KANTHASAMY V. GNANASEKERAM AND ANOTHER

001-SLLR-SLLR-1983-2-KANTHASAMY-V.-GNANASEKERAM-AND-ANOTHER.pdf


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Kanthasamy v. Gnanasekeram and Another
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KANTHASAMY
V.
GNANASEKERAM AND ANOTHER
SUPREME COURT
WIMALARATNE. J.. VICTOR PERERA. J.. AND COLIN THOME. J.
S.C. APPEAL NO. 60/82; C.A. APPEAL NO. 629/79(F): D.C. COLOMBOCASE NO. 2896/RE.
MAY 4 AND 5. 1983.
Landlord and tenant — Ejectment of tenant — Denial of tenancy — Whetherpremises reasonably required – Section 22 of the Rent Act. No. 7 of 1972.
The Plaintiffs-Respondents. landlords of premises No. 115. Rosmead Place.Colombo 7. duly filed this action to terminate the tenancy of the Defendant-Appellant. The Defendant-Appellant filed answer admitting his residence in partof the said premises but denying his occupation stating that he had been payingrent as an agent of Sittampalam and not as the tenant of the saidPlaintiffs-Respondents.
Issues that have arisen are. (1) is the defendant the tenant of the premises in suit ?
in denying the tenancy, is the defendant acting in collusion with Sittampalam?
(a) is the plaintiff entitled for a writ of ejectment against the defendant ? (b)what damages is the plaintiff entitled to ? (4) are the said premises reasonablyrequired for the use and occupation of the plaintiffs as their residence ? (5) ifissue 4 is answered in the negative, are the plaintiffs entitled to the relief prayedfor in the plaint ? (6) even if the premises are not required by the plaintiffs fortheir residence and if issue 1 is answered in the affirmative as the defendantdenies tenancy are the plaintiffs entitled to judgment as prayed for ? (7) if issue1 is answered in the affirmative and issue 4 in the negative, can the plaintiffshave and maintain this action ?
The District Judge, held that the Defendant-Appellant was the tenant and wasliable to be ejected. He also held that the Plaintiffs-Respondents were entitled toan order of ejectment on the ground of reasonable requirement as well, thoughthis was not a claim which appears to have been persisted on by the Plaintiffs-Respondents at the trial. The Court of Appeal has failed to make a criticalanalysis of the meagre evidence on which the District Judge had come to thefinding that the Plaintiffs-Respondents reasonably required the said premises fortheir use and occupation as a residence. However, it also has held that theDistrict Judge's decision on this was correct.
Held —
The District Judge came to a correct finding that the Plaintiffs-Respondents wereentitled to the order for the ejectment of the Defendant-Appellant on the basis ofthe Defendant-Appellant's own conduct.
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Cases referred to:
DeAlwis v. Perera (1951) 52 N.L.R. 432 at page 444.
Maroof v. Leaff (1944) 46 N.L.R. 25.
Hameed v. Annama/ay (1946) 47 N.L.R. 558
Cassini Hadjiar v. Umamlebbe & another (1963) 67 N.L.R. 22
Edirisinghe v. Patel 1(1979 — (1) N.L.R. 217
Muthu Natchia v. Pathuma Natchia (1895) 1 N.L.R. 21.
APPEAL from an order of the Court of Appeal.
H. L. de Silva. Senior Attorney-at-Law. with S. C. Crossette Thambiah andK. Thewarajah for Defendant-Appellant.
Eric Amerasinghe. Senior Attorney-at-Law. with P. A. D. Samarasekera, VarunaBasnayake and Miss D. Guniyangoda for the Plaintiffs-Respondents.
Cur. adv. vult
JUNE 16, 1983VICTOR PERERA, J.
The Plaintiffs-Repondents are admittedly the landlords ofpremises No. 11 5, Rosmead Place, Colombo 7, in respect ofwhich they had filed this action on the 5th July 1 978 to have theDefendant-Appellant ejected. The Plaintiffs-Respondents averredthat they had let the said premises to the defendant-appellant ona monthly tenancy on a monthly rental of Rs. 675/1 2. that theyhad terminated the tenancy on 31st July 1977 by giving oneyear's notice in July 1976 and that the Defendant-Appellantcontinued in wrongful occupation of the premises after thetermination of the tenancy. The Plaintiffs-Respondents hadpleaded in their plaint that the premises were reasonablyrequired for their use and occupation as a residence and thatthey had therefore given the Defendant-Appellant one year'snotice in writing of the termination of the tenancy.
It was clearly established from the oral evidence in the case,namely that of S. Gnanasekeram, the father of the Plaintiffs-
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Respondents, that he was the original landlord of the premisesand that the Defendant-Appellant was the tenant. He hadsometime after 1972 conveyed the premises to the Plaintiffs-Respondents. The Piaintiffs-Respondents by their jointdeclaration dated 17th May 1976 made under Section 37 of theRent Act No. 7 of 1972 claimed to be the landlords of the saidpremises (P9) stating tht the defendant-appellant was the tenant.An identical copy of this document was produced from theDefendant-Appellant's custody marked P10. From the evidence itwould appear that the said S. Gnanasekeram had made anapplication to the Rent Control Board of Colombo dated 10.5.72-(P2) to have a determination of the authorised rent for the saidpremises. This application had ultimately come for inquiry onlyon the 17th June 1974 and at the inquiry (P33) S. Gnanase-keram as applicant and the defendant-appellant as respondentwere present. The said S. Gnanasekeram on that date moved towithdraw his application as he stated that he had alreadyascertained the authorised rent. The Defendant-Appellant,however, wanted it recorded that he was not the tenant of thepremises and that the tenant of the premises was oneSittampalam. The Defendant-Appellant had no objection to thewithdrawal of the application.
Thereafter the Defendant-Appellant having so categoricallytaken up this position continued to forward cheques P1 6 to P20as the rent to the said S. Gnanasekeram from 25th June 1974 toJune 1977, However, the Defendant-Appellant continued toforward the rents to the landlord who according to him was nothis own landlord. The Piaintiffs-Respondents when they becamethe landlords duly sent a notice dated July 1976 terminating thetenancy of the defendant-appellant from 31st July 1977. Theplaint in this action was filed one year later, that is July 1978.When the Defendant-Appellant filed answer in July 1979 he re-iterated this position that he was not the tenant and that the rentshe had remitted were “as an agent of Sittampalam". He furtherpleaded that he resided only in a part of the premises and that hehad been paying rent as agent of Sittampalam.
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The answer of the Defendant-Appellant filed on 9th July 1979in this action while admitting his residence in the said premisesdenied his occupation as the tenant. In the following paragraphsof his answer he categorically pleaded
"(3) The defendant states that S. Sittampalam has been andis the tenant of the premises referred to in paragraph 2 ofthe plaint. The defendant resides in a part of the premises
with the leave and licence of the said Sittampalam.
Answering paragraph 3 of the plaint the defendantadmits he received the notice to quit but denies that thesaid notice to quit has terminated the contract of tenancybetween the said Sittampalam and the plaintiff.
Answering paragraph 6 of the plaint the defendantstates that the said Sittampalam either directly or by hisagent the defendant has paid all rents due right up to date.
(8) The defendant states that at all time the plaintiffs wereaware that Sittampalam has been and is the tenant of thepremises.
The Defendant-Appellant did not claim any benefits for himselfunder the Rent Act No. 7 of 1 972 and only prayed for dismissalof the action.
In that state of the pleadings it is clear that the plaintiffs-respondents sought to have the Defendant-Appellant his tenantejected from the premises on the basis of the averments in theanswer. The Defendant-Appellant disclaimed tenancy andpleaded specifically that he was occupying only a portion of thepremises as a licensee of another. When the matter ultimatelycame up for trial on the 19th October 1979, Mr. C. ThiagalingamQ.C. Senior Counsel for the Plaintiffs-Respondents raised thefollowing issues arising on the pleadings
Is the defendant the tenant of the premises in suit ?
In denying the tenancy, is the defendant acting incollusion with Sittampalam ?
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a. Is the plaintiff entitled to a writ of ejectment againstthe defendant ?
b. What damages is the plaintiff entitled to ?
There was no objection by the Defendant-Appellant's Counselto these issues which were clearly confined to the tenancy, thedenial of tenancy, and the right of ejectment and damages basedon the Defendant-Appellant's repudiation of the tenancy whichdid not arise as such on his plaint. Apparently he had abandonedthe plea of reasonable requirement which would arise if theDefendant-Appellant claimed to be the actual tenant. Counsel forthe Plaintiffs-Respondents did not therefore quite correctly put inissue their rights to have the Defendant-Appellant ejected on theground that they reasonably required these premises for theirresidence.
Mr. Navaratnarajah. Q.C., who appeared for the Defendant-Appellant. however, raised the following issues :—
Are the said premises reasonably required for the useand occupation of the Plaintiffs as their residence ?
If issue 4 is answered in the negative, are the Plaintiffsentitled to the relief prayed for in the Plaint ?
Thereupon Mr. Thiagalingam. Q.C. raised the following issue
Even if the premises are not required by the Plaintiffs fortheir residence and if issue 1 is answered in the affirmative,as the defendant denies tenancy are the plaintiffs entitled tojudgment as prayed for ?
Mr. Navaratnarajah. Q.C. raised the additional issue
If issue 1 is answered in the affirmative and issue 4 inthe negative, can the plaintiffs have and maintain thisaction?
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Thereafter Mr. Thiagalingam, Q.C.. called as his witnesses anOfficer from the Municipal Council and Mr. S. Gnanasekeram,the Plaintiffs-Respondents' father. Learned Queen's Counsel forthe Defendant-Appellant elicited from this second witness incross-examination that in 1972 Sittampalam was living in thepremises and that at some later stage the Defendant-Appellantwas a boarder in that house under one Upali Silva who hadbecome related to Sittampalam through marriage. This showedclearly that the Defendant-Appellant persisted in his claim that heresided in a part of the premises (as stated in his answer) as alicensee of Sittampalam and that he repudiated any claim to bethe tenant or any rights of tenancy in himself.
The Defendant-Appellant did not give evidence at all butapparently stood by the averments of facts pleaded in his answer.The cross-examination of the Plaintiffs-Respondents' witnessshows an attempt to establish that though the Defendant-Appellant remitted the rent, he was not the actual tenant. TheDefendant-Appellant did not claim any rights for himself astenant nor did he claim any protection for himself under the RentAct. However, his entire defence on the pleadings and during theconduct of the trial was that though he was residing in a part ofthe premises he was only the agent of one Sittampalam thetenant.
The learned District Judge on the evidence could not havecome to any other conclusion than that the Defendant-Appellanthad been regarded as the tenant of the Plaintiffs-Respondents.having remitted rents by cheques first to Gnanasekeram and laterto the 1 st Plaintiff-Respondent. The District Judge on the basis ofthe Defendant-Appellant paying the rents to the Plaintiffs-Respondents and on the averments in the plaint and theevidence of Gnanasekeram. answered issue 1 in the affirmative,namely that the Defendant-Appellant was the tenant. The learnedDistrict Judge, however, on the basis of the Defendant-Appellant's answer held that the Defendant-Appellant vyas liableto be ejected and he therefore answered issue 3 and issue 6 alsoin the affirmative. The learned District Judge, however, answeredissue 4 raised by the Defendant-Appellant also in the affirmative,namely that the Plaintiffs-Respondents were entitled to an order of
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ejectment on the ground of reasonable requirement as well,though this was not a claim which appears to have beenpersisted on by the plaintiffs-respondents at the trial. Accordinglyhe entered judgment for the Plaintiffs-Respondents for ejectmentof the Defendant-Appellant, damages and costs.
The Defendant-Appellant thereupon filed an appeal in theCourt of Appeal. At the argument before the Court of Appeal.Senior Counsel for the Defendant-Appellant had stated that hewas not canvassing the finding of the District Judge that theDefendant-Appellant was a tenant but that he was contesting theanswer to issue 4, namely that the premises were reasonablyrequired for the Plaintiffs-Respondents' use and occupation.
The Plaintiffs-Respondents did not lead any substantialevidence that the Plaintiffs-Respondents reasonably required thepremises for their residence. The evidence of the Plaintiffs-Respondents’ father was that the two plaintiffs had left thecountry, one was living in Saudi Arabia and the other in England.The only evidence on this issue is the following answer by thiswitness :—
"They tried to get this property and they wanted to live inthere; being frustrated they left the Island for a shortperiod".
The learned District Judge could not on this evidencejustifiably form an opinion that the premises were reasonablyrequired for the occupation as a residence for the landlord asrequired by Section 22(2)(c) of the Rent Act.
The Court of Appeal held that on a consideration of thematters urged before him the District Judge was correct in hisfinding that the Plaintiffs-Respondents reasonably required thesaid premises for their use and occupation as a residence, andadded that "in this view of the matter the interesting but notaltogether easy question whether a defendant who denied atenancy in his answer is entitled to plead the benefits of the RentAct, does not arise for consideration". The Court of Appeal hasfailed to make a critical analysis of the meagre evidence on
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which the District Judge had come to this finding and I thereforedo not agree with this finding by the Court of Appeal, ft has to beappreciated that the Plaintiffs-Respondents had not raised orrelied on this issue the burden of proving which would havefallen heavily on them. Senior Counsel for the Plaintiffs-Respondents before us was content to support the DistrictJudge's finding on the other issues and argued that the Plaintiffs-Respondents were entitled to the ejectment of the Defendant-Appellant on the "ground of the denial of the contract of tenancyor a repudiation of the tenancy and the legal consequencesflowing therefrom. He contended that on his own plea theDefendant-Appellant was not entitled to the protection of theRent Act as he was not a "tenant" within the meaning of the RentAct.
In the Rent Act No. 7 of 1972 and all previous legislationdealing with rent restriction, the term "tenant" was never defined.However, the term "landlord" in relation to any premises wasdefined to mean the person for the time being entitled to receivethe rent of such premises. On the basis of this definition all theevidence adduced proved conclusively that the plaintiffs-respondents were the undisputed 'landlords'. On the question asto who was the 'tenant' the Plaintiffs-Respondents alleged andadduced evidence to satisfy the District Judge that they regardedthe Defendant-Appellant who was remitting the rents as theirtenant. Whilst so remitting rents the Defendant-Appellant neverstated that he was doing so as the agent of Sittampalam. TheDefendant-Appellent, however, notwithstanding any advantagesor rights he may have claimed as a common law tenant or as atenant protected by the Rent Act, categorically and inunambiguous terms asserted that he was not the actual tenant.He stated he was in occupation of only a portion of the saidpremises and that also only as a licensee of one Sittampalamwho he asserted was always and is the tenant and that he hadbeen remitting the monthly rents as an agent of Sittampalam.The Defendant-Appellant therefore did not even admit that thePlaintiffs-Respondents were his landlords, but that they wereSittampalam's landlords.
Under the common law of landlord and tenant, such a personif he was not the actual tenant could not be regarded
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as the tenant. It is necessary to examine the status every landlordmust necessarily enjoy before the common law can recognise hisright to claim ejectment in the proceedings against his actualtenant. The essential pre-requisite to his cause of action qualandlord is that a privity of contract exists between himself andthe tenant in occupation, and the pre-requisite to a defence thata tenant can set up against his landlord is again the same privityof contract existing at the date of action. In this case thedefendant-appellant, who was regarded as the tenant by hisoccupation of the premises and by his remitting the rent, deniedthat there was ever any privity of contract between him and thePlaintiffs-Respondents. While the Plaintiffs-Respondents actedon this presumption that the Defendant-Appellant was theirtenant, the Defendant-Appellant denied any contract of tenancyand repudiated even such a presumption of tenancy.
The Plaintiffs-Respondents filed this action seeking to eject theDefendant-Appellant, who they alleged was their tenant, on oneof the grounds the existence of which they had to satisfy Court,namely, that the premises were reasonably required for their useand occupation as a residence. Section 22 of the Rent Act No. 7of 1972 clearly provided that the Court could order theejectment of a tenant at the instance of the landlord if the Courthad sufficient evidence placed before it to form the opinion thatthe pemises are so required. It was argued by Senior Counsel forthe Defendant-Appellant that there was a complete bar to suchan action being instituted in Court or entertained by Court andthat therefore the court lacked jurisdiction to make any order inthis case.
The answer to this contention is found in the judgment ofGratiaen, J. in DeAlwis v. Perera (1) :—
"It is important to bear in mind in considering this questionthat section 8 of the Rent Restriction Ordinance of 1942and section 13 of the Act of 1 948 which superseded itwere not designed to vest in Courts of Law some newjurisdiction affecting the rights and obligations of landlordsand tenants in actions for ejectment. (Maroof v. Leaff (2)P.On the contrary as Keuneman J. points out. they 'merelyimpose a curb or fetter on the existing jurisdiction'
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to grant relief to a landlord who seeks, in the enforcementof his contractual rights under the common law. a decreefor the ejectment of his tenant from the premises in thelatter's occupation. The sections must therefore be regardedas pre-supposing that a cause of action would have accruedunder the common law entitling the landlord to claim adecree for ejectment. If, therefore, no such cause of actionexists either by reason of a termination of the tenancy bynotice or effluxion of time, or for any other grounds whichnormally justify proceedings by a landlord for ejectment, thecourt would possess no jurisdiction to grant the landlordrelief. In'that event, no occasion arises for applying anyfetters on a jurisdiction which already does not exist. If,therefore, the question be approached in relation to therights of landlords under the common law, it seems to me,with great respect, that certain difficulties visualised in thejudgment in Hameed v. Annamalay (3) would be found todisappear".
Viewed in this way, the Court has to entertain such an action ifthe required averments necessary for the Court to exercise itsjurisdiction are made in the plaint and the Court could order theejectment of a tenant only when such requirements stipulated insection 22 are established. Therefore the Plaintiffs-Respondents'action was properly before Court, as he had an accrued rightunder the common law entitling him to a decree for ejectment onthe termination of the tenancy or any other ground known to thecommon law. However, the provisions of section 22 of the RentAct No. 7 of 1972 imposed a fetter on the Court to grant thelandlord relief by way of ejectment, where there is the actualrelationship of landlord and tenant if there arose an occasion forapplying such a fetter on its jurisdiction which it otherwise had.
In the instant case, the Plaintiffs-Respondents satisfied all therequirements needed for the acceptance of the plaint. But theCourt was absolved from applying any of the fetters enumeratedin section 22 of the Rent Act when the Defendant-Appellant setup his defence in his answer that he was not the tenant. ThePlaintiffs-Respondents thereupon abandoned their plea to havean order of ejectment under Section 22(2) (b) on the ground of
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reasonable requirement, and founded their cause of action forejectment on the averments of fact pleaded by and relied on bythe defendant-appellant in his answer. The Defendant-Appellantpleaded that, before the Rent Control Board of Colombo in June1974 long prior to this action which was filed in July 1979 hehad clearly asserted that he was at no time the tenant of thePlaintiffs-Respondents and that the actual tenant wasSittampalam. The Plaintiffs-Respondents therefore raised issues1 to 3 without an amendment of the plaint and without anyobjection from the Defendant-Appellant and sought an order forejectment against the Defendant-Appellant as a trespasseralthough they had advisedly filed the action on the basis of thealleged tenancy. However, when the defendant-appellant re-iterated this position.so clearly in his answer the Plaintiffs-Respondents confined their claim for his ejectment on thegrounds other than those contemplated by section 22 of theRent Act.
The Defendant-Appellant is now seeking to take advantage ofthe District Judge's answer to issue 1. namely that theDefendant-Appellant was the tenant. It is here that the principlewhich has its basis in common sense and common justice that "aman shall not be allowed to blow hot and cold — to affirm at onetime and deny at another — making a claim on those whom hehad deluded to their disadvantage and founding that claim onthe very matters of the delusion" arises for application, (videSelection of Legal Maxims — Herbert Broom, 8th Edn. 1911.p. 136). A person who has deluded another to act on the basisthat he was the tenant when according to him he was not theactual tenant cannot now get the benefit of that delusion byrelying on the protection afforded by the Rent Act to an actualtenant. The law has recognised only the actual tenant to be astatutory tenant when a landlord seeks to have him ejected. Theprotection of the Rent Act even where the landlord claims tohave terminated the common law contract of tenancy is givenonly to such a tenant. The Defendant-Appellant in this case whodoes not claim to be the actual tenant and has on his own pleaproved himseff to be a trespasser cannot ‘b’e protected.on thebasis of the delusion practised by him on the Plaintiffs-Respondents whom he does not accept as his landlords. The
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learned District Judge has therefore correctly answered issue 3and issue 6 against the Defendant-Appellant though he haserred in his answer to the 4th issue relating to reasonablerequirement, which was' not put in issue by the Plaintiffs-Respondents and on which there was hardly any evidence led.
The question whether the Defendant-Appellant was stillentitled to the protection afforded to an actual tenant wasstrenuously argued. In the case of Cassim Hadjiar v. Umamlebbe& another (4) the question arose whether a tenant who did notaccept his new landlord as his own landlord could be treated asa protected tenant. The legal position that arose in that case wasthat the original landlord had transferred the premises inquestion to the Plaintiff and the Plaintiff had accepted the saidtransfer with the tenants in occupation and the new ownerinformed the tenants of the fact of the transfer and had giventhem a month's notice to quit. He had thereby implicitly acceptedthe position that he was accepting the premises with theDefendants in occupation as tenants and on that basis hepurported to terminate the tenancy by giving notice. TheDefendants while denying the rights of the Plaintiff, had refusedto accept the Plaintiff as their new landlord. The premises weregoverned by the Rent Restriction Act. L. B. de Silva J. with whomAbeysundera J. agreed, held :—
"The defendants are entitled to take up the position andrefuse to acknowledge the transferee of their landlord astheir own landlord, but in such an event the defendants arenot entitled to claim any rights of tenancy from the plaintiffin this action, or even to claim the rights of a statutorytenant as against the plaintiff".
In the instant case a similar legal position arises on the facts.The Plaintiffs-Respondents who were the new landlords acceptedthe Defendant-Appellant as their tenant when they became thelandlords by their joint declaration dated 1 7th May >976. But on17th June 1974 the Defendant-Appellant had before the RentControl Board denied that he was the tenant, stated that he wasthe tenant of one Sittampalam and thus did not accept thePlaintiffs-Respondents as his landlords. When the Plaintiffs-Respondents gave him a notice dated July 1976 to quit the
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premises on or before 31st July 1977, he had remained silent,but kept on remitting the rents on the basis clearly stated by himin his answer dated July 1979 as the agent of the saidSittampalam. In spite of the Plaintiffs-Respondents regarding himas the tenant, the Defendant-Appellant refused to accept thePlaintiffs-Respondents as his landlords. On the evidence placedbefore the District Judge, he accepted the position of thePlaintiffs-Respondents. But as the Defendant-Appellant clearlyand in unequivocal language asserted that though he occupied aportion of the premises and remitted rents merely as the agent ofone Sittampalam was not as a tenant of the Plaintiffs-Respondents but as a licensee of the said Sittampalam. theDistrict Judge came to the correct finding that the Defendant-Appellant was not entitled to claim the rights of tenancy or evenclaim the rights of a statutory tenant entitled to protection underthe Rent Act.
Senior Counsel for the Defendant-Appellant relied on thedecision of two Judges of the former Supreme Court in the caseof Edirisinghe v. Patel (5). The facts in that case were differentfrom those in the instant case as the defendant there admittedthat he was the tenant, then later pleaded that he was a jointtenant of the plaintiffs and then again pleaded that the other jointtenant alone continued to be the tenant. There was no denial ofthe rights of the Plaintiffs as the landlords of the premises andthat the Defendant had been a tenant. However, with all duerespect to the Judges who decided that case. I regret I am unableto agree with the conclusions arrived by Pathirana, J. on thebasis of -the two examples visualised by him, to form the viewthey had formed in that case in regard to the protection affordedby the Rent Restriction Ordinance to a defendant who attemptedto repudiate his contract of tenancy. In that case Sirimanne, J.referring to the series of cases cited beginning with MuthuNathchia v. Pathuma Natchia (6) where the principle wasenunciated that a tenant disclaims to hold of his landlord andputs him in defiance was not entitled to ask for the dismissal ofan action for ejectment for want of a valid notice to quit, statedas follows
"The reason why such notice is not necessary and why a
defendant who denies a tenancy cannot take up such a plea
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is because by his denial he repudiates the contract oftenancy and thus terminates it. It is therefore not open tothe defendant who has himself terminated the contract tosay that the plaintiff has not terminated it by a valid notice. Acontract of tenancy can be terminated not only by a validnotice, but also by a repudiation of that contract".
If that was the correct legal position, the defendant in that casewas not the tenant on his own plea and therefore could notinvoke the protection of the Rent Restriction Ordinance then inforce.
In view of all the circumstances of this case. I hold that theDistrict Judge came to a correct finding that the Plaintiffs-Respondents were entitled to the order for the ejectment of theDefendant-Appellant on the basis of the Defendant-Appellant'sown conduct and the defence he set up before the action wasfiled and after the action was filed that he was never the tenant ofthe said premises under the Plaintiffs-Respondents.
The appeal is accordingly dismissed with costs payable to thePlaintiffs-Respondents.
WlMALARATNE, J. — I agreeCOLIN THOME, J. — I agreeAppeal dismissed.