039-NLR-NLR-V-63-K.P.-KALIAPPA-PILLAI-Petitioner-and-M.-S.-M.-CASSIM-and-another-Respondents.pdf
T. S. FERNANDO, J.—Kaliappa Pitta* V. Gas sin*
199
1961Present: T. S. Fernando, J., and Slnnetamby, J.K.P. KALIAPPA P1LLAI, Petitioner, and M. S. M. CASSIM and
another, Respondents
S. C. 288 of 1960—In the matter of an Application for Conditional Leaveto appeal to the Privy Council in S. C. 679jD. C. Colombo, 36600/M
Privy Council—Monthly tenancy under Rent Restriction Act—Order of ejectmententered by Court against tenant—Right of tenant to appeal to Privy Council—“ Matter in dispute ”—Appeals (Privy Council) Ordinance {Cap. 85), Schedule,Rule 1 (o).
Where, in a rent and ejectment action in respect of premises subject to theoperation of the Rent Restriction Act, the tenant, whose ejectment was ordered,sought to appeal to the Privy Council as of right under Rule 1 (a) of the Rulesin the Schedule to the Appeals (Privy Council) Ordinance—
Held, that, in such a case, it is the value of the property, not the value of theclaim or question, which is the determining factor.
Application for conditional leave to appeal to the Privy Council.H. V. Perera, Q.C., with S. Sharvananda, for the petitioner.
H. A. Koattegoda, with S. Mohamed, for the 1st respondent.
Cur. adv. wit.
July 24, 1961. T. S. Fernando, J.—
This is an application for conditional leave to appeal to Her Majesty inCouncil by a tenant in a rent and ejectment action who has been suedsuccessfully by his landlord and whose ejectment has been ordered by ajudgment of the Supreme Court delivered on 3rd June 1960.
It is common ground that the premises from which the petitionerhas been ordered to be ejected are subject to the operation of the RentRestriction Act, 1948, and that the monthly rental thereof is Rs. 210/83.
The application is being made on the basis that an appeal lies as ofright in terms of Rule 1 (a) of the Rules in the Schedule to The Appeals{Privy Council) Ordinance (Cap. 85). It is being resisted by the landlord
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T. S. FERNANDO, J.—Kaliappa Pillai v. Gassim
who contends that the matter in dispute on the appeal is not of thevalue of five thousand rupees and that the appeal does not involvedirectly or indirectly some claim or question to or respecting propertyof that value.
In support of the application reliance is placed on two decisions of thePrivy Council. The first of these is the case of Lipshitz v. Valero 1 wherethe Judicial Committee had to consider the interpretation of Article 3 (a)of the Palestine (Appeal to Privy Council) Order in Council, 1924, whichis on all material points similar to Rule 1 of our Schedule Rules, exceptthat the specified value there is £500. The respondent in that caseclaimed an order for possession of land which he had leased to the appellanton a monthly tenancy at a rent of £13.500 a month, and on which theappellant had erected a building at a cost of £450. The appellant pleaded,inter alia, that the action was contrary to the provisions of the RentRestrictions (Business Premises) Ordinance of Palestine. The respondentbeing successful in the Supreme Court, the appellant applied for andobtained from the Supreme Court leave to appeal to the Privy Council,the Supreme Court holding that the tenancy right amounted in valueto at least £50 and the value of the building to £450. On an objectionby the respondent that the Privy Council had no jurisdiction to entertainthe appeal on the grounds that all that was in dispute was the appellant’sright to occupy a small piece of land, and that the value of the buildingdid not enter into the value of “ the matter in dispute ”, the JudicialCommittee held that the Supreme Court had applied the right test underArticle 3 which was whether it was worth £500 to the appellant that theRent Restrictions (Business Premises) Ordinance should be held to givehim protection against an order to vacate the land leaving on it a buildingwhich cost £450 to erect.
The other case relied on by the petitioner is that of Meghji Lakhamshiand Brothers v. Furniture Workshop2 also a decision of the JudicialCommittee interpreting a similar article to be found in the EasternAfrican (Appeal to Privy Council) Order in Council, 1951. Lord Tucker,delivering the opinion of the Committee, stated that “ on the trueconstruction (of the Article) it is the value of the property, not the valueof the claim or question, which is the determining factor ”. This wasa case where leave to appeal had been sought by a landlord, and TheirLordships went on to say that “ looked at from the angle of the landlords,the value of the property, vacant possession of which they were claiming,was correctly taken on a capital value basis ”. They did go on to say,however, that “ it by no means necessarily follows that the result wouldhave been the same if the tenants had been the appellants ”, and referredto certain decisions of the Court of Appeal for Eastern Africa whichunfortunately are not available to us here for reference. Had therebeen no expression of opinion by the Privy Council on the point inquestion, I would myself have been inclined to favour the opinion that *
1 (1948) A. C. 1.
* (1954) A. G. 80.
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^T. S. FERNANDO, J.—Kaliappa PiUaiv. Casaim
it is the value of the claim or question and not the value of the propertythat is material, I must add that in support of his application thepetitioner has put forward an affidavit in which he declares that thepremises in suit are worth Rs. 35,000 and values his occupancy rightat more than Rs. 5,000/—. The landlord who has had notice of thetendering of this affidavit has not attempted to contest by counter affidavitthis declaration as to the value of the occupancy right. His counselreferred us to the decision of this Court in Subbiah Pillai v. Fernando?where it was held that in an action between landlord and tenant, theright to possession of the premises in question must, for the purpose ofvaluing the matter in dispute in an application for conditional leave toappeal to the Privy Council, be valued at the rental reserved by thecontract of tenancy. I feel bound to add that that case came to bedecided without the complication we meet with here of the statutoryprotection afforded to a tenant by the Rent Restriction Act.
This application is said to be the first of its kind where a tenant ofpremises to which the Rent Restriction Act applies and which wereoccupied by him on a monthly tenancy at a rental which is below thevalue specified in Rule 1 (a) of the Schedule Rules is seeking leave toappeal to Her Majesty in Council against an order of ejectment. Mybrother and I felt that, if the application is successful, it is reasonableto anticipate that there will be many more similar applications. Thatconsideration combined with our view that the interpretation of therelevant limb of Rule 1 (a) is not free from doubt or difficulty led us tomake, on January 5, 1961, a direction that this application be submittedto His Lordship, the Chief Justice, in terms of Section 51 of the CourtsOrdinance to consider the assembling of a fuller Court to decide thequestion of law that arises here. The Registrar has since brought toour notice a minute made by His Lordship, the Chief Justice, on June 2,1961 which indicates that he does not propose to exercise his powersunder Section 51 in this instance as “ there is neither a difference ofopinion among the Judges who heard this case nor a conflict of decisionsof the Supreme Court ”. It therefore becomes necessary that we shouldnow deliver our order on the application for conditional leave as counselhave intimated that they have no further arguments to adduce.
We consider that in the state of the facts before us on the presentapplication we should apply the decision in Meghji LakhamshVs Case(supra) that it is the value of the property, not the value of the claimor question, which is the determining factor. Moreover, the petitionerclaims leave under both limbs of Rule 1 (a), and his affidavit whichdeclares that his right to occupation of the premises as a protectedtenant is worth more than Rs. 5,000/— stands uncontradicted. In thesecircumstances I would grant the application on the-usual conditions.
The petitioner is entitled to the costs of this application.
SnsnsrETAMBY, J.—I agree.
1 (1950) 52 N. L. R. 217.
Application allowed.