195-NLR-NLR-V-47-HAMEED-Appellant-and-ANAMALAY-Respondent.pdf
568
NAGAUCNGAM A.J.— Hat ted v. Anamalay.
1946Present : Nagalingam A.J.
HAMEED, Appellant, and ANAMALAY, Respondent.
187—C. R. Matale, 8,909.
Sent Restriction Ordinance—Right of lessee to eject tenant who is already inoccupation of the premises leased—.Meaning of “ landlord ”—OrdinanceNo. GO of 1942, 88. 8 (c), 17.
A person who takes a lease of premises knowing that they arealready in the occupation of a tenant holding under a prior contract oftenancy cannot avail himself of the provisions of proviso (c) of section 8 ofthe Rent Restriction Ordinance to eject the tenant on the ground thathe requires the premises for his own use and occupation. For thepurpose of proviso (c) a landlord must be defined as not only one who isentitled to receive the rent but also as one who has a jus in re in regardto the premises.
^ PPEAL from a judgment of the Commissioner of Requests, Matale.
S.R. Wijayatilake, for the plaintiff, appellant.
H. W. Thambiah, for the defendant, respondent.
Cur. adv. vult.
December 18, 1946. Nagalingam A.J.—
This appeal raises a difficult question of law under the Rent RestrictionOrdinance, No. 60 of 1942. The defendant had been for a number ofyears and was at the dates material to this action a monthly tenant ofcertain premises bearing No. 668 (Old) Trincomalee street, Matale,under the owner thereof, one Chelliah, at a monthly rental of Rs. 20.By indenture of lease PI of December 11, 1944, Chelliah leased thepremises for a term of five years commencing from January 1, 1945,to one Sainudeen Lebbe who by deed P2 of January 2, 1945, sub-leasedthe premises to the plaintiff for the entire term of his lease. The rentalreserved both under the lease PI and under the sub-lease P2 was thesame amount that the defendant was paying under the monthly tenancy,namely, a sum of Rs. 20, with the difference that six months’ rent hadbeen paid in advance in each case at the execution of thelease andsub-lease.The plaintiff by virtue of the sub-lease in his favour continued to recoverthe monthly rents from the defendant from January, 1945, till date ofaction. On May 30, 1945, he gave notice to the defendant to quit anddeliver possession of the premises to him on the ground that he " requiredthe premises for his personal occupation to commence and carry on atrade or business. ” The defendant failed to quit and the plaintiffinstituted this action.
NAGAX,EN"GAM A.J.—Hametd v. Anamalay.
589
The point of law that arises has been formulated in the followingissue framed at the trial: “ Can the lessee claim to have the tenant of thepremises leased ejected under the Rent Restriction Ordinance on theground that they are for lessee’s use and occupation ? The objectof the Rent Restriction Ordinance is not only to restrict the increase ofrent, as is expressly set out in the title, but also to prevent proceedingsin ejectment being taken against the tenant by terminating the tenancyby means of a simple notice. A reading of sections 3 to 7 of the Ordinancemakes it plain that the rental of premises in areas to which this Ordinanceapplies cannot be increased excepting within certain limits prescribed bythose sections. In other words, the right of a landlord to fix the rentof premises he lets in his absolute discretion is taken away from him.Section 8 of the Ordinance makes a further inroad into the rights of thelandlord by curtailing very considerably his right to terminate thetenancy of the tenant. He could only do so if he could establish theexistence of certain specified grounds set out in the section. The groundthat need be examined for the purpose of this appeal is the following,viz., that “the premises are in the opinion of the Court reasonably requiredfor occupation as a residence for the landlord or any member of the familyof the landlord or for the purposes of his trade, business, profession,vocation or employment
The plaintiff contends that whatever the object of the Legislaturemay have been in enacting this Ordinance, the rights of parties are to bedetermined according to the plain meaning of the language used by theLegislature. Resort is had to the definition given in section 16 of theterm “ landlord ”, which says that “ in relation to any premises, the termlandlord means the person for the time being entitled to receive the rentof such premises ”, and it is said that after the execution of the sub-lease in his favour the plaintiff became entitled to receive the rent ofthese premises from the defendant and in fact did so for a period of sixmonths prior to date of action and that therefore the plaintiff is thedefendant’s landlord in accordance with the definition and that theplaintiff is therefore one who is entitled to establish that the premisesare reasonably required for the purpose of his trade or business, apdhence to claim ejectment of the defendant from the premises On thisground. It would be obvious that if this contention is upheld the resultwould be to Tender the provisions of section 8 designed to safeguard theinterests of the tenant a dead letter, for while a landlord may not in hiaproper person be able to institute an action for ejectment of his tenanton the ground that the premises are required not for himself but for afriend or relative of his, he could achieve his object by executing a leasein favour of the friend or relative, who would be able to claim ejectmentby establishing that they are required for their own occupation.
Maxwell (9th edition, page 198) states the rule of construction thatwould be applicable to circumstances such as these as follows :—
“ Where the languago of a statute in its ordinary meaning andgrammatical construction leads to a manifest contradiction of theapparent purpose of the enactment or to some inconvenience or
560
NAGALINGAM A.J.—Hamted v. Anamalay.
absurdity, hardship or injustice presumably not intended, a constructionmay be put upon it which modifies the meaning of the words andeven the structure of the sentence.”
Lord Selbourne expresses a similar view in the case of CaledonianRail Co. v. North British Rail Co.1
“ The mere literal construction of a statute ought not to prevail ifit is opposed to the intentions of the Legislature as apparent bystatute and if the words are sufficiently flexible to admit of someother construction by which that intention can be better effectuated
Though the term “ landlord ” is no doubt given the definition set outabove in the Ordinance, it is important to bear in mind that thedefinition is qualified by the words “ unless the context otherwiserequires In regard to the provisions of sections 3 and 7 of the Ordi-nance dealing with the control of rents, I have little doubt that the term“ landlord ” must be given its meaning as in the definition and that itwould debar a person even in the position of the plaintiff from charginga higher rent than that permitted by these sections. The same inter-pretation may be placed on the term even in regard to the severalprovisions of section 8 other than proviso (c). But in regard to theconstruction of proviso (c) the definition of the term “ landlord ” asgiven in the Ordinance cannot be invoked, for otherwise the undoubtedresult, as shown above, would be to defeat the very object theOrdinance had in view in enacting this section.
The question, therefore, arises : What then is the proper meaning tobe attached to the term “ landlord ” in proviso (c) ? It has been saidthat a purchaser of the premises from the landlord has been permittedto avail himself of the benefits conferred by this section and referenceis made to the cases of Raman v. Peru,'a 2 and Edmund Appuhamy v.Samarasekera3 in both of which a purchaser from the previousowner instituted the action for the ejectment of the tenant on theground that the premises were reasonably required for his occupation.In the first case the purchaser failed to secure relief but in the secondhe succeeded, but in neither of the cases was any question raised asregards the capacity of the purchaser to maintain the action. Thesecases, therefore, cannot strictly be regarded as authority for theproposition that a purchaser is entitled to the benefit of theprovisions of section 8, proviso (c), but it is not without interest to notethat in South Africa under the Rents Acts which are intended to securethe same objects as our Ordinance, it has been held that a purchaserfrom the previous owner who has received rent from the tenant and hasbeen accepted by him as landlord is entitled to take advantage of similarprovisions which enable the landlord to terminate the tenancy by proofthat the premises are reasonably required for the personal occupationof himself (Vide Wille :Landlord and Tenant, 3rd edition, page 40).
The position in Ceylon too would appear to be the same, for under ourlaw a purchaser of land which is subject to a lease succeeds to all the
1 (1881) G A. C. 114 at 122.- (1944) 46 N. L. R. 133.
3 (1945) 46 N. L. R. 310.
Ulhumalevai v. Awa TJmma.
561
rights of the vendor on the lease without a special assignment of them bythe latter to the former. See A His v. Sigera1 and Silva v. Silva 2. But thecase of a lessee of premises which are already subject to a lease or in thepossession of the tenant is very different from that of a purchaser. Sucha lessee has no rights excepting that of receiving rents as against theprevious lessee or tenant. Wille (page 14) says:—
'* The owner of property which is subject to a lease conferring realrights on the tenant has obviously no title to grant an effective leasein favour of another person over the property or a portion of it forany period of time covered by the lease. ”
and the principle is also enunciated in the maxim “A hiring goes beforea subsequent hiring”. The lessee who obtains possession of the premiseshas a real right, a ius in re, while the lessee who does not obtain possessionand who takes the lease with notice of the fact that a prior lessee is inoccupation has only a iua in 'personam. See Wille pp. 126-131.
In the present case, the defendant was already in occupation as a tenantand he had a real right to the property, while the plaintiff who took asub-lease with notice of the fact that the defendant was in occupation ofthe premises has no jus in re, and it seems to me that for the purpose ofsection 8, proviso (c) of the Ordinance, a landlord must be defined asnot only one who is entitled to receive the rent but as one who has ajus in re in regard to the premises. The proposition thus stated wouldalso furnish an adequate reason for holding that a purchaser isentitled to the benefit conferred by section 8, proviso (c) for apurchaser is himself one who has the jus in re.
In South Africa the question whether a second lessee or tenant isentitled to claim the benefit of the provisions of the corresponding sectiondoes not seem to have arisen, for though, as set out earlier, Wille refersto the case of a purchaser, he does not refer to the case of a subsequentlessee as against a first lessee.
I am therefore of opinion that the plaintiff is not entitled to takeadvantage of the benefits conferred by section 8, proviso (c) on a land-lord in seeking to eject the defendant. The plaintiff’s action wastherefore rightly dismissed. For these reasons, the appeal fails and isdismissed with costs.
Appeal dismissed.