Wickreiruunnghe v. Abdul Baheem
1954Present : de Silva J. and Sansoni J.
H. L. WICKREMASINGHE, Appellant, and S. A. M. ABDULEAHEEM, Respondent
S. C. 241—D. C. Colombo, 29,150M
Kent Restriction Act, No. 20 of 1048—Death of tenant—Continuance of tenancy—Section 18 (?)—Exclusive jurisdiction of Board of Review.
■Vhero, on tho dentil of a tenant, a person gives notice to tlio landlord, interms of section 18 (2) of the Rent Restriction. Act, stating that he proposes,in his status as a member of the household of the deceased tenant, to continuein occupation of tho lensed premises as the tenant thereof, tho landlord must,if he objects to the status of such person to give the notice, make on applicationto the Rent Control Board under section 18 (3), and is not entitled to rnise suchobjection in a court of law in an action to eject the person who claims to be thenew tenant.
(1914) 18 N.L.R. 26.
(1929) 30 N. L. R. 331.
DE 8II.VA J—Wiekremasinghe v. Abdul Raheem
^PPEAL from a judgment of the District Court, Colombo.
E. R. S. R. Coomaraswamy, with Daya Perera, for the plaintiff appellant.No appearance for the defendant respondent.
M. Fernando, Crown Counsel, as amicus curiae, on notice.
Cur. adv. vuU.
December 20, 1954. de Selva J.—This appeal involves the interpretation of section 18 of the RentRestriction Act of 1948 (herein referred to as the Act). This section reads :—
Notwithstanding anything in any other law, but subject to anyprovision to the contrary in any written contract or agreement, thesucceeding provisions of this section shall have effect in the event ofthe death of the tenant of any residential premises to which this Actapplies.
Any person who—
is the surviving spouse or the child, parent brother or sister of
the deceased tenant of the premises, or was a dependant ofthe deceased tenant of the premises immediately prior to hisdeath ; and
was a member of the household of the deceased tenant (whether
in those premises or in any other premises) during the wholeof the period of three months preceding his death,
shall be entitled to give written notice to the landlord, before thetenth day of the month succeeding that in which the death occurred,to the effect that he proposes to continue in occupation of the premiseaas tenant thereof; and upon such written notice being given, suchperson shall, subject to any order of the Board as hereinafter provided,be deemed for the purposes of this Act to be the tenant of the premiseswith effect from the first day of such succeeding month, and theprovisions of this Act shall apply accordingly.
The landlord of the premises in relation to which any writtennotice is given under sub-section (2) by any person may make applica-tion to the Board for an order declaring that such person shall not bodeemed as provided in that sub-section to be the tenant of the premises ;and the Board may make order accordingly if satisfied that such personis not entitled to give the notice for which provision is made by thatsub-section.
DE SILVA J.—Wxckrcmasinghc v. Abdul Raheem
The plaintiff is the owner of premises bearing assessment No. 371situated at Dam Street, Colombo, and she let the same on a monthlytenancy at a rental of Rs. 108" 50 to one S. A. Seyad Hamid, a l'roctorpractising in Colombo. Mr. Seyad Hamid who was an Indian died inIndia on December 24, 1951. Thereafter on 9.1.’52 his brother the•defendant gave notice to the plaintiff, in terms of section 18 (2) of theAct, that he proposed to continue in occupation of the premises as tenantthereof. The plaintiff replied to this letter through her Proctor on12.1.’52 expressing her unwillingness to accept the notice afld alsodenying the right of the defendant to avail himself of the provisions ofSection 18 (2). When subsequently the defendant forwarded the rentto the plaintiff she refused to accept it and instituted this action on10. G. ’52 to eject him and to recover damages at the rate of Rs. 108-50on the ground that he was in wrongful and unlawful occupation of thepremises. The defendant claimed that he was entitled to be regardedas the plaintiff’s tenant as he had complied with the provisions of Section18 (2) by giving the required notice. He also contended that in view ofthe failure on the part of the plaintiff to make an application to the RentControl Board under section 18 (3) on receiving the notice he must bedeemed to be the tenant of the premises. The learned District Judgeuphold this contention and dismissed the plaintiff’s action. This appealis against that decision.
Mr. Coomaraswamy for the appellant argued that the learned DistrictJudge had erred in holding that the Court had no jurisdiction to inquireinto the question whether or not the presumption of tenancy contemplatedby section 18 (2) arose on the required notice being given. As thedefendant was not represented at the hearing of this appeal and onMr. Coomaraswamy bringing to the notice of the Court that the pointof law involved was one of some importance, the Attorney General wasrequested to allow Crown Counsel to appear as amicus curiae. Accord-ingly, Mr. M. Fernando, C.C., appeared at the hearing of the appeal andwe have had the advantage of his assistance. The plaintiff's position isthat the defendant was not a member of the household of her tenant.Seyad Hamid. The learned District Judge held in favour of the plaintiffon that point. Mr. Coomaraswamy maintained that on that findingjudgment should have been entered for the plaintiff.
Bofore notice can be given under sub-section (2) the two conditionsspecified in sub-section (l) must be satisfied, namely, that the tenantlias died and the premises in question are residential premises withinthe meaning of the Act. They are conditions precedent, and unless theyexist the notice would be ineffective. Air. Fernando, C.C'., submittedthat although it is competent for the Court to inquire whether these twoconditions have been successfully established, yet the requirementsunder sub-section 2 (a) and (b) are within the exclusive purviewof tho Board. This submission, in my opinion, is correct. Thewords.■
“ Such person shall, subject to any order of the Board as hereinafter provided,be deemed … .to be the tenant ” appearing in sub-section (2)
DJ-J SILVA J.—WickreiiHuinyhe v. Abdul Raheem
make it abundantly clear that the Board has the exclusive right to deter-mine whether or not the person giving the notice is entitled to give thatnotice. This right cannot be exercised or shared by any other tribunal.
Sub-section (2) is one of many instances to be found in the Act where astatutory fiction has been created—in this case an artificial constructionbeing given to the word “ tenant The sub-section also providesthe only method by which the “tenant ” so created can be divested ofthis artificial character, viz. :—by an order of the Board obtained on anapplication made to it by the landlord of the premises, as provided insub-section (3). In this case no such application was made by theplaintiff and the defendant must therefore be considered the tenant<if the premises, provided that conditions contained in sub-section (1)have been satisfied.
Sub-section (3) would appear to indicate that the function of theBoard is restricted to the decision on matters contemplated by sub-section (2). It makes no reference to sub-section (1) and therefore thequestions which arise under that sub-section would be matters withinthe jurisdiction of the Courts. Accordingly, as the learned DistrictJudge held, the Court is not entitled to adjudicate on the question whether<>r not the defendant was a member of the household of the deceasedtenant during the required period.
That the plaintiff’s tenant Seyad Hamid died on December 24, 1951,is not denied. Mr. Coomaraswamy however contended that the premisesin question are not residential premises. This is a matter which theCourt is entitled to adjudicate upon. The learned District Judge hasheld in favour of the defendant on this point. It is true that SeyadHamid had sub let two rooms of his house to others to be used as offices.But he himself lived in the house and had his meals prepared there.H e also had his office there. The fact that he sub-let two of the sparerooms for offices is not sufficient to hold that these are business premises.The evidence discloses that the premises were occupied mainly for thepurpose of residence. Therefore within the meaning of the Act they areresidential promises.
Mr. Coomaraswamy also contended that the notice given by thedefendant under section 18 (2) was not valid as it did not set out that thedefendant had been a member of the deceased tenant’s household duringthe required period. This sub-section does not provide that tho require-ments under sub-section 2 (a) ancl (0) must be inserted in the noticealthough it is desirable that those particulars should be given. Thenotice given by the defendant states that he is the brother of the deceasedtenant and that he proposes to continue in occupation in terms of sectionIS (2) (/>)■ In my view that is sufficient compliance with the provisions• •f sub-section (2).-
Accordingly tho appeal fails. I dismiss the appeal without costs.
Saxsosi J.—I agree.
H. L. WICKREMASINGHE, Appellant, and S. A. M. ABDUL RAHEEM , Respondent