ISMATH v. SELLADURAI

033-SLLR-SLLR-1995-V-1-ISMATH-v.-SELLADURAI.pdf


ISMATH
v.
SELLADURAI
SUPREME COURT.
FERNANDO, J.
DHEERARATNA, J. ANDWADUGODAPITIYA, J.
S.C. 26/94
C.A. 502/91 – D.C. COLOMBO 7336/REAUGUST 25, 1995.
Landlord and Tenant – Rent Act, No. 7 of 1972 – Sections 22(1) (b), 22(1) (bb)and 18 – Meaning of the words 'premises which have been let to the tenant on orafter commencement of this Act" – Attornment – When the premises have beenlet.
In 1941 the plaintiff’s mother let the premises in suit to the defendant’s father. Thepremises were gifted to the plaintiff by her mother in 1986. Defendant’s father, theoriginal tenant, died in 1965 and her mother succeeded to the tenancy. Upon herdeath in 1982, the defendant succeeded. After the premises were gifted to theplaintiff the defendant attorned to her on 1.9.1986. The plaintiff filed action to ejectthe defendant on the ground of reasonable requirement in terms of subsection22(1) (b) on the basis that the premises were let to the defendant after thecommencement of the Rent Act (1.3.1972). The question arose as to theapplicability of that subsection. The District Court held that the subsectionapplied but the Court of Appeal held that it did not.
Held:
The wording of the subsection 22(1) (b) unequivocally suggests that thetenant whose ejectment is sought and the tenant to whom the premises havebeen let, is one and the same person.
Words “which have been let to the tenant" are descriptive of the“premises”. This description is made in relation to the tenant and not in relation tothe landlord: therefore the attornment of the tenant to the landlord in 1986 has norelevance.
The ordinary meaning of the word “let” is “to grant to a tenant or hirer”. Thatword cannot mean anything other than creation of the tenancy in respect of thepremises with the tenant whose ejectment is sought; it is rather artificial to colourthe meaning of that word with reference to a contract of letting which subsistedwith the original tenant.
The premises have been let to the defendant-tenant in 1982, that is afterthe commencement of the Rent Act and the plaintiff-appellant is therefore entitledto succeed.
Cases referred to:
Weerasuriya v. Manamperi (1992) 1 Sri LR 31
Sriyani Peris v. Mohamed (1986) 2 Sri LR 384
Fernando v. Wijesekera (1969) 73 NLR 10
Justin Fernando v. Abdul Rahaman (1951) 52 NLR 463.
Miriam Lawrence v. A. V. Arnolda; 1984 Bar Association Law Journal Vol. 1Part IV136; (1981) 1 Sri LR 232.
Chinnamma v. Dewan Harish AIR 1972 (Delhi) 182 at 189.
APPEAL from judgment of the Court of Appeal.
A. A. M. Marleen with Ms. R. Lamahewa and M. Fawzin for appellant.
S.Mahenthiran for respondent.
Cur. adv. vult.
September 28,1995.
DHEERARATNE J.
In 1941 the plaintiff’s mother let the premises which is the subjectmatter of this action to the defendant’s father. The plaintiff bacameowner of the premises in 1986 by virtue of a deed of gift from hermother. Defendant’s father, the original tenant, died in 1965 and hermother succeeded to the tenancy; upon her death in 1982, thedefendant succeeded as the tenant of the premises. After thepremises were gifted to the plaintiff, the defendant attorned to her asher tenant. In 1989 the plaintiff filed this action against the defendantin terms of subsection 22(1) (b) of the Rent Act, No. 7 of 1972, on theground of reasonable requirement of the premises for her occupationas a residence. At the trial it was recorded as an admission that thedefendant became a tenant of the plaintiff from 1.9.1986 (that beingthe date of attornment).
The learned trial judge gave judgment in favour of the plaintiff, butthe Court of Appeal reversed that judgment and made order
dismissing the plaintiff’s action. The plaintiff has now appealed to thiscourt.
The only question canvassed before us is the applicability orotherwise of the wording of subsection 22(1) (b) to the facts of thepresent case and there is no doubt that if the words are inapplicable,the plaintiff’s action was rightly dismissed. The words of thatsubsection relevant to the facts are as follows:-
Not withstanding anything in any other law, no action or proceedingfor the ejectment of the tenant of any premises… shall be institutedin or entertained by any court, unless where – such premises, beingpremises which have been let to the tenant on or after the date ofcommencement of this Act, are… reasonably required for theoccupation as a residence for the Jandlord…
Subsection 22(1) (bb), similarly worded, refers to premises let to thetenant prior to the commencement of the Act. The date of thecommencement of the Act is 1.3.1972. The contention on bealf of thedefendant, which found acceptance with the Court of Appeal, wasthat inasmuch as the premises were not let to the tenant on or afterthe commencement of the Act, the plaintiff's action cannot befounded on subsection 22(1) (b). This contention is based on thehypothesis that there was only one contract of letting of the premisesand that was between the plaintiff's mother on the one hand as thelandlord and the defendant's father on the other as the tenant; thedefendant’s mother and later the defendant merely succeeded to thetenancy rights of the original tenant of the premises; the premiseswere not let either to the defendant or to her mother; they succeededto the tenancy by operation of law.
Support for this view principally came from the judgment of theCourt of Appeal in Weerasuriya v. Manamperi<1) where the Court wascalled upon to interpret the words “Premises let to the tenant prior tothe commencement of the Act” in the subsection 22(1) (bb). In thatcase the original tenant took the premises on rent in 1968 and hisson, the defendant, succeeded to the tenancy on his father's death in1980 by operation of law. The Court of Appeal held that there was nofresh contract of the tenancy and it could not be said that thepremises were let after the commencement of the Act; therefore theaction was properly brought under subsection 22(1) (bb). I Shalladvert to this case again later in this judgment.
In a case decided by the Court of Appeal earlier viz. Sriyani Perisv. Mohamed®, the Court held that subsection 22(1) (bb) refers to thecurrent landlord and a fresh tenancy was created under the currentlandlord to whom the tpnant had attorned [See Fernando v.Wijesekara<3) & Justin Fernando v. Abdul Rahaman(4)] and on thatbasis the premises have been let after the Act came into operation. InFernando v. Wijesekera (Supra) Weeramantry J. summed up,
"We see that the notion of attornment contains no element which
points to the continued existence of the prior contract – a meaning
which is often mistakenly supposed to be in the term.”
Learned counsel for the plaintiff-appellant in the instant case tooadvocated the same line of reasoning. The Court of Appeal failed toconsider this aspect of the case because it was under themisapprehension that the plaintiff succeeded as the landlord at thedeath of her mother, whereas her mother was still alive when theDistrict Court action was proceeding according to the evidence led.Learned counsel contended that the question whether a fresh lettingtook place after the date of commencement of the Act inconsequence of the attornment should have been answered in theaffirmative and the plaintiff was entitled to succeed on that ground.
It would seem that in Weerasuriya's case (supra) the Court ofAppeal accepted the submission of learned counsel for therespondent that the case of Sriyani Peris (supra) could bedistinguished on the basis that there is no statutory provision in theRent Act for succession of a landlord in the event of his death unlikein the case of a tenant where specific provision is made. But thedecision in Weerasuriya's case (supra) was primarily based on thedicta of Ismail, J. in the case of Miriam Lawrence v. A. V. Arnolda(3);the Court of Appeal said that the dicta, which it quoted, were bindingon it, being a pronouncement of the Supreme Court. Ismail, J. stated
in that case (with Samarawickrama, J. and Wanasundara, J.agreeing) –
“Section 22(1) (bb) of Act, No. 7 of 1972 clearly Indicates thatan action under this law can only be maintained if the premiseshad been let to the tenant prior to the date of commencementof the Act. The Act had come into operation on 1.3.1972.Therefore, it was the duty of the trial judge to have determinedwhether the premises had been let prior to 1.3.1972 orsubsequent to that date. If the premises had been let after thatdate clearly the provisions of the Act would not apply.
It is also in evidence that the defendant's father was the originaltenant of the premises since 1941 and the defendant hadbecome the tenant of this'premises only after the father’s deathin August 1972. Therefore, it was necessary for the Court tohave considered whether the defendant became a statutorytenant of the'premises in suit on the death of the father underthe provisions of the Rent Restriction Ordinance (sic) or hebecame a tenant on a fresh contract of tenancy".
It does not appear to me that Ismail, J. ventured to express anopinion that the concept of continuation of a contract of letting undera deceased tenant by his successor should be used as an aid tointerpret the word “let” in that subsection. If he did so it was onlyinferentially, for, the case was remitted to the District Court for furthertrial on additional issues indicated by Court, one being – “Did thedefendant become the tenant of the plaintiff as from 1.9.1972 on afresh contract of tenancy?” It is correct to say then, with great respectto Ismail, J. that his observations made are clearly obiter.
Learned counsel for the plaintiff-appellant contends that uponattornment in 1986, a new contract of tenancy came into being [citingFernando v. Wijesekera (supra)] between the new landlord and thepresent tenant; that the letting under that contract took place in 1986,and was thus after 1.3.72; that it is the letting by the current landlordthat is relevant [Sriyani Peiris v. Mohamed (supra)] and hence section22(1) (b) applied. But it seems to me that this is not the real issue,
because even though the letting under the present contract occurredin 1986, what is relevant under the statutory provision is when thepremises were let to the tenant, whether by the present landlord, orunder the subsisting contract of tenancy, or otherwise.
It was submitted on behalf of the defendant-respondent, on theother hand, that attornment does not create a new contract; thatadmittedly there was a contract of tenancy between landlord andtenant in 1941: that despite subsequent devolution of rights and/orsuccession to the interests of the original parties to the contract,these did not give rise to a new contract, and that the successorsmerely stepped into the shoes of their respective predecessors; andthat, therefore, the same contract continued to operate, so that for thepurposes of section 22(1) (b) the premises had been let to thepresent tenant, the defendant-respondent, in 1941. It was pointed outto him that this interpretation could result in an obvious absurdity thatpremises may then have to be regarded as having been let to aperson at a date even prior to his birth.
Neither of these contentions afford a satisfactory basis forinterpreting section 22(1) (b). We have to determine the meaning ofthe phrase “premises which have been let to the tenant on or afterthe date of commencement of this Act.”
It is clear that “tenant" means the present tenant, namely theparticular individual whom the landlord wishes to eject from thepremises, and does not mean or include any former tenant, even ifthe present tenant is the successor to such tenant. Section 22(1) (b)contemplates an action for the ejectment of the tenant of anypremises and the premises are described as being premises whichhave been let to the tenant. The wording therefore, unequivocallysuggests that the tenant whose ejectment is sought and the tenant towhom the premises have been let is one and the same person.Reasonable requirement cannot involve the need of any formeroccupant of the premises.
This phrase gives rise to no difficulty where subsequent to thecontract of tenancy between a landlord and a tenant, there has been
neither a change of landlord occurring upon an attornmentconsequent upon a transfer or devolution of title of the landlord, nor achange of tenancy occurring by reason of succession upon thedeath of the tenant. In such cases, if the contract created a tenancyon or after 1.3.72, this necessarily meant that the premises were “let”to the tenant on or after 1.3.72.
Difficulties do arise, however, where such changes have takenplace. The question then is whether this phrase means-
premises let to the present tenant, under a contract oftenancy entered into on or after 1.3.72; and if so, whether in cases ofattornment and/or succession to tenancy, the contract of tenancybetween the present landlord and the present tenant is the identicalcontract which subsisted between the original landlord and theoriginal tenant (and not a different contract though in terms similar tothe original contract); or
premises which the present tenant had commenced tooccupy, qua tenant, on or after 1.3.72.
The phrase in question refers only to the nexus between the tenantand the premises; the relevant issue thus is whether the premises insuit were let to the present tenant on or after 1.3.72. This phrasemakes no reference to the nexus between the tenant and thelandlord, and hence the question whether such letting was by thepresent landlord or by a former landlord does not arise.
If the construction sought to be given by learned counsel for thedefendant-respondent for the word “let” is correct, no premisesreferred in subsections 22(1) (b) or 22(1) (bb) could ever berecovered by a landlord on the ground of reasonable requirementonce the original tenant dies and he is succeeded by a personspecified in terms of the Act, as such person will not be the person towhom the premises have been let. If the legislature evercontemplated imposing such a drastic fetter on the landlord’s rightsof recovering premises on the grounds of reasonable requirement, itcould have been done not indirectly as suggested, but directly, asdone with reference to the date of acquisition of ownership of thepremises by the landlord, by enacting subsection 22(7).
Let me demonstrate the mischief likely to be caused to a tenant ifthe interpretation advanced by the defendant to the word “let” isapplied to another section of the Rent Act. Section 18 of the Actreads –
“Where any building used for residential purposes which is let to atenant is demolished on an order made under the provisions ofthe House and Town Improvement Ordinance, the owner of theland on which the demolished building stood shall not constructany building or buildings on such land except with the permissionof the board. The board in granting such permission may by orderfix the number of residential units that shall be constructed in suchland. Such owner shall let one of the residential units soconstructed to the tenant of the demolished building, if suchtenant makes a request therefor."
Can the owner of the residential units so constructed be heard tosay that a particular tenant is disentitled to make a request for a newunit, because the demolished building was not let to him, but to hisdead ancestor, whose successor the tenant became by operation oflaw? The absurdity is obvious.
It seems to me that in the context in which the word “let” appearsin the subsection, it cannot mean anything other than creation of thetenancy in respect of the premises with the tenant whose ejectment issought. If the question is asked, “to whom are the premises let”, theobvious answer is they are let to the defendant tenant; and if it isasked “from when have they been let to the defendant tenant"?, theanswer is equally obvious – from 1982. The ordinary meaning of theword “let” as given in the Chambers 20th Century Dictionery is “grantto a tenant or hirer.” It would be rather artificial to colour the meaningof the word “let" with reference to a contract of letting whichsubsisted with the original tenant. As expressed by Deshpande, J. in,the case of Chinnamma v. Dewan Harish(6). “ the word let is anordinary word and is not a term of art. It has, therefore, to be
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The Sinhala version accords with the construction I have given tothe subsection.
For the above reasons the appeal is allowed, the judgment of theCourt of Appeal is set aside and the judgment of the District Court isaffirmed. The plaintiff-appellant is entitled to recover costs of theCourt of Appeal and of this Court fixed at Rs. 5000. The defendant isgiven time till 1.03.1996 to quit the premises and deliver possessionto the plaintiff. The plaintiff will be entitled to take out writ of ejectmentwithout notice to the defendant after 1.03.1996.
FERNANDO, J. -1 agree. '
WADUGODAPITIYA, J. -1 agree.
Appeal allowed.