintiff-respondent had been executed. I am inclined to agree with thecontention of the learned President's Counsel that the learned DistrictJudge had acted in excess of jurisdiction in granting a declarationthat the plaintiff-respondent is the tenant of the premises and inordering the ejectment of the defendants and in directing that deliveryof possession be given to the plaintiff-respondent.
It was also submitted by learned President's Counsel for the 240defendants-appellants that the Court of Appeal having accepted thatNadarajah and Thangavelu were in possession of the premises in theyear 1981 upon lease bond No. 6970 and carried on business in thesaid premises being the new lessees was in error when it held thatthe plaintiff remained the monthly tenant of the premises as he wasnot ejected by a decree of Court. It was contended that the Courtof Appeal had held that the only way by which a tenancy could cometo an end was upon a decree of ejectment issued by a competentCourt. Dealing with the submissions made on behalf of the defendants-appellants the fact that Nadarajah and Thangavelu carried on business 250in the premises after obtaining the lease (VI) after the plaintiff hadwillingly surrendered his right to possession as evidenced by 'A6' whichwas produced by the plaintiff himself enabling the owner to deal with
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the premises as he wished is one of the ways in which a tenancycan come to an end, it was submitted that the Court of Appeal wasin error when it held that "It is an accepted principle of law that amonthly tenant or overholding lessee can only be ejected by a decreeof Court and not by private arrangement was a proposition that isnot tenable”.
It was submitted by learned counsel that all the text books on 260landlord and tenant referred to several ways in which a tenancy cancome to an end. Surrender of the premises by a tenant is clearlyone of the ways in which a tenancy can come to an end.
In the case of Ibrahim Saibo v. Mansoor at 224 it was held thatthe only two ways in which the statutory protection given to a tenantcomes to an end are:
by the handing back of the premises to the landlord; and
by the order of a competent Court that is to say a Court actingwith jurisdiction.
In support of the contention of learned President's Counsel that270a tenancy may come to an end by handing back possession of thepremises to the landlord, he cited Wille Landlord and Tenant in SouthAfrica – 4th edition, part 4, dealing with termination of leases at page246 "that a lease for a definite period of time terminates ipso jureupon the affluxion of such period" and at page 253 where it is statedthat "a lease may be terminated at any time by mutual agreementor consent of the parties".
He also cited Thambiah Landlord and Tenant in Ceylon, 1st edition- chapter 23, page 152, dealing with the termination of a lease whereit is stated that "where a lease is entered into for a specific term 280the lease terminates at the expiration of the term", and page 159 where
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it is stated that "a lease may be terminated by mutual agreement orconsent of the parties".
In the instant case admittedly the lease that the plaintiff had fromthe defendants came to an end on 31. 12. 1980 and possession washanded over to the new lessees Nadarajah and Thangavelu from01. 01. 1981 and the plaintiff's claim to have been the tenant cameto an end. Thus, I am in agreement with the contention of learnedcounsel for the appellants that the Court of Appeal erred in takingthe view that "it is an accepted principle of law that a monthly tenant 290or an overholding lessee can only be ejected by a decree of Courtand not by private arrangement".
I am unable to agree with the contention of learned President'sCounsel who appeared for the respondent that the plaintiff's tenancycontinued notwithstanding the fact that a fresh lease was granted infavour of Nadarajah and Thangavelu and possession of the premiseswas taken over by them from 01. 01. 1981. On the admitted evidencein this case both learned Additional District Judge and their Lordshipsof the Court of Appeal have come to a specific finding that Nadarajahand Thangavelu were in occupation in the premises in question upon 300a valid lease which had been produced as (VI).
The plaintiff's position in re-examination was that he placedNadarajah and Thangavelu in possession of the premises in 1981 andthat they gave him a letter and the said letter had already beenproduced marked "A6“ (vide page 320) of the brief. The learnedAdditional District Judge in his judgment at pages 282 and 283 aswell as their Lordships of the Court of Appeal in their judgment atpage 4 have placed reliance on that letter to hold that the said letterestablishes the fact that the plaintiff-respondent did not give up thetenancy. However, I find that the said letter relied upon by the learned 310Additional District Judge as well as their Lordships of the Court ofAppeal had not, in fact, been marked and produced in evidence.Therefore, both Courts have erred in having assumed that the letter
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was produced in evidence. In any event I am of the view that thesaid letter does not establish that the plaintiff-respondent had not givenup his tenancy for the reason that according to his own evidenceNadarajah and Thangavelu had been placed in possession of thepremises after they obtained the lease "VI" from the defendants-appellants and continued to run the toddy tavern in the said premisesfrom 01. 01. 1981.320
(3)
I am of the view that the facts of Gunaratne v Thelenis, Premaratnev. Suppiahm and Fernando v. Ponrajahts> relied upon by learnedPresident's Counsel for the plaintiff-respondent have no applicationto the facts of the instant case.
On the admitted evidence in this case, it is clear that the leasein favour of Nadarajah and Thangavelu had not expired at the timethe action was instituted on 29. 12. 1981 and that they were in lawfuloccupation of the premises in question. The plaintiff had no right topossession of the premises as at the date of the institution of theaction. Thus, I am of the view that this appeal must succeed. 330 I,
I, therefore, set aside the order of the Court of Appeal dated
03. 1998 and the judgment of the learned Additional District Judgedated 25. 04. 1984 and dismiss the plaintiff-respondent's action withcosts in this Court and the Courts below in a sum of Rs. 40,000payable to the defendants-appellants. I further direct that thedefendants-appellants be restored to possession of the premises inquestion.
FERNANDO, J. – I agree.
ISMAIL, J. – I agree.
Appeal allowed.