121-NLR-NLR-V-60-JAMES-FERNANDO-Appellant-and-M.-W.-WIJESIRI-et-al.-Respondents.pdf
476
SINNETAMBY, J.—James Fernando v. Wijesiri
1959Present: Sinnetamby, J.
JAMES FERNANDO, Appellant, and M. W. WTJESIRI et al.T
Respondents
s. 0. 240—G. R. Gobvnho, 62,220jRE
Rent Restriction Act, No. 29 of 1948—Section 13 (1) (c)—“ Reasonable requirementof landlord—Should sub-tenant's needs also be considered ?
The needs of the sub-tenant need not he taken into account in determiningwhether premises are reasonably required by the landlord for his use within themeaning of section 13(1) (c) of te Rent Restriction Act.
jA.PPEAL from a judgment of the Court of Requests, Colombo.
H. W. Jayewardene, Q.G., with R. L. de Zoysa, for the 2nd defendant-appellant.
S. D. Jayasundera, for the plaintiff-respondent.
Our. adv. milt.
February 2b, 1959. Sinnetamby, J.—
In this case the plaintiff sued the first defendant for ejectment fromthe premises set out in the schedule to the plaint and later added thesecond defendant who was the sub-tenant of the first defendant in orderto obtain an effective decree against the persons in possession. Thepremises are subject to the Rent Restriction Act.
In his answer the first defendant took up the defence that he was onlythe agent of the second and that the de facto tenant was the seconddefendant. At the trial, however, this defence was abandoned and theparties went to trial on only one issue, namely, whether the premises insuit were reasonably required by the plaintiff for his occupation as aresidence and for the purpose of his profession within the meaning ofsection 13 (1) (c) of the Act. The learned trial Judge held that thepremises were so required taking into consideration only the relativehardship that the granting of an order for possession would have on thefirst defendant and the refusal to grant it would have on the plaintiff.He specifically stated that as the second defendant was only a sub-tenantany hardship caused to him need not be taken into account and in factdid not take it into account. He came to the conclusion that thepremises were reasonably required by the plaintiff for his use and enteredjudgment as prayed for. The appeal is against that decision.
Learned Counsel who appeared for the sub-tenant argued that thelearned trial Judge had misdirected himself on this question and shouldhave taken into account the hardship that an order for possession would
SIN1TETAMHY, J.—James Fernando il. Wijesiri
477
have on the sub-tenant. For this proposition he relied on the observa-tions of Sansoni, J. in Suppiah v. Samarakoon 1. In that case, withoutdeciding the question, the learned Judge stated that he was inclined toadopt the principle laid down by Asquith, L. J. in Harle v. Frampton 3wherein the learned Lord Justice expressed himself as follows :
“ The true view, we think, is that the eounty court judge shouldtake into account hardship to all who may be affected by the grant orrefusal of an order for possession—relatives, dependants, lodgers,guests, and the stranger within the gates—but should weigh suchhardship with due regard to the status of the persons affected andtheir ‘ proximity ’ to the tenant or landlord, and the extent to which,consequently, hardship to them would be hardship to him.”
For the purpose of the ease which Sansoni, J. was dealing with it wasnot necessary to decide the question. I may mention that Harle v.Frampton (supra) was a case in which the Court took into considerationthe hardship caused to not the tenant but his married daughter, herhusband and their child none of whom was dependent on the tenant butall of whom were living with him.
Under the English Act of 1933 there are two distinct provisions inregard to recovery of possession by a landlord. In the first placesection 3 (1) (a) of the English Act deals with cases where there is noalternative accommodation available or offered. Section 3 (1) (6) dealswith cases where alternative accommodation is offered. Where alter-native accommodation is not offered the landlord can succeed only if heshows that the dwelling house is reasonably required by him for hisoccupation, if he is seeking to avail himself of that particular provisionin schedule 1 of the Act—there are other sets of circumstances enumeratedin the schedule the existence of any one of which would also entitle thelandlord to an order without proof of alternative accommodation. Inall cases which come under section 3 (1) (a), that is, where no alternativeaccommodation is available and it is sought to eject the tenant on theground of the reasonable requirement of the landlord, there is a provisowhich precludes the Court from granting an order if greater hardship iscaused by so doing than by refusing to do so. In deciding this questionthe Court is required to take into consideration all the circumstances ofthe case including the question of whether other accommodation isavailable for the landlord or the tenant.
Where alternative accommodation is offered or is available section3 (1) (b) applies and all that the Court has to consider is whether it isreasonable to make such an order and the Court is not restricted to theset of circumstances enumerated in the schedule: for instance, the Courtmay consider the requirements of persons who are not the landlordhimself, his son or daughter over 18 years of age, or his father or mother.(These are the persons enumerated in paragraph (h) of schedule I.)
1 (1954) 55 N. L. B. 161.
s (1947) 2 A. E. B. 604.
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• SINNETAMBY, J.—James Fernando v. Wijesiri
It will be seen that under the English Act the Court must first besatisfied that it is reasonable to make an order and then further besatisfied that the premises are reasonably required by the landlord forhis occupation. There are thus two stages where the question of reason-ableness has to be considered ; the matters to be taken into considerationin deciding the question differ and depend on whether the reasonablenessis being considered in respect of the landlord’s requirement or in respectof the Court’s order. Even if the Court finds that the premises arereasonably required by the landlord, it will still not make an order forejectment unless it considers it reasonable in all the circumstances of thecase to make it. The law in regard to orders made under the Act of1933 in England has been set out fully in the case of Gumming v. Damson1.Lord Greene, Master of Rolls, therein expressed the view that the RentRestriction Acts are intended for the protection of tenants and not forthe penalisation of landlords. Dealing with the appellant’s case theMaster of Rolls stated as follows :
“ The appellant, therefore, in order to succeed in her application hadto satisfy the Court that it was reasonable to make an order for therecovery of possession, and to satisfy the Court that suitable alter-native accommodation was available. At the outset it is necessary topoint out the difference between paras (a) and -(b) of that sub-section.The necessity of satisfying the Court that it is reasonable to make anorder applies to both, but under para (a) and the schedule to which itrefers, the Court, if so satisfied, can make an order notwithstandingthat there is no proof of suitable alternative accommodation.”
It follows that where a dwelling house is reasonably required by thelandlord for his occupation, in considering the question of reasonablerequirement the absence of alternative accommodation is of noimportance under the English law, and is relevant only in considering thequestion of hardship under the proviso to sub-paragraph (h) of schedule 1whereas under our law it is a question of major importance in decidingthe reasonable requirement of the landlord. I would therefore be verycautious in adopting for the purposes of our Act the meaning assigned bythe English Courts to the words “ reasonably required ” under theEnglish Act.
The English Act expressly protects sub-tenants to whom the tenanthas lawfully sublet—vide section 5 (5) and section 15 (3) of the Act of1920. Where the subletting is not lawful these provisions do not applyand the general rule laid down by the decisions of the English Courts isthat a non-occupying tenant who is not in occupation of at least a portionof the premises let is not entitled to the protection of the Acts—Megarry(8th Ed. p. 182). Furthermore at common law a sub-tenant’sinterest isextinguished automatically on the expiration of the tenancy out of whichit was carved and he becomes a trespasser—Knightsbridge Estates TrustLtd. v. Deehy 2.
1 (1942) 2 A. E. E. 653.
* (1950) 2 K. B. 228 at 232.
SIJWETAMBY, J. —James Fernando v. Wijesiri
479
The question that now arises is whether the principle laid down inHarte v. Frampton (supra) should be followed in cases governed by ourRent Restriction Act. It is always dangerous to place too much relianceon cases decided under the provisions of one Act to interpret similarterms used in another Act which may be, and in this case, is vitallydifferent in many respects. Under our Act in the absence of theauthority by the Rent Restriction Board, a landlord may sue the tenantto obtain recovery of the premises let if he establishes under section13 (1) (c) that they are reasonably required for his use.; In construingthese provisions our Courts have held in Chmasena v. Sangaralingampillai1that the Court should take into account not only the requirements of thelandlord but also that of the tenant together with any other factor thatmay be directly relevant to the acquisition of the premises by thelandlord. In that particular case the Appeal Court took the view thatthe absence of alternative accommodation was one of the factors whichshould be taken into account to determine the question of hardship inconsidering whether the premises were reasonably required for thelandlord. Under the law in England, however, in deciding the questionof whether premises are reasonably required by the landlord the positionof the tenant, e.g., any hardship to him, is irrelevant (Megarry-8th Ed.p. 264): but even if the premises are reasonably required by the landlordthe Court is, under the proviso to paragraph (h) of schedule 1 of theEnglish Act, precluded from making an order if more hardship is causedto the tenant than to the landlord and in determining the question ofhardship the availability of alternative accommodation for the landlordor the tenant is relevant. Our Act in this respect is silent: it makes noexpress reference to the existence or absence of alternative accommoda-tion and makes no specific reference to hardship, but the effect of thedecision in Gunasena v. Sangaralingampillai (supra) is to make it relevantin deciding the question of whether the requirement of the landlord isreasonable. Learned Counsel for the appellant invites this Court tofollow the English decisions in regard to hardship. In my view havingregard to the differences in the provisions of the respective Acts it wouldbe improper or at least imprudent to adopt the interpretation placedupon words which are specifically referred to in the English Act but findno place in our enactment. We have to interpret the provisions of ourAct as they stand. There are differences in other respects as well, e.g.,under the English Acts the requirements of the landlord have to beconsidered at the time the order is made and the availability of suitablealternative accommodation has to be established when the order takeseffect: there are no similar provisions in our Act.
Quite apart from a consideration of the English authorities, there havebeen cases decided by our Courts where it has been held that in decidingthe question of reasonable requirement it is not necessary to consider theneeds of a sub-tenant. In Noorbhoy v. Sellappa Ghettiar 2 H. 1ST. G.Fernando, J. without discussing the question took the view that theneeds of the sub-tenant need not be taken into account in determining
(1948) 49 N. L. B. 473.2 {1957) 58 N. L. B. 389.
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SDSTNETAMBY, J.—James Fernando v. Wijesiri
whether as against the landlord the premises are reasonably required bythe tenant. There is also an expression of opinion in support of thisview contained in a judgment of a Bench of five Judges in Ibrahim Saibov. Mansoor 1. That case dealt with the question of whether in a decreeagainst a tenant alone it was possible to dispossess in executionproceedings a sub-tenant who was not a party to the suit. In decidingthat question the Court considered whether the Rent Restriction Actprotects sub-tenants and in the judgment of the Court the followingpassage occurs:
“ This Act contains provisions regulating the rights and liabilities ofa landlord and his tenant inter se and has no direct application to asub-tenant vis-a-vis the head landlord. It was held by Lord Greene,M. R., in delivering the judgment of the Court of Appeal in the case ofBrown v. Draper (19441 K.B. 309) which dealt with the case of a licenseeof a tenant that the licensee 1 cannot in her own right claim the pro-tection of the Acts ’. That proposition is equally true of our RentRestriction Act and what is stated about a licensee is equally appli-cable to a sub-tenant. But a sub-tenant can shelter behind theprotection afforded to the tenant (his immediate landlord) if thatprotection has not ceased to exist. Now where a decree for evictionhas been entered against the tenant that protection would normallyhave oeased to exist. A sub-tenant can plead its continued existenceonly on the basis that the decree was entered by a Court which had nojurisdiction to enter it.”
The observations of Asquith, L. J. in Harte v. Frampton (supra) mustbe considered only in the light of the facts established in that case. Theoriginal tenant in that case was in occupation of the premises let and hetook in to reside with him certain relatives. Had the tenant also notbeen in occupation the decision would well have been otherwise. In thecase under consideration the tenant is not in occupation. In Harte v.Frampton (supra) therefore the facts were entirely different and observa-tions made in connection with those facts, in my view, are irrelevant.Even if the tenant in the present case had been in occupation of a part ofthe premises I would hesitate to apply the principle enunciated in Hartev. Frampton in view of the fact that our Act differs, as I have endeavouredto show, in many respects from the English Acts.
I would, therefore, dismiss the appeal with costs.
Appeal dismissed-
1 (1953) 54 N. L. B. 217 at 224.