038-SLLR-SLLR-1997-V-1-JAYAWARDANE-v.-YASALIN-NONA.pdf
JAYAWARDANE
v.YASALIN NONA
COURT OF APPEALWEERASEKERA,J„
WIGNESWARAN, J.
A. 538/87<F)
C. MT. LAVINIA 1074/REJANUARY 20,1997
Rent Act, 7 of 1972 – Sections 22( 1A) and 22( 1) (bb) – Landlord – Failure to averthat plaintiff did not own more than one house – Notice to Commissioner ofNational Housing – Is it Imperative -Is it a question of fact – Life interest holder -Could he maintain an action on the basis of reasonable requirement? – Questionsof law raised for the first time in appeal.
The plaintiff-respondent instituted action seeking an order for ejectment in termsof S.22(1) (bb) of the Rent Act. The defendant-appellant denied the calim that thepremises were reasonably required for the use of the plaintiff respondent andstated that the action could not be maintained as the plaintiff-respondent was theowner of more than one house. The District Court gave judgment in favour of theplaintiff-respondent.
At the appeal three questions of law were raised for the first time –
that the action was bad in law and the validity vitiated by the failure to aver inthe plaint that she did not own more than one house.
the plaintiff-respondent had failed to furnish the required notice to theCommissioner of National Housing prior to instituting action, which failure alsovitiated the validity of the action.
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that as the plaintiff-respondent had only a life interest she could not maintainan action on the basis of reasonable requirement.
Held:
(i) The Sinhala pleadings of the plaint cannot give any other meaning than that theplaintiff owns not more than one house. Even if one finds the languageacademically and gramatically wanting there is no doubt as to what the plaintiff-respondent understood it to mean.
Per Weerasekera J.,
'Even if one were to concede the argument of the defendant-appellant this is aclear instance where the maxim “Falsa demonstratio Non Nocet" is applicable".
{ii) The plaint discloses an averment that the notice of action had been served onthe Commissioner, even if one were to concede that such notice should havebeen given prior to the action being filed in order to facilitate its maintainability. Itis a question of fact to be ascertained on the evidence as to whether the Notice infact was given though so averred in the plaint. This question was placed beforecourt and the affirmative answer precludes the defendant-appellant as an after-thought to urge this as a question of law.
(iii) At the trial Tenancy was admitted; therefore it can be inferred that he wastherefore the landlord.
The plaintiff-respondent claimed that he became the landlord on the basis ofbeing a life interest holder.
The question in issue was whether the landlord was an owner of not more thanone residential premises which simply meant whether the landlord owned anyhouse or more than one house. A fife interest holder who is the landlord isentitled to maintain an action fdr ejectment even though he or she may notbe the owner of the premises in suit but only the landlord.
APPEAL from the judgment of the District Court of Mount Lavinia.
Cases referred to:
Sulaiman v. Abubaker – 1992 1 SLR 314
Moulana v. Arunasalam – 1988 1 CALR part 2-15
Faiz Musthapa, RC. with Sanjeewa Jayawardena for defendant-appellantRohan Sahabandu for plaintiff-respondent.
Cur. adv. vult.
January 20,1997.
WEERASEKERA J.
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The plaintiff-respondent instituted this action against the defendant-appellant seeking an order for ejectment from the premises in terms ofSection 22(1) (bb) of the Rent Act, 7 of 1972 as amended.
The defendant-appellant denied the plaintiff-respondent’s claimthat the premises were reasonably required for the use of the plaintiff-respondent and stated that the action could not be maintained as theplaintiff-respondent was the owner of more than one house. *
At this appeal President's Counsel urged certain propositions oflaw on behalf of the defendant-appellant. This was objected to by theCounsel for the plaintiff-respondent as not having been urged in thepetition of appeal, and taken up for the first time before this forum. Itis now accepted law that it can be so done for many reasons and inmy view is for the special reason in that no person shall bedissatisfied having urged for justice unless a full and fair hearing wasgiven to him. I therefore propose to examine the three questions oflaw that were urged on behalf of the defendant-appellant.
The three questions of law as formulated by the Counsel for thedefendant-appellant are as follows:-
The action filed by the plaintiff-respondent in the District Courtwas bad in law and the validity thereof vitiated by her failure toaver in the plaint that she did not own more than one house. .
The plaintiff-respondent had failed to furnish the required noticeto the Commissioner of National Housing prior to instituting actionagainst the defendant-appellant which failure also vitiated thevalidity of the action.
In any event the plaintiff-respondent had only a life interest andtherefore could not maintain an action on the basis of reasonablerequirement.
I propose to consider proposition of law No. 3 first.
In the pleadings the plaintiff-respondent alleged that she was thelandlord and the defendant-appellant was the tenant. At the trialtenancy was admitted. It can be safely inferred that the plaintiff-respondent was therefore the landlord. The plaintiff-respondentclaimed that he became the landlord on the basis of being a lifeInterest Holder.
Section 22(1 A) of the Rent Act, No. 7 of 72 as amended reads asfollows:-
Section 22(1 A):-•
"Notwithstanding anything in subsection 1, the landlord of anypremises referred to in paragraph (bb) of that sub-section shall
not be entitled to institute any action or proceedings for theejectment of the tenant of such premises on the ground that suchpremises are required for occupation as a residence for himselfor any member of his family if such landlord is the owner of morethan one residential premises and
What is conceived of in that section is the filing of an action by the'Landlord’. The word landlord has been qualified to mean a landlordwho is not an owner of more than one residential premises1’. The word'Landlord’ has been defined in the Act as follows:-
"Landlord in relation to any premises means the person for thetime being entitled to receive the rent of such premises andincludes any tenant who let premises or any part thereof to anysub-tenant”
In this instance therefore on the admitted facts the plaintiff-respondent is the landlord and a person permitted by Section 21(1 A)to be entitled to maintain an action subject of course the barcontained therein namely that such landlord should own no house orown not more than one residential premises. It is presumable on acorrect application of the legal position the defendant-appellant wasadvised to raise issue No. 6 at the time which read as follows:- Is theplaintiff the owner of more than one residential premises. The answerto it was in the negative. This adjudication on the facts have not beensought to be assailed in appeal. The ownership of the premises insuit was not the determinable question of being a bar to themaintainability of the action. The question in issue was whether thelandlord was an owner of not more than one residential premiseswhich simply meant whether the landlord owned any house or morethan one house. A life interest holder who is the landlord, is thereforeentitled to maintain an action for ejectment even though he or shemay not be the owner of the premises in suit but only the landlord. Iam supported in my thinking by the descion in the caseSulaiman v. Abubakerm and the decision in the case Moulana v.Aruna$alamm.
In regard to the first question urged on behalf of the defendant-appellant the Sinhala version of the plaint in para 6 (gj) avers asfollows:- "otM®BCxQ do ©xaSeoaxase 00) ©xaSCoo eats"
It was urged by the Counsel for defendant-appellant that theaverment in order to comply with settled law should read as follows:-“ o@e sseoo g@od0 oemd asoo gSfioO «s»®kb. ”
I do accept the legal proposition that in order to invoke theprovisions of Section 22(1 A) of the Rent Act, No. 7 of 1972 twoessential requisites should be possessed by the person seekingrelief. That is, (i) that the person claiming relief should be the landlordwho owns no house or not more than one residential house and (ii)has caused notice of the action to be served on the Commissioner ofNational Housing. These two matters therefore have to be pleaded.
In this action the Sinhala pleadings in paragraph 6 (gc) of the plaintcannot give any other meaning than that the plaintiff owns not morethan one house. This is complying with one part of the legalrequirement. Even if one finds the language academically andgrammatically wanting I have no doubt as to what the plaintiff-respondent understood it to mean. In any event no issue on thisquestion was raised .at the trial. By issue No. 6 the only questionraised was whether the plaintiff-respondent was the owner of morethan one house. The English translation of the plaint dated May 85clearly avers in para 6(d) that – “The plaintiff does not own more thanone residential premises". Even if one were to concede the argumentof the defendant-appellant this is a clear instance where the Maxim“Falsajdemonstratio non nocet" (A false description does not vitiatea document) is applicable and the plaintiff-respondent is entitled to beconsidered to have complied with the requisite rule of pleading bypara 6 (g£) in the Sinhala plaint and para 6(d) of the English translation.
For these reasons I am of the view that para 6(gj) of the Sinhalaplaint and para 6(d) of the English translation are satisfactorycompliance with the law and the plaintiff-respondent was entitled tofile and maintain this action.
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With regard to the second question argued on behalf of thedefendant-appellant regarding notice to the Commissioner of
National Housing I find that issue 3 had in fact been suggested andafter evidence and careful evaluation decided in favour of theplaintiff-respondent. It has not been urged that this finding is notjustified. I am of the view that this finding to issue 3 which is based onthe proper evaluation of the documents and evidence is a correctconclusion. On this aspect the plaint discloses an averment that thenotice of action had been served on the Commissioner of NationalHousing. What I understand the defendant-appellant to urge is thatthe notice had not been in actual fact been given prior to theinstitution of the action and therefore bad in law. Even if I were toconcede that such notice should have been given prior to the actionbeing filed in order to facilitate its maintainability, I am of the view thatit is a question of fact to be ascertained the evidence as to whethernotice was in fact given though so averred in the plaint. This questionwas placed before Court by issue No. 3 and the affirmative answer inmy view now precludes the defendant-appellant as an afterthought tourge this as a question of law.
For these reasons I am of the opinion that there is no merit in thethree propositions of law that have been urged by the defendant-appellant.
I do not propose to interfere with the judgment of the learnedDistrict Judge except to comment that I am satisfied that he hasaddressed his mind to questions placed before him and decidedcorrectly in favour of the plaintiff-respondent.
The appeal is dismissed with taxed costs payable by theappellant to the respondent.•
WIGNESWARAN, J. -1 agree.
Appeal dismissed.