HILMI v. DE ALWIS

033-SLLR-SLLR-1980-V-2-HILMI-v.-DE-ALWIS.pdf


CA
Hilmi v. DeAlwis (Victor Perera, J.)
207
HILMI v. DE ALWISCOURT OF APPEALRANASINGHE, J. & VICTOR PERERA, J.
C.A. (S.C.) 280/79 F; D.C. COLOMBO 294JULY 22 & 23, 1980
Landlord and Tenant – Rent Act, No. 7 of 1972, sections 22(2)(b); 22(6); and22(8) – Reasonable requirement of premises for occupation as residence by thelandlord – Rent Restriction Act, No. 29 of 1948, section 13.
Premises were given on rent by the landlord, a government servant on agentleman’s agreement to get it back when he reached his retirement. The tenantrefused to quit the premises when required to do so by the landlord. The landlordthereupon gave the tenant one year’s notice of the termination of the tenancy interms of section 22(6) and filed action on the ground of reasonable requirement.
Held:
Where a landlord requires a premises for his own occupation and the tenant hasmade no serious effort to secure other accommodation or to retain otheraccommodation which might have been available, a court called upon to form anopinion as to reasonableness will be justified in granting a landlord a decree inejectment. The requirement of one year’s notice relieved to some extent a burdenthat may have been laid on the landlord.
Cases referred to:
Andreev. De Fonseka (1950) 51 NLR 213.
Arnolis Appuhamyv. De Alwis (1958) 60 NLR 141.
Swamyv. Gunawardene (1958) 61 NLR 85.
Abdul Rahim v. M. D. Gunasena Corporation Ltd. (1964) 66 NLR 419.
Gunasena v. Sangarallngam Pillai and Company (1948) 49 NLR 473.
APPEAL from the Order of the District Court of Colombo.
C. Renganathan, Q.C. with K. Shanmugalingam for defendant-appellant.
J. W. Subasinghe with N. S. A. Gunatilaka for plaintiff-respondent.
Cur adv vult.
14th August, 1980VICTOR PERERA, J.
This is an appeal by the defendant in the above case instituted bythe plaintiff-respondent on 26th July 1977 for ejectment of thedefendant-appellant from premises No. 240/4, Torrington Avenue,Colombo 7, and for recovery of damages. The plaintiff-respondent hadbeen a public servant from 1940 and had retired as Government Agent,Colombo, on 31.5.75 on his reaching the age of 58 years. According tohis evidence, as a public servant he was given official residence at
208
Sri Lanka Law Reports
(1980) 2 Sri LR.
Wijerama Mawatha from November 1970. At that time he was the ownerof a house at Spathodea Avenue which he sold in July 1974. With themoney realised from the sale of this house and other money he had, hepurchased premises No. 240/4, Torrington Avenue, and obtainedvacant possession thereof. He had the house repaired and colour-washed. According to the defendant-appellant’s evidence the househad been kept closed for sometime. The defendant-appellant was livingclose to the premises in premises No. 250/1/1, Torrington Avenue withhis wife and daughter from 1970 paying Rs. 275/- per month and wasnot known to the plaintiff-respondent.
According to the defendant-appellant he was the Manager ofWellawatte Spinning and Weaving Mills and of the shop run atCeylinco House, Fort. Sometime in 1974 the plaintiff-respondent hadcome into the shop at Ceylinco House to buy some materials andhad introduced himself as the Government Agent. According to thedefendant-appellant he stated in his own words, “in the course of theconversation, he asked me where I am presently residing. I told himthat I was staying at 250/1/1, Torrington Avenue. He was surprisedand stated that it was close to his house. Then I asked him why he iskeeping it closed for sometime. He said he wanted to get a verygood tenant who will look after the house and maintain it.”
This evidence would indicate that the plaintiff-respondent havingpurchased the premises kept it closed for sometime till this chancemeeting of the defendant-appellant. The defendant-appellant did notappear to be in want of a house as he was in occupation of a flat from1970 close to the premises and nowhere in his evidence did he statethat he was in need of a house or was on the look out for a house.
In the background of these facts the evidence of the plaintiff-respondent that at the discussion that ensued the defendant-appellant had promised to give back the house to him on hisretirement and that until then he would continue to keep the premiseshe was presently occupying as well, which were immediately behindwould appear quite probable. It was the evidence of the defendant-appellant that even after he went into occupation of these premisesNo. 240/4, he was paying the rent and maintaining premisesNo. 250/1/1 and obtained receipts in his name till October 1977 andthat he had given these premises to his sister and brother-in-law.Except for his bare statement that he collected the rent from them,there was no corroboration of this version from his brother-in-law orsister nor from his landlord K. A. Dissanayake Silva.
K. A. Dissanayake Silva, the owner of premises No. 250/1/1 gaveevidence that he owned four flats. He stated that the defendant-appellant was his tenant for 12 years and that he last paid rent to him
CA
HUmi v. DeA/wis (Victor Perera, J.)
209
in October 1977. He stated that he gave the defendant-appellant noauthority to give the premises to his brother-in-law and sister and hewas surprised to find some people there. In October 1977 he wantedthe flat back as some others were occupying it and he also statedthat if the defendant-appellant wanted to, he had the right to re-occupy this flat. The householder’s list produced showed that from1973 which were up to the period covering 1977 the only occupantsof premises No. 250/1/1 were the defendant-appellant and his family.This would indicate that the defendant-appellant had not given upthe use and control of premises No. 250/1/1 at any time.
The plaintiff-respondent’s position was that he expected to comeinto occupation of his premises on his retirement. He expected towork till he reached 60 years but he was not given an extension andhad to retire on 31.5.75. When he learnt that he was not getting anextension, the plaintiff-respondent stated that he immediatelyinformed the defendant-appellant and the defendant-appellantagreed to give him the house in December 1975. In December 1975the plaintiff-respondent states that he requested the defendant-appellant to remain there till April 1976 as his daughter was preparingfor the G.C.E. (Advanced Level) Examination and that he did not wishto disturb her studies till the examination was over. When he felt thatthe defendant-appellant would not shift in April 1976 he sent a noticedated 14.3.76 (P1). In P1 the plaintiff-respondent reminded thedefendant-appellant about the gentleman's agreement entered intowhen the house was given to him and various other events which hehas referred to in his evidence and requested him to vacate thepremises by 30th April 1976. The defendant-appellant through hisAttorney-at-law replied that letter by a letter dated 28.4.76 (P2)denying any such agreement and claiming his rights under the RentLaws. Thereupon on 18.5.76 the plaintiff-respondent gave noticeunder section 22(6) of the Rent Act, No. 7 of 1972 requesting thedefendant-appellant to vacate the premises at the end of one year ashe required the premises for occupation as a residence.
As the defendant-appellant failed to vacate the premises in terms ofthe notice, this action was instituted after the expiry of one year in July1977. In the plaint the plaintiff-respondent referred to the agreement,he pleaded that after he retired he was finding it difficult to pay Rs. 850/-as rent for the premises he was in occupation of as a tenant, that all hischildren were unmarried and dependent on him and that he had noother house of his own. The defendant-appellant denied the severalaverments in the plaint and pleaded that the plaintiff-respondent couldcontinue to live in the premises he was living as the rent was notRs. 850/-, that the children of the plaintiff-respondent were all grown upand independent and that the plaintiff-respondent had other houses ofhis own which he could use as his residence. One would have
210
Sri Lanka Law Reports
(1980) 2 Sri LR.
expected the defendant-appellant when he made these specificaverments to be possessed of certain facts within his knowledgewhich he proposed to prove in order to defeat the plea that the plaintiff-respondent reasonably required the premises for his own occupation.
The case proceeded to trial on 25.6.79 on the following issuesraised on behalf of the plaintiff-respondent:-
Are the premises in suit reasonably required for theoccupation of as a residence for the plaintiff?
Has the plaintiff given the defendant notice dated 18.5.76 asrequired by section 22(6) of the Rent Act, No. 7 of 1972 ?
If issues 1 and 2 are answered in the affirmative, is theplaintiff entitled to –
an order ejecting the defendant from the said premises;and
to recover damages from 1.6.77 calculated atRs. 850/- a month or at such other rate?
The defendant-appellant who specifically pleaded the aforesaidmatters did not raise any issues.
After hearing evidence led on behalf of the plaintiff-respondentand the defendant-appellant, the learned District Judge held that thepremises in suit are reasonably required for occupation as residencefor the plaintiff and his family. He answered issues 1, 2 and 3(a) in theaffirmative and awarded damages in the sum of Rs. 850/- a monthfrom 1.6.77 and ordered decree to be entered in under section 22(8)of the Rent Act, No. 7 of 1972. The defendant-appellant appealedfrom this judgment and obtained a stay of the execution of writ.
The question to be decided in this appeal is whether the trialJudge had come to an incorrect finding in favour of the plaintiff-respondent on the totality of the evidence led on behalf of theplaintiff-respondent and defendant-appellant.
The plaintiff-respondent had filed this action for ejectment on thebasis of the provision in Section 22 of the Rent Act, No. 7 of 1972.Section 22(2) provides that:
“Notwithstanding anything in any other law, no action orproceedings for the ejectment of the tenant of – 1
1. any residential premises the standard rent of which for amonth exceeds Rs. 100/- etc.
CA
Hilmi v. De Alwis (Victor Perera, J.)
211
shall be instituted in or entertained by any court unless where –
(b) the premises are, in the opinion of the court, reasonablyrequired for occupation as a residence for the landlord orany member of the family of the landlord etc.”
This Section is similar to the provisions of the Section 13 of the RentRestriction Act, No. 29 of 1948 as amended from time to time. Thequestion of reasonable requirement of the premises by a landlordunder the Rent Restriction Act had been the subject of a series ofdecisions of the Supreme Court and various aspects that came up forconsideration such as (1) the time at which the landlord’s requirementis assessed, (2) whether it is inherent in the criterion ofreasonableness that the position of the tenant too should be lookedinto, (3) the comparative means of the landlord and the tenant and (4)bona fides of the landlord had been examined and commented upon.
In the case of Andree v. De Fonseka,m Gratiaen, J. stated:
“the reasonableness of the landlord’s demand to be restored topossession for the purpose of his business must be proved toexist at the date of the institution of the action".
In the case of Arnolis Appuhamy v. De A/vv/'s,(2)Sansoni, J. said:
“I have already indicated my view as to the time at whichreasonableness of the landlord’s demand must be proved to exist.
I would not confine it to the time of the institution of the action”.
In the case of Swamy v. Gunawardene,{3) Weerasooriya, J. held:
“When a landlord sought to eject his tenant on the ground thatthe premises were required for his own occupation, thequestion whether the premises were so required should bedecided with reference to the state of affairs existing at thetime of trial and not at the date of the institution of the action”.
In Abdul Rahim v. Gunasena Corporation Ltd.(i) Sri Skanda Rajah,J. and Alles, J. expressed agreement with the views expressed bythe Judges in the earlier cases.
In the light of these decisions of the Supreme Court, one has toexamine the evidence on this aspect of the matter. The plaintiff-respondent’s evidence is that he had purchased the premises shortlyprior to his retirement in order to move into it after retirement. He hadretired on 31.5.75 and had to rent out another house as he had to
212
Sri Lanka Law Reports
(1980) 2 Sri LR.
vacate the official quarters and that he has been paying Rs. 850/- asrent for the house he was presently in occupation. His wife and threeunmarried children were his dependants. His two sons were beingeducated abroad and were expected at the end of July 1979. Thiswas what the Plaintiff-respondent testified in Court on 25th June1979 when he was giving evidence. The evidence in the case wasconcluded on that date. It was not proved that he had any house ofhis own which he could move into. The fact that the house in disputehad been kept closed until as a result of a casual meeting with thedefendant-appellant, the plaintiff-respondent offered the house to thedefendant-appellant who did not even testify that he was in need ofor on the look out for a house though he was living in the adjoininghouse for nearly 12 years lends support to the plaintiff-respondent’sevidence that there was the gentleman’s agreement relied on by him.Even the fact after the institution of this action in July 1977 thedefendant-appellant was proved to be the tenant of premises250/1/1, which was occupied by his sister and brother-in-law, tillOctober 1977 is a further circumstances that supports the plaintiff-respondent’s contention. Another matter for consideration is thatwhile the plaintiff-respondent was paying Rs. 850/- for the house hewas occupying he was receiving only Rs. 400/- as rent from thedefendant-appellant for his own house. The learned District Judgewas therefore correct when he held in favour of the plaintiff-respondent on this aspect in answering issue No. 1.
In the case of Gunasena v. Sangaratingam Pillai & Co.,iB) theSupreme Court held that the concept of reasonableness connoted arelative notion and laid down the principle that in determining thisissue, the court must take into account the position of the landlord aswell as the tenant together with any other factor which is relevant to adecision of the case. This aspect had also received the DistrictJudge’s consideration.
It is significant that in the Rent Act. No. 7 of 1972, Section 22(6)had altered the law by providing that if the premises are requiredby the landlord on the ground of reasonable requirement eitherfor himself or any member of his family then one year’s notice inwriting of the termination of tenancy shall be given by the landlord tothe tenant. This new provision thus gave the tenant a period of oneyear to find out alternative accommodation and was a conditionprecedent to the institution of the action. The notice P3 was sent onthe 18th May of 1976 and there does not appear to have been arepudiation of the claim made in that letter. The defendant-appellantin his evidence denied he received this notice. The Registered PostalArticle Delivery Receipt was produced marked P3A to prove that theletter was posted on 18.5.76 addressed to the defendant-appellant.
CA
Hilmi v. De Alwis (Victor Perera, J.)
213
On this evidence the District Judge held that the notice had beengiven and duly served on the defendant-appellant. The defendant-appellant having received this notice had made no endeavourwhatsoever to look out for alternative premises. His evidence on thispoint is at the tail-end of his evidence in re-examination, “I have noother house to shift. I have tried to get a house but I am finding itdifficult. After this action was filed I just inquired for few houses. I findit difficult. I do not have an ancestral house”. In view of this newprovision in the Law and in keeping with the criteria establishedunder the Rent Restriction Act in the numerous decided cases,where a landlord wants the premises for his own occupation and thetenant has made no serious effort to secure other accommodation orto retain other accommodation which might have or had beenavailable, a court called upon to form an opinion as toreasonableness will be justified in granting a landlord a decree forejectment. In my view, the requirement of one year’s notice thusprovided relieved to some extent a burden that may have been laidon a landlord.
At the argument of the appeal much stress was made in regard tothe comparative means of the landlord and of the tenant but no issuewas framed on this matter at the trial, but some questions were askedat random and certain answers elicited. It would appear from anexamination of the entirety of the evidence that at the trial that noneof the parties paid much importance to this aspect of the matter.Considering the evidence as a whole the court had considered thefinancial position of the plaintiff-respondent after retirement and thefact that he had three dependent children to maintain and come tothe conclusion that the plaintiff-respondent could ill afford to payRs. 850/- per month as rent for the house he was now occupying.
In regard to the bona tides of the plaintiff-respondent, it is inevidence that he had verbally and in writing (P1) offered to arrangefor the defendant-appellant the tenancy of the premises he wasoccupying, but the defendant-appellant was not agreeable. Thedefendant-appellant did not even deny this assertion by the plaintiff-respondent.
Considering all the factors proved in this case, we see no reasonto interfere with the finding on facts of the learned District Judge. Weaccordingly affirm the judgment. The appeal is dismissed with costs.
RANASINGHE, J. -1 agree.
Appeal dismissed.