133-NLR-NLR-V-49-GUNASENA-Appellant-and-SANGARALINGAM-PILLAI-CO.-Respondent.pdf
WINDHAM J.—Qunasena v. Sangaralingam Pillai ds Co.
473
1948Present : Wijeyewardene A.C.J. and Windham J.
GUNASENA, Appellant, and SANGARALINGAM PILLAI & CO.,
Respondent.
S. C. 232—D. C. Colombo, 16.243M.
Rent Restriction Ordinance—Action for ejectment by landlord—Premises reasonablyrequired for his occupation—Proper meaning of “ reasonably ”—Factors to beconsidered by Court—Ordinance No. 60 of 1942, section 8 (c).
In considering whether premises are reasonably required for the occupationof a landlord in terms of section 8 (c) of the Rent Restriction Ordinance, -aCourt must take into account not only the position of the landlord but alsothat of the tenant together with any other factor that may be directly relevantto the acquisition of the premises by the landlord.
Fernando, v David (1948) 49 N. L. R. 210 and Atukorale v. Navaratnam(1948) 49 N. L. R. 461 not followed.
_A.PPEAL from a judgment of the District Judge, Colombo.
N. E. Weerasooria, K.C., with S. J. Kadirgamer, for the plaintiff,appellant.
H. V. Perera, K.C., with Vernon Wijetunge, for the defendant,respondent.
Cur. adv. wit.
August 23, 1948. Windham J.—
The plaintiff-appellant carries on a large and expanding business asprinter, stationer and bookseller in certain premises in Norris Road,Colombo. Until 1933 he had been a tenant of these premises, but inthat year he purchased them. He also purchased from the same vendorthe adjoining premises, in which the defendant-respondent companywere carrying on, and still carry on, a considerable business as suppliersof tyres, spare parts and accessories for motor cars and bicycles. Therespondents were taken over as tenants by the appellant, and when theirlease expired in 1943 they remained on as monthly tenants, at a monthlyrental of Rs. 450.
In 1945 the appellant, finding that the premises occupied by him wereinadequate to accommodate his expanding business, and desiring there-fore to take over the respondents’ adjoining premises, duly gave thelatter notice to quit, and, thereupon sued them for eviction on the groundsthat their premises were reasonably required for the purpose of theappellant’s trade, business and employment.
The action was tried before the additional District Judge, who dismissedit. The learned Judge found that the appellant’s desire to expand hisbusiness by taking in the repondents’ adjoining premises was an under-standable and even a laudable one, but he went on to consider the questionof alternative accommodation for the respondents, and he found, justi-fiably in my view upon the evidence, that there were no premises into36 – N.L.R. Vol – xlix
474
WINDHAM J.—Gunasena v. Sangarcdingain PMai ds Co.
which the respondents could move their own business if they were■evicted. He accordingly came to the following conclusion :—“ In theresult the defendant has nowhere else to go, and in the circumstancesJ find it impossible to hold that the plaintiff can lawfully contend that"the premises are reasonably required for his own use when the soleobject of his wanting the defendant to vacate is in order that be mayhimself take, as his counsel put it, fortune at the flood and increasehis own prosperity He accordingly dismissed the action.
The sole point at issue in this appeal is whether the learned additionalDistrict Judge was right in law in considering the question of alternativeaccommodation for the respondents to be a relevant factor in determiningwhether the respondents’ premises were “ reasonably required ’’ for thepurposes of the landlord’s (appellant’s) business. Learned counsel forthe respondent admits that if alternative accommodation was not arelevant factor, his client must fail. This question is one which has beenjudicially considered in a number of decisions in Ceylon. Section 8 (c)of the Rent Restriction Ordinance, No. 60 of 1942, sets out the require-ments for entertaining an eviction action on such grounds as follows,namely, that “ the premises are, in the opinion of the Court, reasonablyrequired for occupation as a residence for the landlord or any member ofthe family of the landlord or for the purposes of his trade, business,profession, vocation or employment ”.
Now it has been held in Abeyewardene v. NicoUe1, and later in Ra-.nen v.Perera2, and Mohamed v. SaZahudeen3, that in deciding whether undersection 8 (c) the requirement of the premises for the landlord’s use is a“ reasonable ” one, the surrounding relevant facts must be considered,and that the lack of alternative accommodation for the tenant is one ofsuch relevant facts. The same interpretation of section 8 (c) was laiddown, though obiter only, in Raheem v. Jayawardene *, and Wijemanne dk Co.Ltd. v. Fernando5, (a decision of two judges). In two very recent singlebench decisions, however, the opposite view has been upheld, namely,that in deciding whether the premises are “ reasonably required ” undersection 8 (c) the requirement shall be considered from the landlord’spoint of view exclusively, and that if his requirement, judged cn itsown merits, is “ reasonable ”, all outside factors, including the tenant’sdifficulties in .finding other accommodation, are irrelevant and oughtnot to be taken into account. The first of these two decisions is Fernandot>. David6, and the second, where the question was dealt with by the sameJudge at greater length and after consideration of all the relevant author-ties is Atukorale v. Navaralnam (1948) 49 N. L. R. 461.
In declining to follow the earlier decisions of the Supreme Court on thepoint, in which the English cases of Nevile v. Hardy'1, and Shrimpton v.Rabbits8, were cited with approval, the learned Judge in Atukorale v.Navaralnam rightly pointed out that those English cases were decidedrespectively on section 5 (1) (d) of the increase of Rent and MortgageInterest (Restrictions) Act, 1920, and the same section as enaoted withamendments in the Rent and Mortgage Interest Restrictions Act, 1923,
1(1944) 45 N. L. R. 350.8(1944) 46 N. L. R. 133.•(1945) 46 N. L. R. 166.1(1944) 45 N. L.R.313.
s(1946)47 N. £. R. 62.1(1948) 49 N. L. R. 210.
■> (1920) 124 L. T. 327.
8 (1924) 40 Times L. R. 541.
WINDHAM J.—Gttnaaena v. Sangaralingam PRlai <fc Co.
475
and that those sections, after making provision similar to section 8 (c)of the Ceylon Ordinance, make further specific provision that the Court(a) shall be satisfied that adequate alternative accommodation is available,and (6) shall consider it reasonable to make the order for eviction. Thatis true. And it is also true, as the learned Judge pointed out, that theCourts in those two English cases made it clear that, if those additionalprovisions had not been present in the English Acts, they would haveinterpreted the words “ reasonably required ” (the words common to theEnglish and the Ceylon legislation) to mean “ reasonably " from thepoint of view of the landlord exclusively. But since those additionalprovisions were included in the English Acts, I do not think these opinionsof the learned English Judges can be held to be other than obiter; theymight well have considered the meaning of the words “ reasonablyrequired ” with- more deliberation had not the additional words relievedthem of the necessity of doing so.
The learned Judge in Atukorale v. Navaratnam then proceeded toconsider certain decisions of the Supreme Court of South Africa, namely,Gonsalves v. Thompson1 ; Newman v. Biggs2; Johannesburg Board ofExecutors and Trust Co. Ltd. v. Gordon3; and Paterson v. Koonin*. Thosecases were decided when the relevant provision in South African RentsAct, 1942 (or the corresponding provision in the earlier Act of 1920)was for all material purposes the same as section 8 (c) in the Ceylon Ordi-nance and did not contain the further provisions present in the EnglishActs. In each of those cases the wqrds “ reasonably required ” wereinterpreted to mean required genuinely and in good faith by the land-lord, without reference to the position of the tenant. They are there-fore persuasive authority for that interpretation being placed upon thesame words in our Ceylon Ordinance. They are, however, no morethan persuasive ; and in view of the conflicting decisions on the pointin the Courts of Ceylon, I think the question is ripe for examinationunfettered by authority.
I turn, then, to consider the meaning of the words “ reasonablyrequired ” in section 8 (c) of our Ordinance. The first point to bear inmind is that (unlike the corresponding provision in the English Acts)the section does not say “ reasonably required by the landlord ”, but“ reasonably required for ” the occupation or business purposes of thelandlord. The point is a small one, but it is perhaps a slight indicationthat the section does not lay emphasis on the point of view of the landlord.But the more important question is—what is the proper meaning to attachto the word “ reasonably ” ? Can the reasonableness of the requirementof premises for the landlord be decided upon solely in the light of thelandlord’s own desire to occupy them, however well grounded, genuineand even urgent, without reference to how the gratifying of that require-ment might directly affect, injure or inconvenience other people 1 I do notthink so. It is the negation of reasonableness to take a onesided view,to consider one factor only out of more than one ; nor can any person besaid to have reached a reasonable decision who, in reaching it, ignoresany effect which it may have on his neighbours.
1 (1922) C. P. C. 477.a (1947) (1) S.A.L. R. 92.
'(1945) E. D. L. 51.*(1947) (2) S. A. L. R. 337.
476
WINDHAM J.—Ounasena v. Scmgaralingam PUlai <k Co.
Furthermore, as I have said, there is nothing in the section to suggestthat this one factor alone should be considered. I do not even think thatto consider the requirement of the premises from the landlord’s pointof view exclusively would be any more reasonable than to consider itfrom the tenant’s point of view exclusively. If, to turn for a moment tothe facts in the present case, the landlord were entitled to say—“ I havegenuine need of the premises, and therefore my requirement is reasonable ’ ’,would not the tenant be equally entitled to say—“ I have greater needof the premises, for if he ousts me he will then be occupying twopremises whereas I shall have none, and therefore his requirement isunreasonable ” ? The answer is that neither contention would be sound,and that the Court, in deciding upon the reasonableness of the requirement,ought to take both factors into account, together with any other factorswhich may be directly relevant to the acquisition of the premises by thelandlord. To take a hypothetical case : a landlord’s bona fide desire touse for himself premises occupied occasionally by a tenant who normallyresided elsewhere, might well be considered reasonable ; whereas if thosesame premises were permanently occupied by a bedridden invalid withnowhere else to go, his desire might properly be considered unreasonable.Can it seriously be contended that no distinction ought to be drawnbetween the one case and the other, as touching the reasonableness ofhis requirement ? I do not think it can. The genuineness of the land-lord’s desire is one thing ; the reasonableness of his requirement is another.
I respectfully agree with my learned brother in Atukorale v. Navaratnamin that I do not consider that the words “ in the opinion of the Court ”appearing in section 8 (c) affect to any extent the interpretation to beplaced on the word “ reasonably ” ; they merely emphasize, what it wasunnecessary to emphasize, that the landlord’s ipse dixit that his require-ment of the premises is reasonable is not enough, and that it is the Courtwhich has to decide whether the requirement is reasonable ; but thesewords' still leave open the question whether “ reasonable ” meansreasonable upon a consideration of the landlord’s point of viewexclusively, or upon consideration also of the tenant’s position and ofany other relevant factors. The interpretation which I have placedupon the word “ reasonably ” has thus been arrived at independentlyof the presence of the immediately preceding words “ in the opinion ofthe court ”.
It has been suggested that to interpret the word “ reasonably ” so as toallow consideration of such factors as alternative accommodation forthe tenant is in effect to read into section 8 (c) the additional provisionswhich are absent from it but are present in the English Acts. I do notthink so. The question is what is implicit in the word itself. And Iconsider rather that it is the restriction of “ reasonably ” to the landlord’spoint of view only which strays from the wording of the section, for toimpose such a limitation is in effect to substitute the words “ genuinely ”or “ in good faith ” for the word “ reasonably ”. And, so far as concernsthe question of alternative accommodation, I would guard againstsaying that the Court must satisfy itself (as it must under the EnglishActs) that there is alternative accommodation for the tenant beforeordering eviction under section 8 (c). That is not the position. A case
In re Swire
477
might well occur where, after duly considering the fact that there wasno alternative accommodation, the Court might still consider that thelandlord’s requirement was reasonable. This point was made clear bySoertsz J. in Abeywardene v. NicoUe (supra). Alternative accommodationis a relevant factor, no more and no less, in determining whether therequirement of the premises for the landlord’s purposes is reasonable.
Applying these conclusions to the facts and findings in the presentcase, I hold that the learned additional District Judge’s finding that thepremises in question were not reasonably required by the appellant, wasbased upon considerations legally relevant, and I see no reason to interferewith it. The appeal is accordingly dismissed with costs.
Wijeyewakdene A.C.J.—I agree.
Appeal dismissed.