045-NLR-NLR-V-50-HAMEEDU-LEBBE-et-al.-Appellants-and-ADAM-SAIBO-et-al.-Respondents.pdf
NAGALING AM J.—Hameedu Lebbe v. Adam Saibo
181
1948Present : Nagalingam J.
HAMEEDU IiEBBE et al., Appellants, and ADAM SAIBOet al., Respondents
S. C. 249—C. R. Colombo, 5,572
Rent Restriction Ordinance—Premises reasonably required for use of landlord—Starting new business—Matter to be considered—Ordinance No. 60 of1942—Section 8 (c).
In considering whether the premises are reasonably required for theuse of the landlord in terms of section 8 (c) of the Rent RestrictionOrdinance, the fact that the landlord who has no business of his ownwants to earn a livelihood by commencing a business is a matter to betaken into account.
Gunasena v. Sangaralingampillai (1948) 49 N. L. R. 473, followed.
-^V.PPEAL from a judgment of the Commissioner of Requests,Colombo.
H. V. Perera, K.C., with H. W. Tambiah, for plaintiffs, appellants.
M. I. M. Haniffa, with M. A. M. Hussein, for defendants, respondents.
Cur. adv. vult.
November 12, 1948. Nagalingam J.—
This appeal once again involves the application of the provisions ofsection 8 (c) of the Rent Restriction Ordinance to a new set of factswhich, happily, are not in dispute. It would appear that the first plaintiffin partnership with two of his brothers-in-law carried on a business at 97,Maliban Street. His wife died, and the relationship between him and hisbrothers-in-law became strained. No. 97, Maliban Street, in which thepartnership business is carried on had been rented out by the parties,but since the estrangement the brothers-in-law purchased the premises,and, although the first plaintiff has his rights in the business as a partner,he finds himself in a position of insecurity in regard to his continuanceas a partner in the firm. The strained relationship between bim andhis brothers-in-law has been aggravated by the fact that the first plaintiffis now again married. Jn view of his precarious position as a partnerin the firm, he deemed it necessary to commence a business on his ownwith the aid and assistance of a brother of his present wife, who is thesecond plaintiff in the case. With this end in view the two plaintiffspurchased the premises, the subject-matter of this action, for a sum ofno less than Rs. 35,000, of which they paid to the vendor at the date ofpurchase a sum of Rs. 20,000 and hypothecated the property for thebalance. It is the fact, however, that at the date of purchase by the
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NAGAX.INGAM J.—Hameedu Lebbe v. Adam Saibo
plaintiffs of these premises the defendants were and had been tenantsthereof for a number of years. It is also, again, the fact that the vendordid not undertake to give vacant possession to the plaintiffs.
The defendants attorned to the plaintiffs and paid rent to them. Theplaintiffs thereafter gave notice to the defendants terminating the tenancyand stated that the premises were required by them for the purposes oftheir own business, the ground upon which they have sought to maintainthe action in ejectment. The defendants resist the action on the groundthat they are unable to leave these premises, as it is impossible for themto find other premises in that locality to carry on their business. Thelearned Commissioner, following the earlier series of cases decided underthe Rent Restriction Ordinance, all of which emphasise that alternativeaccommodation should be found for the tenant who is sought to beejected, held that “ it is not possible to eject the defendants withoutgiving them reasonable time to find alternative accommodation or theplaintiffs themselves offering them alternative accommodation somewherein the neighbourhood.”
The proper interpretation to be placed on section 8 (c) of the Rent Res-triction Ordinance has been laid down in the case of Ghinasena v.Sangaralingampillaix by a bench of two Judges, and Windham J. deliveringthe judgment of the Court said, “ alternative accommodation is a relevantfactor, no more and no less, in determining whether the requirement ofthe premises for the landlord’s purposes is reasonable ”. The learnedJudge took care, however, to indicate that it is not altogether a governingfactor in deciding the question whether the premises are reasonablyrequired by the landlord or not. In regard to this aspect of the matter,he expressed himself thus :
“ And so far as concerns the question of alternative accommodation,I would guard against saying that the Court must satisfy itself (as itmust under the English Acts) that there is alternative accommodationfor the tenant before ordering eviction under section 8 (e). That is notthe position. A case might well occur where, after duly consideringthe fact that there was no alternative accommodation, the Court mightstill consider that the landlord’s requirement was reasonable.”
In the light of this decision, it is plain to see that the learnedCommissioner has approached the question from a not altogethersatisfactory angle. He was greatly influenced in the view he took by thecircumstance that alternative accommodation was not available to thedefendants and that the first plaintiff was yet a partner with the brothers-in-law of his first wife in business carried on at No. 97, Maliban Street.He, however, failed to note that the second plaintiff is without employ-ment himself, that the very purpose for which the two plaintiffs madethe joint purchase of the property was to enable them to carry on businessand that these factors must also be weighed in considering the question ofthe reasonableness of the landlord’s requirement.
I do not read the Rent Restriction Ordinance as placing a fetter for alltimes on new ventures and as effectively preventing an owner of propertyfrom getting possession of it and on which he has laid out large capital
1 (1948) 49 N. L. It. 473.
NAGALENGAM J.—Sanieedu Lebbe v. Adam Saibo
183
in order to establish himself in business. If the contrary were the case,the Legislature need not have, and would not have, enacted section 8 (c)at all. For, so far as a landlord does not require the premises for purposesof his own, the tenant is ensured complete security of tenure ; but whereit is shown that the landlord requires the premises for his own use, thenother considerations must apply, not solely, as was pointed out in thecase, already cited, the lack of alternative accommodation for the tenant.In fact, in this case, the Commissioner put the case of the defendants veryhigh when he questioned the first plaintiff as to whether he had offeredany alternative accommodation to the defendants, implying that it wasthe duty of the landlord to find alternative accommodation for the tenantbefore he can claim recovery of the premises. The learned Commis-sioner, it cannot be said, erred, in view of the earlier decisions.
In these circumstances, the rights of parties must be examined afresh,bearing in mind the true principle applicable to an adjudication of thequestions involved. In the case of Gunasena v. Sangaralingampillai{supra) the landlord failed because he had a place of business of his ownand his sole idea was to expand the business by obtaining possession of thedemised premises, while the tenant in that case had no other place togo. That was not a ease where the plaintiff himself had no place ofbusiness of his own, nor was it a case where the landlord had investedmoney on the purchase of property for the avowed purpose of carryingon business himself. These two factors distinguish the present case fromthat. If the defendants are turned out from the premises, there is nodoubt that hardship will be caused to them. On the other hand, if theplaintiffs are prevented from obtaining possession of the premises, theywould suffer equally great hardship. I do not place very much reliance onthe unsatisfactory connection of the first plaintiff as a partner with hiserstwhile brothers-in-law; there is, however, everything to be said in favourof the second plaintiff who has no business of his own wanting to earn alivelihood by commencing a business himself. Where the hardship isequally great viewed from either the landlord’s point of view or that ofthe tenant, in determining the question of reasonableness of the landlord’srequirement the pendulum must be regarded as swinging in the landlord’sfavour inasmuch as he is the owner of the premises. I would, therefore,hold that the plaintiffs have made out a case under section 8 (c) of theOrdinance for ejectment of the defendant.
There is, however, one matter which causes me some anxiety, and thatis whether in the circumstances of this case an immediate order ofejectment should issue. The defendants are said to be carrying on abusiness in tea at the premises, and a period of six weeks, I think, wouldbe more than ample to enable them either to dispose of their stocks or tom ake other arrangements with regard to them.
I would, therefore, set aside the judgment of the learned Commissionerand enter judgment for the plaintiffs in terms of paragraphs (a) and (c) oftheir prayer to the plaint modified to the extent that the writ of ejectmentshould not issue till January 1, 1949. The plaintiffs will be entitled to-f he costs both of appeal and of the lower Court.
Appeal allowed.