106-NLR-NLR-V-49-KANNANGARA-Appellant-and-DAVID-Respondent.pdf
Kannangara v. David
348
1948Present: Basnayake J.KANNANGARA, Appellant, and DAVID, Respondent.S. C. 57— C. R. Colombo, 7,534
Bent Restriction—Landlord temporarily finding other premises—Reasonablerequirement—Section 8 (c), Ordinance No. 60 of 1942.
The fact that a landlord, owing to the refusal of his tenant to give possession,has been able to find temporary accommodation is no ground for holding thatthe premises are not reasonably required by him for his residence. 1
1 Maitland’s Essays, p. 104—Cambridge University Press (1936).
BASNAYAKE J.—Kannangara v. David
349
APPEAL from a judgment of the Commissioner of Requests,Colombo.
H. W. Jayetoardene, with H. Samaranayake, for the plaintiff, appellant.
Vernon Wijetunge, for the defendant, respondent.
May 17, 1948. Basnayake J.—
The plaintiff instituted this action on June 17, 1947, against thedefendant for a decree of ejectment from premises No. 5, Frankfort Place,Colombo, and for damages at Rs. 71*50 per month from May 1 till theplaintiff is placed in possession thereof.
The defendant is an old lady with two unmarried adult sons, both ofwhom are employed, one in the India Corporatipn Ltd., and the other atBoustead Bros. At the date of this aotion she was living in Madras andher sons were occupying the premises in question. The plaintiff is aGovernment servant. He is married and has two children aged 3£ yearsand 2 years respectively.
The plaintiff’s evidence is that he is the owner of premises No. 5, Frank-fort Place, Colombo, and that he gave the premises on rent to the defendantin January, 1946, at a time when he was stationed outside Colombo atthe Walpita Government Farm. He owns no other house in Colombo.On August 1, 1946, he was transferred to Colombo and as he had nowhereto go he managed to get from one Dr. Jayawardena a house at StaffordPlace in Colombo. It was a house which had been requisitioned by theGovernment and had been released at the time. Though not entirelysuitable for occupation the plaintiff obtained it on the understandingthat he would quit it within three months. The plaintiff, before givingformal notice to quit on January 30, 1947, explained to the defendanthis plight. But the defendant refused to quit until she got her own house,No. 15, Dickman’s Lane. Meanwhile Dr. Jayawardena instituted legalproceedings against him. On the advice- of his lawyer he consentedto judgment and asked for time to quit. In view of the plaintiff’sunfortunate position, Dr. Jayawardena has agreed to withhold executionof his writ until this action is concluded. It appears that the defendanthas also instituted legal proceedings to eject her tenant at No. 15,Dickman’s Lane. That action is now- pending.
The learned Commissioner has dismissed the plaintiff’s action on theground that the plaintiff has failed to discharge the burden that restson him of proving to his satisfaction that the. premises are reasonablyrequired for his occupation. I find myself unable to agree with the learnedCommissioner.
Section 8 (c) of the Rent Restriction Ordinance, No. 60 of 1942, permitsthe institution of proceedings for the ejectment of the tenant of anypremises to which the Ordinance applies and the entertaining of suchproceedings by a court without the authorisation of the AssessmentBoard in a case where the premises are, in the opinion of the Court,reasonably required for occupation as a residence for the landlord. Inthe present instance the plaintiff knowing that he would not be able toobtain his own house at once, made other provision for his stay in Colombo
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Adonis Fernando v. Livera
pending his recovery of possession of his own house. I do not see howthat fact should affect his right to occupy his house for his own use.It was urged against him that he has consented to judgment being enteredin the action by Dr. Jayawardena. But he says he did so on the adviceof his lawyers, and he cannot be penalised for acting according to theiradvice. Having regard to the circumstances under which he obtainedthe house from Dr. Jayawardena, if the plaintiff had acted otherwise hewould have forfeited the confidence of a person who came to his aidwhen he was badly in need of a house in Colombo. The plaintiff’s conductin consenting to judgment does not in my view affect the reasonablenessof his request for his own house for which he has shown that he has agenuine need. As has been held in the case of Aitken v. Shaw1, the words“ reasonably require ” connote something more than desire althoughsomething much less than absolute necessity. The landlord must, as inthe present case, have a genuine need for the house for his own occupation.
The case of Nevile v. Hardy 2 supports the view that the fact that thelandlord, owing to the refusal of the tenant to give possession, has had toobtain other premises where he is temporarily residing at the time of thehearing of the action, is no reason for holding that the dwelling house isnot then reasonably required by the landlord as a residence for himself.In that case Peterson J. observes at page 408 :—
“ In the present case the plaintiff desired the upper floors as a residencefor herself, but finding that she could not get them she hastaken other premises for her residence, but I do not think thatthe fact that she is at present living elsewhere is any reasonfor holding that the dwelling house is not reasonably requiredby her as a residence for herself or for persons in herwhole-time employment. The evidence is that if she couldobtain possession of these upper floors she would use them forthe occupation of herself and her staff, and in those circumstancesI cannot say that they are not reasonably required by her.”
I set aside the judgment of the learned Commissioner and enterjudgment for the plaintiff as prayed for with costs of both this appealand the trial. The defendant is entitled to receive credit in the sum ofRs. 65 in deposit with the plaintiff.
Appeal allowed.