HANEEDA v. ARASAKULARATNE

036-SLLR-SLLR-1999-V-3-HANEEDA-v.-ARASAKULARATNE.pdf


CA
Haneeda v. Arasakularatne
271
HANEEDA
v.ARASAKULARATNE
COURT OF APPEALEDUSSURIYA, J.,JAYASINGHE, J.
A. NO. 55/96 (F).
C. KALUTARA NO. 411/RE.SEPTEMBER 17. 18. 1999.
Rent Act, No. 7 of 1972 – Damage to premises – Accident – Does the contractof tenancy survive.
The plaintiff-appellants alleged that a substantial portion of the premises wasdamaged as a result of an accident and consequent to the damage to the premisesthe contract of tenancy was at an end and sought the eviction of the defendant-respondent. The defendant-respondent averred that the premises was still intactand usable for his business. The District Court held that the damage was minimaland the contract of tenancy had not come to an end.
On appeal –
Held:
It appears that the repair at the present rent would cost the plaintiff
34 years' of rent.
Per Jayasinghe, J.
"It is certainly iniquitous if the Rent Act mandates the landlord to incur34 years' of rent for a repair to enable the tenant to occupy and enjoy thepremises not only to the exclusion of the landlord but also to the exclusionof his income as well. I do not think that the legislature ever intended toperpetuate so much hardship on the landlord for the benefit of the tenantor cause the landlord to sacrifice all his rights to keep the tenant in occupation." 1
1.The tenant is entitled to ask the landlord to repair the building. If he failsor neglects or refuses, tenant may apply to the Rent Board for approval.It is also open to the landlord to seek a revision of the rent. If the RentBoard is to increase the rent 100% it would yet be under Rs. 50/- permonth.
272
Sri Lanka Law Reports
[1999] 3 Sri LR.
The building is over 75 years old, even in the event of the Rent Boardincreasing the rent by 100% it would add up in years to a building thatis over 75 years old. It is not a question of fact whether as a result ofthe damage caused to the building whether the tenancy is at an end, itis a mixed question of fact and law.
APPEAL from the judgment of the District Court of Kalutara.
Cases referred to:
Samuel v. Mohideen – 71 NLR 451.
Gifry v. de Silva.
Morleys (Birmingham) Ltd. v. Slater – 1950 1 KB 506.
De Silva v. Seneviratna – [1981] 2 Sri LR. 7.
P. A. D. Samarasekera, PC with R. Y. D. Jayasekera for plaintiff-appellant.
Ranjan Gunaratne for defendant-respondent.
Cur. adv. vult.
March 11, 1999JAYASINGHE, J.
The plaintiffs-appellants, instituted action in the District Court of Kalutaraon 06.04.94 for the ejectment of the defendant from the premises insuit; averred that the 1st plaintiff is the wife of the 2nd plaintiff; thatthe premises in suit was administered by the 2nd plaintiff on behalfof the 1st plaintiff; that the 1st plaintiff is the owner of the said premisesNo. 147, Main Street, Beruwala, and the landlord of the defendant-respondent; that the premises is governed by the Rent Act, No. 7of 1972; that the defendant carried on a business of a tea boutiqueat the said premises; that the monthly rent was Rs. 23.58 as de-termined by the Rent Board; that a substantial portion of the premiseswas damaged as a result of an accident on 03.04.1994; that thepremises can no longer be used for the said purpose of the defendant;that consequent to the damage to the premises the contract of tenancybetween the parties was at an end; that the defendant without anymanner of right, title and claim to the said premises is seeking torebuild or reconstruct the premises anew; that the 1st plaintiff hasthe sole right to rebuild or renovate or alter the said building as theowner; that irreparable loss and damage would be caused to the
CAHaneeda v. Arasakularatne (Jayasinghe, J.)273
plaintiffs if the defendant is not restrained by an enjoining order and/or interim injunction and permanent injunction and prayed for adeclaration that the contract of tenancy has come to an end; for anenjoining order until the issue of an interim injunction restraining thereconstructing of the premises pending the final determination of theaction; for ejectment of the defendant, her servants and agents, etc.,and for vacant peaceful possession.
The defendants filed answer on 09.06.94. Averred that the premiseswas still intact and usable by the defendant for his business; that thetenancy has survived notwithstanding the accident; prayed for dam-ages in a sum of Rs. 250 a day from 03.04.1994 for not being ableto repair the premises. The plaintiffs filed replication on 10.08.1994.The learned District Judge after trial came to a finding that the damageto the building being minimal and consequently unable to hold thatthe tenancy has come to an end.
This appeal is from the judgment of the learned District Judge.
The main question for determination before Court were issuesNo. 1 and 2 raised by the plaintiff; whether a substantial portion ofthe premises was damaged as a result of the accident on 03.04.1994and secondly, whether the tenancy was at an end as a result of thesaid destruction.
The 2nd plaintiff gave evidence at the trial and stated that on theday in question a lorry No. 24 Sri 9961 coming from the directionof Galle had collided with a stationary lorry No. 22 Sri 1246 whichin turn due to the impact crashed into the premises destroying a wallof the building occupied by the defendant. The vehicle had goneabout 4 feet into the premises and was removed by the defendantby supporting the upper floor immediately above the lorry that hadcrashed in; the plaintiff stated that the premises was beyond repairand prayed for a declaration that the premises has been destroyedas a result of the accident. In cross-examination the plaintiff admittedthat the front portion of the premises was still intact; that cracks onthe walls due to the accident on the upper floor were visible and thatrestoration of the said building was inexpedient and also costly. It wassuggested to the plaintiff that the building could be restored at a costof about Rs. 7,000 to Rs. 8,000 to which the plaintiff responded thatit is not worth the expenditure. One Kalansuriya an engineer then gave
274
Sri Lanka Law Reports
[1999] 3 Sri LR.
evidence for the plaintiff. He stated that an area 10 feet in width and13 feet in height has been damaged as a result of the accident.That the upper floor is about 10 feet from ground level and the wallsextend to about 15 1/2 feet upto the roof level and that a crack wasvisible upto 13 feet. That the building was about 100 years old andbuilt with kabok and plastered with lime and stated that when heinspected the building the upper floor was held by wooden supportfrom below and that it was likely to collapse if the support waswithdrawn. He said that it was not worth repairing the premisesconsidering the extent of the damage and the vibration it has sus-tained. His evidence was that even after a repair the possibility ofthe building collapsing cannot be ruled out. Thereafter, one Withanachchithe chief clerk Beruwala Urban Council and police constable 2356Nandasena of Beruwala Police Station gave evidence for the plaintiff.
The defendant called one Amaraweera, a retired Technical Officer.He stated that the building could be repaired at a cost of Rs. 9,850.He said that when he inspected the building the upper floor was beingheld with the support from below. He had noticed cracks on the wallsin addition to an opening of 9 1/2 feet x 13 feet; that the buildingwas about 75 to 80 years old and that it can be restored withoutany structural damage at a cost of Rs. 9,560 (the earlier position wasRs. 9,850). It is also relevant to advert to the evidence of the policeofficer who inspected the premises after the accident. He observedthat the lorry No. 29 Sri 1246 has gone about 3 feet into the buildingand that the roof of the building was intact and that some bricks wereresting on the roof of the lorry. He further stated that the businessis still being carried out in the premises.
It is a question of fact whether the building has suffered damageto the extent that it is no longer profitable or expedient to be restored.This Court would interfere with the findings of the District Judge onlyif such a finding is perverse or not supportable on the evidence thathas been led, or if the question of fact goes beyond the realm ofthe factual situation to assume the character of a question of law,or if the question of fact is complex, this Court should intervene.According to the police officer who gave evidence the roof was stillintact but with support from below and that the business is still beingcarried out as usual. When the plaintiff yvas asked whether the buildingcan be restored at a cost of Rs. 7,500 to Rs. 8,000, he avoidedanswering the question and replied that it was of no use. Even the
CA
Haneeda v. Arasakularatne (Jayasinghe, J.)
275
evidence of Kalansuriya was that it can be restored, though hequestioned the expediency of the exercise. He did not write off thebuilding, but only expressed doubts as to the sustainability of thebuilding in the long-term. As against this evidence the defence witnessAmaraweera's position was that it could be restored at a cost of afigure around Rs. 9,500. He stated that the weight of the roof restson two walls that has not sustained any damage due to the impact.
On a consideration of evidence of both technical officers the trialJudge has come to a finding that the extent of the damage has nothad an effect on the sustainability of the building, the extent of thedamage being minimal. He makes a point that since business is stillbeing carried out in the premises in its present state, is enough proofof the fact that the building is still usable.
Mr. Samarasekera made a forceful submission that the repair wouldcost the plaintiff in excess of 20 years' of rent. In fact, the repair atthe present rent would cost the plaintiff 34 years’ of rent. Mr..Samarasekera submitted that if the landlord is called upon to pay asmuch as 34 years' of rent for the repair then such a situation goesbeyond the realm of a question of fact. The question is not whetherthe building is repairable as stated by the defence witness Amaraweera.What is relevant is the cost factor. The cost of Rs. 9,850 may notappear excessive as observed by the trial Judge. But, when consideredin terms of the rent that has been levied is it unconscionable? Nodoubt the Rent Act is designed to protect the incumbent tenant. Mr.Goonaratne submitted that the Rent Act is an iniquitous piece oflegislation. It certainly is iniquitous if an interpretation is placed thatthe Rent Act protects the tenant, come what may. It is certainlyiniquitous if the Rent Act mandates the landlord to incur 34 years'of rent for a repair to enable the tenant to occupy and enjoy thepremises not only to the exclusion of the landlord but also to theexclusion of hissncome as well. I do not think that the legislatureever intended to perpetuate so much hardship on the landlord for thebenefit of the tenant or cause the landlord to sacrifice all his rightsto keep the tenant in occupation. I am unable to subscribe to thepoint of view that the protection of the rights of the tenant is the onlyconsideration. The Act does not travel to endless limits to protect thetenant. That journey must end at some point. In the present caseI am inclined to the view that it has, Mr. Goonaratne referred Courtto Samuel v. Mohideeri''1 where Sirimane, J. observed that ". . . the
276
Sri Lanka Law Reports
[1999] 3 Sri LR.
evidence shows that even though the premises are not completelydestroyed in the sense that some of the walls are still standing yet,the leased premises can no longer be used as a building. In sucha case, where the leased tenament is so extensively damaged thatit can no longer be used for the purpose for which it was leased,it is impossible to say, that the premises are still in existence for thetenancy to continue”. In Giffry v. de Silvat* it was held that wherea building which is subject to a lease is burnt down without the faultof the landlord or tenant the tenancy comes to an end even if it fellwithin the Rent Restriction Act. In Morley's (Birmingham) Ltd. v.Slated landlords let the premises to a tenant on a monthly tenancypartly for use as a dwelling house and partly for business purposes. . . the premises were damaged by enemy action and remaineduninhabitable but the tenant was able to and continued to use themfor the purpose of his business. The landlords gave the tenants anotice in writing to quit. It was held that the premises were originallylet as a dwelling house within the Rent Act; they remained the sameidentifiable premises. The fact that owing to the damage the tenantwas prevented from living in the premises did not change the characterof the letting and therefore at the date of expiration of the notice toquit the premises were still let as a dwelling house and the tenantwas entitled to the protection of the Rent Act. Mr. Goonaratne reliedheavily on the fact that the premises were still intact and is still beingused for the purpose for which it has been let. The cases referredto by counsel certainly support his argument that the tenancy hassurvived notwithstanding the accident and that the extent of damageis a question of fact and therefore this Court should be slow tointerfere. But, Mr. Samarasekera argued that the plaintiff is being calledupon to spend 34 years' of his income for the restoration of the buildingand therefore the tenancy was at an end irrespective of the extentof the damage to the building. Therefore, the cases referred to byMr. Goonaratne are distinguishable. If the cost of repairs was not aconsideration then this Court would accommodate Mr. Goonaratne'sargument. This Court, however, is unable to ignore the expenditurethe plaintiff is called upon to incur in terms of the rent. The tenantis entitled to ask the landlord to repair the building as provided forby the Rent Act. If the landlord fails or neglects or refuses then thetenant may apply to the Rent Board for approval. It is also open tothe landlord to seek a revision of the rent. The question would thenarise how much could the Rent Board stipulate as an enhanced rent.In the present case if the Rent Board is to increase the rent 100%
CA
Haneeda v. Arasakularatne (Jayasinghe, J.)
277
it would yet be under Rs. 50 per month. How long does it take forthe building to yield an income to the landlord in the event of anincrease of 100%? Here it is not an arithmetical exercise. It is aquestion whether as a result of the damage caused to the buildingwhether the tenancy is at an end. At this point it ceases to be aquestion of fact only. It is a mixed question of fact and law. Accordingto the plaintiff the building is about 100 years old while accordingto the defendant it is about 75 years. The evidence is that it is builtof with kabok and plastered with lime. The building has outlived itsusefulness in the context of the development the building industry hasachieved. Even in the unlikely event of the Rent Board increasingthe rent by 100% upon an application by the landlord yet it wouldadd up in years to a building that is over 75 years. To my mind thisis not only a question of fact. This Court would therefore step in. Mr.Goonaratne submitted that the tenant is yet willing to undertake therepairs. In fact, the defendant attempted to restore the building whenhe was restrained by a Court order. The Rent Act does not makeprovision for the tenant to undertake repairs without the approval ofthe Rent Board. I cannot but help to observe the defendant's anxietyto restore the building and continue the tenancy because of the meagrerent he is paying and cost that he has to incur for the repairs. But,from the plaintiff's standpoint it is years of rent. This is not only aquestion of fact. I am unable to agree with Mr. Goonaratne's sub-mission that this Court ought not to interfere with the findings of thetrial Judge on the basis that this is a pure question of fact. In thiscontext the guidelines set out in De Silva v. Seneviratnd4) is not helpfulthough I am in agreement “with the principle which it has laid down.
It is my view for the reasons stated above that a substantial portionof the premises has been damaged as a result of the accident speciallytaken in the context of the commitment by the landlord to restore thesaid premises and I hold that the tenancy is at an end.
I, accordingly, set aside the findings of the learned District Judgeand enter judgment for the plaintiff as prayed for with costs fixed atRs. 3,100.
EDUSSURIYA, J. – I agree.
Appeal allowed.