028-NLR-NLR-V-50-ISMAIL-Appellant-and-HERFT-Respondent.pdf
112
. Ismail- v. Herft
1948Present: Windham J.
ISMAIL, Appellant, and HERFT, RespondentS. C. 40—C. It. Colombo, 6,939
Rent Restriction Ordinance—Premises required for use of plaintiff—Decree forejectment of defendant—Appeal—Death of plaintiff pending appeal—Duty of Appellate Court—Requirement of Ordinance must be satisfied—Ordinance 60 of 1942—Section 8 (e).
Where, under section 8 (c) of the Rent Restriction Ordinance, theplaintiff has obtained a decree for ejectment against the defendanton the ground that the premises are reasonably required as a residencefor himself and bis family and the plaintiff dies pending an appeal fromsuch order and before ■writ of ejectment has issued, it is the duty of theCourt of Appeal to satisfy itself that the premises are still reasonablyrequired for the purposes set out in the plaint.
Appeal from a judgment of the Commissioner of Requests, Colombo.H. W. Tambiah, with It. ManiTcavasagar, for defendant, appellant.
M. Charavanamuttu, for substituted plaintiff, respondent.
Cur. adv. vult.
WINDHAM J.—Ismail v. Herjt
113
December 21, 1948. Windham J.—
This is an appeal by the tenant of a dwelling house against a judgmentof the learned Commissioner ordering his eviction on the ground that thepremises were reasonably required for the use and occupation as a residencefor the plaintiff-respondent and his family. In his judgment, which wasdelivered on November 17, 1947, the learned Commissioner ordered thatwrit of ejectment should not issue until May 31, 1948, provided thatdamages in Rs. 65 per month should be regularly paid, that being theamount of the monthly rent payable under the tenancy. They were sopaid. Meanwhile, this appeal was lodged on November 21, 1947. OnMarch 9, 1948, before writ of ejectment was due to be issued, the plaintiffdied, leaving a widow and four children. One of his sons, as soleexecutor of his will, was substituted as respondent. Under his will,which was proved on September 27, 1948, the plaintiff left all his propertyto biR three sons (including the above executor) and his daughter in equalshares absolutely.
Three grounds of appeal have been urged. First, it is said that theplaintiff failed to give to the defendant a valid notice to quit. OnMarch 31, 1947, the plaintiff purchased the premises in question fromanother. He forthwith on the same day gave notice to quit to thedefendant, who had been the vendor’s tenant. The notice reached thedefendant on the same day, March 31, and required him to vacate by theend of April, failing which he would be sued for ejectment and damagesas from May 1. The tenancy being a monthly one which ran from thefirst of each month, having begun on the first of a month, this was to mymind a perfectly good notice to quit, in accordance with the requirementsof the law, as recently clarified in Thassim v. Cabeen x. But it is arguedfor the defendant that since the notice to quit contained a direction to thedefendant (as it did) that he should pay the plaintiff “ all rent accruingas and from April 1, that is to say, it did not require him to pay theplaintiff as and from March 31,—and since the plaintiff in bis evidencestated that “ up to the 31st March the defendant was liable to pay rentsto the previous landlord, and from the 1st April the defendant was mytenant ”,—therefore the plaintiff cannot be heard to say that he becamethe defendant’s landlord before the 1st April, with the result that whenhe served the notice to quit, on 31st March, he was not his landlord andthe notice was accordingly bad and of no effect. I do not think thiscontention can be acceded to. As the learned Commissioner rightlyheld, the plaintiff became the defendant’s landlord at the moment hepurchased the premises on 31st March, before he served the notice toquit, if only a few hours before. The plaintiff could not modify this legalresult by merely stating that he became landlord as from 1st April andby requiring the defendant to pay him rent only as from that day.Clearly the plaintiff’s not requiring him to pay rent in respect of the lastday of March, or in respect of a proportionate fraction of that day, was amere arrangement of convenience, which could be adjusted if necessary(though there was no evidence that it was adjusted) between the plaintiffand his vendor. This ground of appeal accordingly fails.
1 (1946) 47 N. I>. R. 440.
114
■WINDHAM J.—Ismail v. Uerft
The second ground of appeal is that the learned Commissioner erred,in the light of the evidence, in finding that the premises were reasonablyrequired for the use and occupation as a residehce for the plaintiff andhis family. The defendant bases this contention mainly on the plaintiff’s.answers to two questions put to him in cross-examination. Thesequestions were the following :—(1) “ The real reason why you want thesepremises is to get your second son, Shelton, to run a dairy in thesepremises ?”(2) “You require these premises for the business of your
second son ?” To each of these questions the plaintiff answered “ YesIt is accordingly contended that by his answers the plaintiff wasAdmitting that the enabling of his son to run a dairy there was the onlygenuine reason why the plaintiff wanted the premises, and that he did notin truth want them as a residence for himself and the other members ofhis family at all. But the learned Commissioner went into this pointvery carefully, and he considered these particular answers of the plaintiffalong with his definite statements, both in examination in chief and inTe-examination, that he did want to live in the house himself, whichstatements were corroborated by other evidence that was accepted.
I see no cause to interfere on this ground with the reasonable conclusion-of the learned Commissioner that, in the light of all the plaintiff’s evidence,the latter did not intend to convey the idea that he wanted the premisesfor his son’s business only. He never said that this was his only reason.It may well be that this was the real reason, in the sense of the primaryreason, and that but for the fact that these particular premises could beused as a dairy the plaintiff might have sought other premises for his ownresidence. But that is quite compatible with his having at the same-time a genuine desire to reside in the premises himself also, and therebyto “ kill two birds with one stone ”. The learned Commissioner wasaccordingly justified in holding on all the evidence that the premiseswere reasonably required for the use and occupation as a residence forthe plaintiff and his family.
In support of this same ground of appeal a further argument has beenAdvanced. From the terms of his judgment it is clear that the learnedCommissioner considered that the hardship which would result to thedefendant if the action were to succeed, and the hardship which wouldresult to the plaintiff if it were to be dismissed, were about evenlybalanced, and in deciding in favour of the plaintiff he followed theprinciple laid down in Raman v. Per era l, that where the hardships areequal the landlord should succeed by reason of his ownership. It isArgued that this decision must be taken to have been impliedly overruledin Mahroof v. Isadeen 2, where it was held that where neither the plaintiffnor the defendant proved their respective allegations the plaintiff mustfail since he has not discharged the burden cast upon him as plaintiff.But I do not consider that Mahroof v. Isadeen {supra) affects the principlelaid down in Raman v. Per era (supra). Tor although by a rigid applicationof the axiom that “ if equals be added to equals the wholes are equal”,it might be contended that the position where neither side has proved itsallegations must be the same as where each side has adduced equally cogent
(1944) 46 N. L. B. 133.
* (1946) 48 N .L. B. 14.
WINDHAM J.—I e-mail v. Herft
1X6
evidence in support of its allegations, and that the landlord must accord-ingly fail in the latter case as in the former, nevertheless the legal positionis not truly the same in the two cases. For in the latter case the landlordhas made out a case to answer, and it is for the Court, in the light of thetenant’s evidence, to decide whether the landlord’s requirement is areasonable one; whereas in the former case the landlord has adducedno evidence on which it could be held, even in the absence of any evidenceon the tenant’s behalf, that his requirement was a reasonable one.Furthermore, I find that the principle laid down in Raman v. Rerera (supra)has been very recently approved and applied by my brother Gratiaen inPiyatissa v. De Mel. I respectfully agree with my brother that theprinciple should be followed by reason both of its intrinsic merits and ofthe undesirability of fluctuating judicial interpretations with their result-ing uncertainty.
The second ground of appeal accordingly fails, and one ground remains,based on the admitted fact that the plaintiff died on a date after thejudgment of the learned Commissioner and the filing of the appeal, butbefore the date fixed for the issue of the writ of ejectment and before thehearing of this appeal. Although this ground could not of course havebeen included in the grounds of appeal, I consider that the plaintiff’sdeath is a fact which can properly be taken into account by this Court inconsidering whether the defendant ought to be ejected. For the right ofthe plaintiff to occupy the premises by virtue of section 8 (c) of theRent Restriction Ordinance, No. 60 of 1942, is a personal right, conferredon him only on the ground that the premises are reasonably required,in the words of his plaint, “ as a residence for the plaintiff and his family ”.Until he had actually entered into occupation of the premises, which henever did, this was not a right which would be transmissible to his heirsor successors, being personal to himself and founded upon his personalrequirements. It is certainly not a right which enures for bis executor,for his executor’s requirements as to residence are not the plaintiff’s.Nor can the learned Commissioner’s judgment be construed as holdingthat the premises were proved to be reasonably required as a residencefor the plaintiff’s family, apart from the plaintiff himself. The plaint•did not allege this (the words are “for the plaintiff and his family ”), andthe Commissioner’s judgment made two things quite clear. First, as Ihave already said, the respective needs of the plaintiff and of thedefendant for the premises were considered to be about equally balanced,so that the fact of the plaintiff’s being the landlord had to be brought into tip the scale in his favour. It may be noted here that the plaintiffwas a married man with a wife and four children, of whom one wasunder age, and that at the time of the hearing his two elder sons wereliving away from him at the house of one of them, while the remainder ofhis family were temporarily also living elsewhere, he himself residingalone in a friend’s house until he should be able to move into the housein dispute and be rejoined by them. The defendant, on his part, was amarried man with a wife and two children, and also two nephews and twonieces, all living with him in the premises in dispute, and no alternativeaccommodation for him was offered or available. Secondly, the conclu-sion reached by the learned Commissioner, upon adequate evidence,
lie
Hendrick Homy v. Inspector of Police, Kandana
was that “ the premises are reasonably required by the plaintiff forhis own use as a residence”. In arriving at this conclusion he foundthat—“ the fact that the plaintiff is obliged to rely on the charity of afriend for his own accommodation, and has to live separate from theother members of his family for want of proper accommodation, would,indicate that the plaintiff does require the premises for use as a residence ”.
In view of these observations and findings it seems to me that theground was entirely cut from beneath the feet of the plaintiff’s caseby his untimely death before the writ of ejectment issued and before hecould occupy the premises. The time at which the conditions set outin section 8 (c) of the Rent Restriction Ordinance, No. 60 of 1942, mustbe shown to exist by a landlord is, I conceive, the time when the corutis required to make the ejectment order. But in a case where there is anappeal from such an order, and the landlord who brought the action hasdied before writ of ejectment has issued and before he has entered intopossession of the premises, then I think that the appeal court shouldlikewise satisfy itself that the premises are still reasonably required for thepurpose set out in the plaint, that is to say, in the present case, as aresidence for the landlord and his family. This has now become impos-sible, and in any case his death must obviously have tipped in favour ofthe defendant the scales which even while the plaintiff lived were so evenlybalanced. This appeal must therefore be allowed, and the judgmentof the learned Commissioner set aside. Nothing in this judgment, ofcourse, will operate to preclude whatever person may have succeeded,or may succeed, the deceased plaintiff as landlord of the premises, fromsuing the defendant for eviction on the ground that the premises arereasonably required as a residence for him or her, the new landlord. Inview of the learned Commissioner’s judgment for eviction having beengood when it was made, I order that the substituted plaintiff-respon-dent shall have the plaintiff’s costs of the trial, while the defendant shallhave his costs of this appeal.
♦
Appeal allowed.