105-NLR-NLR-V-02-JUANIS-et-al.-v.-DISSANAIKE-et-al.pdf
( 244 )
1896.
November 4and 11, '
JUANIS et al. v. DISSAHAIKE et al.
D. G., Mdtara, 1,334.
Landlord and ’tenant—Liability oj outgoing tenant to the incoming tenantfor waste on land leased.
Per Lawbie, J.—As a general rule an incoming tenant has noright of action against the outgoing tenant for damages for wastecommitted by the latter on the land leased. He must look to hislandlord to put him in possession of the land leased in such order, ashe and the landlord agreed on. If, however, the outgoing tenanthas acted contrary to local custom, facts admitted or proved in acase may disclose liability in him to the incoming tenant.
Per Withers, J.—Where the incoming tenant has entered intopossession of the leased premises and has not withheld from thelandlord so much of the stipulated rent as made up for the allegedwaste, and has instituted proceedings against the landlord to. recover damages for delivering to him the premises in a waste 1 con-dition, he has a right of action against the outgoing tenant, but it Uincumbent on him to prove that the latter committed the actsimputed to him, that the acts were unlawful, and that they have’injured the reversion he has leased.
( 245 )
T
HE facts of the case sufficiently appear in the judgments.*®06-
November 4andli.
Domhorst, for appellants.-—-
Wendt, for respondents.
11th November, 1890. Lawbee, J.—
The plaintiffs allege that they, on the 2nd November, 1894,took a lease of a garden, with entry on the 1st January, 1895;that the defendants, the tenants then in occupation, after theexpiration of the plaintiffs' lease and before the term of their occu-. pation commenced, unlawfully and maliciously and contrary to theterms of their lease and to the local custom, plucked half-ripe,unripe, and tender fruits, and damaged the flowers *of the trees ofthe garden, and causedgreat damage, to wit, Rs: 500.
The defendants pleaded that no cause of action was disclosedagainst them.
The Distriot Judge sustained that plea and dismissed the action,and hence this appeal.
I am of opinion that it is necessary that the Court should have allthe facts admitted or. proved before it can decide whether thedefendants are or are not liable in damages to the plaintiffs. It is' necessary that there should be evidence as to the local custom.
There is no privity of contract between the plaintiffs and thedefendants, but the principle sic wtere tuo vi cdienum non Icedasapplies.
Did the defendants so deal with the garden during the last twomonths of their lease as to injure the rights of those who lawfullysucceed them in occupation ?
Whether the plaintiffs’ rights were unlawfully damaged will,
.1 think, depend upon whether the defendants acted contrary tothe local custom.
I cannot say that as a general rule an incoming tenant has anaction against the outgoing tenant for damages for waste, or if theland and houses be r<-left in good order and repair.
As a general rule I would say that the incoming tenant mustlook to his landlord to put him in possession of the subject let insuch order as the new tenant and the landlord had agreed on.
In the great majority of cases I should say that the landlord isthe proper plaintiff to recover damages for waste committed byhis tenant. I am not sure that the landlord can assign his right tothese d&mages, so as to put the incoming tenant in a position to sue.
I notice that the plaintiffs here allege that the outgoing tenants’duty, with regard to the state in which they were to leave thegarden, was fixed by the lease ; if this be so the landlord with
i&M.
November 4and 11.
Lawrxe, J.
V
( 246 )
whom the contract was made is the only party who can sue for abreach of it.
I feel the danger of exposing outgoing tenants to two actionsfor the same wrong, an action by the landlord and another by thesucceeding tenants.
Before deciding that these plaintiffs cannot recover damages theCourt must know the facts and the custom : it will then be able todetermine to whom the wrong was done.
I would set aside the dismissal of the action and remit for trial.The appellants are entitled to the costs of this appeal.
Withers, J.—
On the 21st November, 1894, the owner of certain premises signeda contract of lease with the plaintiffs for a term of two years, totake effect from the 1st January, 1895.
The defendants, of whom the first and second held the premisesunder a lease from the owner, which expired on the 31st December,1894, unlawfully and contrary to the terms of the lease to-the firsttwo defendants, plucked between the 21st November and the 31stDecember, 1894, half-ripe, unripe, and tender fruits, and further. damaged the flowers of the trees of the said garden. It is furtheralleged that by such unlawful acts the value of the said leaseholdpremises was depreciated to the plaintiffs’ damage in an amountestimated at Rs. 500.
On this question of law the Judge has decided against the plaintiffs.Two decisions were eited to him. The earlier decision is reported atpage 8 of Ramanathan’s Reports for 1863. That case is exactly inpoint. I have referred to the Supreme Court Minutes, and it appearsthat three Judges sat at the hearing of that case in appeal, SirEdward Creasy, Chief Justice, presiding. The ground of thatdecision I understand to be this. There was no privity of contractbetween the outgoing and the incoming tenant, but the waste ofthe premises, which the incoming tenant had a right to expect to bedelivered to him in. an unwasted condition, amounted to a delictcommitted by the outgoing tenant to the injury of the incomingtenant.
It was urged in argument that such waste would be an injury‘tothe landlord, and that it would be competent to him to recoverdamages for the abuse of his property.
It was further argued that he had the sole right of action for suchdamages, and that he had not assigned those rights to his new'lessees.
But it may I think be argued that it was an injury to the land-lord’s reversion, and this he had parted with for a term to his newlessees.
r )The landlord, if his rent is paid him by the old and new lessees, isnot injured at all. Are not the new lessees bound to pay him hisrent if they accept the lease and enter into enjoyment of thepremises ?
Have they any other remedy than a claim against the landlordfor depreciation of the premises leased to them in a wasted con-dition ? Does not a course here adopted avoid a cirouity of action ?It certainly does. And are nqt the new lessees, as a matter of fact,injured by the waste committed by the old lessees ? They certainlyare.-
The decision of this Court above referred to is consistent withequity, and as it has not been shown to be contrary to law I thinkwe ought to follow it. .
The Judge has preferred to follow a decision of Mr. JusticeClarence, which is not reported, but which is to be found in theMinutes of this Court. It is dated 8th July, 1890, and was pro-nounced in appeal from a Court of Bequests, Matara, case No. 153.This is the judgment:—
“ I am reluctantly compelled to set aside this judgment, what-“ ever .rights of action the plaintiff lessor may have against this“ defendant. Plaintiff himself has none in respect of these acts“ done before his lease came into play.”
I have had this case sent for, and I find that it is on all fourswith this case and the earlier decision of this Court.
The earlier decision was not brought to the attention of Mr.Justice Clarence. As this learned Judge gave a reluctant decisionin the opposite sense, I have the less hesitation in pronouncing forthe former decision.
I observed above .that the plaintiffs have suffered injury by thealleged acts of the defendants. They have only, if they enteredinto possession of the leased premises under their contract andhave not withheld from the landlord so much of the stipulated rentas will make up for the alleged waste, or have not instituted pro-ceedings against him, to recover damages for the premises beingdelivered to them in a wasted condition.
It is incumbent on the plaintiffs to prove that the defendantscommitted the acts imputed to them, that the acts.were unlawful,and that the acts have injured the reversion which they have leased.
They will also have to prove to what extent the reversion leasedto them has been injured. The case, then, will go back with adeclaration that the plaintiffs are entitled to recover compensationin money for the injury sustained t<p the reversion which they haveleased if the injurious acts are found to be unlawful as alleged.
The appellants are-entitled to their costs in appeal and the costsof the trial of the issue of law found in their favour.
189 A
November 4and !!•
Withers, J.