COURT OF APPEALWEERASURIYA, J.
C. MATARA 177/REOCTOBER 4, 1999JANUARY 11, 2000
Rent Act – S.22(l)(d) – Deterioration owing to neglect and default -Duty to repair building – whose duty ? – Proving of Authorised Rent,on whom lies the burden ? Allegation of fact not denied – is it anadmission ?
The question in issue was whether the condition of the premises haddeteriorated due to the default and neglect of the Defendant Respondent(tenant) within the meaning of S.22( 1 )(d).
Tenant is liable to the landlord (plaintiff – appellant) for gross negligenceas well as for fraud.
Per Weerasuriya, J.
“It is evident that the absence of Defendant – Respondent and keepingthe premises closed had resulted in leaks of the roof and consequentseeping of rain water to the wooden floor in upstairs causing decayand cracking of walls. Therefore the conduct of the DefendantRespondent does not measure upto the standard of a prudenthouseholder in the care and use of his property."
District Judge was in grave error when he laid the responsibility onthe Plaintiff Appellant to repair the leased premises without anyintimation and permission by the Defendant Respondent.
The burden is on the Defendant Respondent to prove the amount ofauthorised rent by the production of the Municipal Assessment.Register, secondary evidence could have been admitted only if thebest evidence was for some reason not available.
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Though in the English Courts allegations of fact not denied specificallyor by necessary implication are taken to be admitted, in the Codethere is no such provision and the non denial of an allegation is nottaken as an admission of it.
APPEAL from the Judgment of the District Court of Matara.
Cases referred to :
Wijeratne v. Dschou – 77 NLR 157
Premaratne v. Oliver de Silva – 55 NLR 448
Pernando v. The Ceylon Tea Co. Ltd.. – 3 SCR 35
P. A. D. Samarasekera P. C.. with Keerlhi Sri Gunawardena for
M. S. A. Hassan with Ms Safaya Hassan for Defendant Respondent.
Cur. adv. vuli.
July 21. 2000.
WEERASURIYA, J.The plaintiff-appellant by his plaint dated 06.06.1987.instituted action against the defendant-respondent seeking hisejectment from premises bearing No. 57. Galbokka Road,Weligama. morefully described in the schedule to the plaint,damages in a sum of Rs. 15,000/= and costs.
The defendant-respondent in his answer whilst denyingaverments in the plaint prayed for dismissal of the action. Thecase proceeded to trial on 12 issues and at the conclusionof the case, learned District Judge by his judgment dated08. 10. 1991, dismissed the action. It is from the aforesaidjudgment that this appeal has been lodged.
At the hearing of this appeal, learned President's Counselappearing for the plaintiff-appellant submitted that the learnedDistrict Judge had misdirected himself in holding –
Hassan v. Iqbal
that the duty of repairing the premises in suit lay with theplaintiff-appellant; and
that the defendant-respondent is entitled to a judgment ina sum of Rs. 3830.79 being payments in excess of theauthorised rent.
It is common ground that the defendant-respondent tookthe premises on rent on 01.06.1979 on a monthly rental ofRs. 140/= and carried on a business of purchase and sale ofold jewellery. The defendant-respondent-conceded that he leftfor Saudi Arabia in search of employment in 1983 and remainedthere till January 1989 barring a short visit to Sri Lanka inJuly 1986. However, his assertion was that during his absence,the business was carried on by his uncle Mohamed Marikkar.
The question in issue was whether the condition of thepremises in suit had deteriorated due to the default and neglectof the defendant-respondent (the tenant) within the meaning ofSection 22(1) (d) of the Rent Act. It is a question of fact to bedetermined in the light of the circumstances of each casewhether the evidence placed before Court is adequate to warranta finding that the condition of the leased premises hasdeteriorated owing to the neglect and default of the tenant.
Under the Roman Dutch Law, it is the duty of the tenant touse the leased premises with the degree of diligence which aprudent paterfamilias or householder would exercise in the careand preservation of his own property. Accordingly, a tenant isliable to the landlord for gross negligence as well as for fraud.(Voet 19.02.29)
It is to be observed that there was no evidence placed thatat the commencement of the tenancy the premises were in abad condition or unfit for use. It was revealed that the premisesin suit were in a row with two other boutiques which were abouthundred years old made out of cabok stones.
The Grama Seva Niladari who testified on behalf of theplaintiff-appellant described the premises in suit as a building
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about 100 years old lying in close proximity to the railway track.Despite an attempt by the defendant-respondent to show thatthe premises were kept open for business. Grama Seva Niladarihas noticed the boutique being kept open by Mohamed Marikkaran old and sickly person without any business being conductedfor about 2 days. Therefore, that, business was conducted on aregular basis in the premises during the absence of thedefendant-respondent had been rendered unacceptable by theaforesaid evidence of the Grama Seva Niladari. He also advertedto the fact that at the time of his inspection in January 1987 hefound leaks in the roof which had resulted in the wooden planksin the upstairs getting decayed due to seepage of water andcracks on the front wall.
The defendant-respondent admitted that tiles weredisplaced and cracks had appeared on the walls. Despite hisassertion that he replaced tiles which were displaced on hisreturn from Saudi Arabia he conceded that he did not effectany repairs or made an application to the Rent Board to haverepairs effected through the landlord.
It is common knowledge that when a building isunoccupied and kept closed, prompt and proper attention of aleak in the roof is not possible. Thus, it is evident that theabsence of Defendant – Respondent and keeping the premisesclosed had resulted in leaks of the roof and consequent seepingof rain water to the wooden floor in upstairs causing decay andcracking of walls. Therefore, the conduct of the defendant-respondent does not measure upto the standard of a prudenthouseholder in the care and use of his property.
It was held in Wijeratne v. Dschou,n (that in terms of Section12A( 1 )(d) of the Rent Restriction Act where the requirementwas causing wilful damage) that it is only in the perspective oflandlord and tenant relationship that question whether wilfuldamage has been caused should be determined.
Hassan v. Iqbal
It is to be observed that, in that case, the plaintiff (landlord)claimed ejectment of the defendant on the ground, inter alia,that the defendant had caused wilful damage to the premiseswithin the meaning of Section 12A(l)(d) of the Rent RestrictionAct by keeping the premises unoccupied and closed for aperiod of over 2 years. There was evidence that four rows oftiles were missing at the junction of the wall- and the roof of therear verandah with several large damp patches on the walls ofthe building. According to the architect to whom a commissionwas issued by Court, the damp patches were due to leaks whichappeared in the roof during the period when the premises werenot occupied and prompt attention had not been given to preventthe leaks from developing further and causing the dampnessto penetrate into brick work and the plaster surface.
Meggary on Rent Acts (Vol.I – 11th Edition – Page 409) indealing with the subject of deterioration of premises by wasteor neglect under sub-head waste or neglect states that – Wasteor neglect includes causing the floor of a house to sag by usinga room for storing heavy bales of cloth, allowing a substantialdeterioration in the house to be caused by damp due to tenant'sfailure to occupy the house during winter and doing nothing toprevent the garden becoming overgrown.
In the instant case, the learned District Judge had made afinding that the duty of repairing the building was on theplaintiff-appellant and he was at fault for failing to take stepsto effect the necessary repairs. He had adverted to the fact thatthe upstairs being common with the premises bearing No.55which was under the control of the plaintiff-appellant, he hadthe opportunity to inspect the roof and take necessary steps torepair the building. The fact that the upstairs was common andthe defendant-respondent was in possession of the boutiqueroom on the ground floor, would not absolve him from the dutyof taking care of the leased premises by effecting the necessaryrepairs. The existence of a common upstairs below the roof ofthe premises in suit will in no way permit the plaintiff-appellantto carry out the repairs without the permission of the defendant-
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respondent. Any interference with the leased premises by theplaintiff-appellant is not permissible as such premises were inthe care and custody of the defendant-respondent and any suchinterference would have exposed him to the risk of prosecutionfor criminal trespass.
Learned District Judge was in grave error when he laid theresponsibility on the plaintiff-appellant to repair the leasedpremises without any intimation and permission by thedefendant-respondent.
The other question to be examined is whether the defendant-respondent has paid rent to the plaintiff-appellant in excess ofthe authorised rent. Learned President's Counsel for theplaintiff-appellant contended that defendant-respondent hadneither produced an extract of the assessment register nor ledevidence relating to assessment to determine the authorisedrent.
It was held in Premaratne u. Oliver de Silva121 that burdenwas on the defendant to prove the amount of authorised rentby the production of the municipal assessment register and thatsecondary evidence could have been admitted only if the bestevidence was for some reason not available.
The defendant-respondent averred in his answer that theauthorised rent was only Rs. 33.59. The plaintiff-appellant inhis replication never sought to controvert that position butnevertheless stated that standard rent was below Rs. 100/=. Itis to be noted that the plaint was presented in terms of Section22(2) (II) (d) of the Rent Act on the basis that the standard rentof the premises exceed Rs. 100/=.
It has been held that although in the English Courtsallegations of fact not denied specifically or by necessaryimplication are taken to be admitted, in our Code there is nosuch provision and the non-denial of an allegation is not taken
Hassan v. Iqbal
as an admission of it. (Vide Fernando v. The Ceylon Tea Co.Ltd.'3')
The defendant-respondent in the instant case neitherproduced an extract of the assessment register nor led anyevidence relating to the authorised rent despite raising anissue on that. In the circumstances, there is no basis for thefinding that authorised rent was Rs. 33.59 cents.
For the above reasons, I proceed to set aside the judgmentof the learned District Judge dated 01.10.1991 and enterjudgment for the plain tiff-appellant as prayed for in the plaint.
UDALAGAMA, J. – I agree.
HASSAN v. IQUBAL