041-NLR-NLR-V-79-2-LOKUWITHANAGE-ALLEN-PERERA-and-BALASURIYAGE-JOHN-PERERA.pdf
RAJAKATNAAI, J.—Allen lJer&ra v. John Pererit
*-.'81)
1978 Present : Rnjaratnam, J., Vythialingam, J. andSharvananda, J,
LOKUWITHANAGE ALLEN PERERAand
BALASURIYAGE JOHN PERERAS.C. 160/70 (F)—D.C. Colombo 11775/L
Landlord and tenant—Stile of rented premises—Action filed bypurchaser on ground that tenant of former owner was in unlawfuloccupation and a trespasser—Premises no longer habitable attime of sale—Does tenancy subsist—Whether provisions of RentRestriction Act apply—Defendant failing to raise issue of tenancyat trial—Right of purchaser to obtain decree in ejectment.
Held : That a tenancy comes to an end and so also the statutoryprotection given by the Rent Restriction Act to the tenant comesto an end with the demolition or collapse of the house. Accordinglythe purchaser of premises which had ceased to be habitable andhad collapsed at the time of its purchase is entitled to maintainan action to have the former tenant of these premises ejected onthe basis that he was in unlawful occupation. In any event, atenant who seeks to invoke his tenancy of such premises as adefence must not only plead and put in issue the tenancy but mustalso meet the plaintiff’s case that the subject matter of the tenancyhad ceased to exist.
Cases referred to :
Giffry v. de Silva, 69 N.L.R. 281■""
David Silva v. Madanayake, 69 N.L.R. 396.
Fernando v. de Silva, 69 N.L.R. 164.
Issadertn Mohamed v. Singer Sewing Machine Co., 64 N.L.R. 407.
^PPEAL from a judgment of the District Court of Colombo.
H. W. Jayewardene, Q.C., with N. R. M. Daluwatte and MissP. Seneviratne, for the plaintiff-appellant.
Miss Maureen Seneviratne, for the defendant-respondent.
Cur. adv. vult
July 20, 1978. Rajaratnam, J.
* The premises in suit, No. 143, Kolonnawa Road, was owned byone Junaid who by deed conveyed the same to the plaintiff on15.10.66. About a year thereafter he instituted the present actionto have the defendant ejected on the ground that he is atrespasser and is in unlawful occupation since October 1966 tothe plaintiff’s loss and damage of Rs. 25 per month. The answerof the defendant was filed only in June 1969.
In the meantime on 20.8.68 the plaintiff moved for an injunc-tion to restrain the defendant from constructing a house whereaccording to the plaintiff there was a mud and wattle hut in adilapidated condition. The defendant’s position was that he was atenant of these premises first under one Wickramasinghe andthen under one Junaid paying a rent of Rs. 23.05. Junaid had
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RAJ All ATK AM t J. —Alien Per ora v. John 7V.ro ra
filed action to eject the defendant in 1965 but the action wasdismissed on 16.9.67. In other words when the plaintiff becamethe owner of these premises on a conveyance, there was thesaid action pending and it was after Junaid failed in his actionto have the defendant ejected that the plaintiff filed his firstplaint to have the defendant ejected as a trespasser. The aver-ments in paras 4 and 5 are particularly significant in that theplaintiff averred that defendant was in wrongful and unlawfulpossession of the premises from October 1966, i.e. the date of theconveyance and had no manner of title or right to the saidpremises and also that the plaintiff and his predecessors in titlewere in undisturbed possession of same. The plaintiff nowheredisclosed to Court that the premises were dilapidated, unfit forhuman habitation and no longer a residential building. It wasalso not disclosed that the defendant was a tenant of Junaidwhen the plaintiff became the owner of the premises in suit.
It was the defendant’s position that after the dismissal of theaction brought by Junaid, he continued to pay rent to Junaidby money order and has done so up to date. It was also hisposition that he was never informed of any transfer of thepremises to the plaintiff. According to him, in April 1968 theroof of the premises caved in and he wrote to Junaid who paidno heed to it. He was compelled he said under the circumstancesto repair the premises at his own expense. He denied construc-ting a new house in the premises.
At the injunction inquiry it was agreed that the enjoiningorder should be dissolved and the defendant should be allowedto continue with the improvements but that he would not beentitled to compensation for such improvements if an order ofejectment be entered against him (vide proceedings p. 58). Thisagreement was arrived at on 22.2.69.
It was at this stage that amended plaint was filed on 27.4.69wherein the plaintiff pleaded for the first time that Junaid hadrented the premises' to the defendant on a rental of Rs. 23.05 permonth but by 15.10.66 before the premises were conveyed tohim, the house had. collapsed and therefore the contract oftenancy between Junaid and 1he defendant had been determined.The plaintiff’s case was that the defendant had no right toremain in possession after the house had collapsed arid he wasthere as a trespasser. The defendant’s position taken up in theanswer was that he continued to be a tenant of Junaid and paidrents up to May 1969, that is to say, a month before he filedanswer. The defendant also states that if he had been informedof the transfer he would have attorned to the plaintiff.
RAJAKATNAM, J. -—Allen Perero v. John Perem
291
The issues raised at the trial were as follows: —
Is the plaintiff as the owner of the said land and premises
described in the schedule to the plaint entitled to anorder for the ejectment of the defendant ?
Is the plaintiff entitled to damages against the defendant
from the date of the action ?
If so, in what amount ?
The learned trial Judge answered the issues as follows : —
No, as the defendant is still the tenant of Junaid.
No.
Does not arise,
and dismissed the plaintiff’s action with costs.
It will be seen that the deifendant has raised no issue as towhether he is entitled to remain in possession as a tenant.
According to the plaintiff a sum of Rs: 3,000 was retained byhim as Junaid said that he had a case, i.e. the ejectment casepending against the defendant and possession would be givenafter the determination of the case. This case as stated earlierwas dismissed on 16.9.67. It was the plaintiff’s case that noperson was in occupation of the premises on the date ofpurchase. There was a portion of a house in a dilapidatedcondition, one of the walls of which had come dov/n and onlyhalf the roof was resting on a wall. When Junaid ’s action wasdismissed, Junaid still did not hand over possession and there-fore plaintiff filed the present action. The letters PI, P2, P3, P6and P7 are the correspondence between the Kolonnawa TownCouncil, the plaintiff and also the defendant with regard to thebuilding which was in a dilapidated condition unfit for humanhabitation. But these letters cover the period between June1968 and September 1969.
The learned trial Judge found that these letters disprove theplaintiff’s case that the contract of tenancy between Junaid anathe defendant had terminated as a result of the collapse of thehouse prior to October 1966. He also found that if the house socollapsed, there was no necessity for Junaid to have continuedthe Court of Requests action until September 1967. For thisreason, he held that there was a valid contract of tenancy subsist-ing between Junaid and the defendant in October 1966 andthereafter. The learned trial Judge, however, failed to directhis mind to the fact that if the action continued it does not meanthat the house had not collapsed before the termination of theaction. If the defendant notwithstanding the collapse of the houserefused to give up possession or occupation to Junaid, Junaid
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BAJARATNAil, J. —AUen Perera v. John Pcrcru
would not have necessarily discontinued the action over his rightshe claimed as they stood when he went to Court in 1965. Theproceedings of this case, the order and the pleadings are notbefore us. On the other hand an examination of PI written inJune 1968, indicates that the Medical Officer of Health has foundthe premises decayed and unfit for human habitation and thepremises is described as a dangerous house. On P2 plaintiff hasdescribed it as a house unfit for human habitation. She has alsostated that the house is not in a position to be repaired andrequested the defendant to quit this house. P3 granted thedefendant an extension of^six months to restore the said houseand for repairs.
The Surveyor’s report filed on 17.2.69 pursuant to a Commi-ssion issued by Court on 16.12.68 reveals that when he visitedthe premises on 14.2.69 he found the house an old are and beingdemolished in parts by the defendant and new walls to replacethe old walls being erected. “ A section of the old roof was beingreplaced, by new rafters, new reepers and galvanized sheets bythe defendant. Cattle were found tied inside the house and walls(as specified in the plan) do not exist By P6, the Town Councilwrote again to the plaintiff to repair the house No. 143 to makeit suitable for human habitation. This letter is dated 20.9.69.
It is clear that the premises in 'suit in February 1969 wasneither habitable nor occupied but the question before Court iswhether on the date of purchase the premises were in a similarcondition. On this question Wide on Landlord and Tenantobserved at page 249 :
“ In the case of a house being let, if that is completelyburnt, the lease comes to an end, even though the landremain, but not where the tenant is still able to exercisemany of his rights under the lease, notwithstanding thecomplete destruction of the buildings ”.
On the evidence led by the plaintiff the defendant had left thepremises .which he had been let and the defendant did' notcontradict this position.
In the case of Giffry v. de Silva, 69 N.L.R. 281, a building whichwas the subject matter of a lease and rent controlled waS burntdown without the fault of the landlord or the tenant, it was heldthat the tenancy comes to an end even if it fell within the RentRestriction Act. In this case the frontage and the main roof ofthe building was completely destroyed by the fire. Two of the. walls remained standing. Sansoni, J. observed at page 282 :
RAJARATNAM, J. —Allen Perera v. John Perera2ii'S
“ The law is clear that where a building which is the.subject of a lease is burnt down without the fault of the.
landlord or the tenant, the contract is at an endBy.
the contract the tenant is entitled to the use and occupationof the building and if there is no building to use and occupy,there is no existing contract
I am mindful of the fact that in the above case, the tenant handedover the premises to the landlord as is hot the case in the presentmatter before us. It is clear law again that the statutory protec-tion given by the Rent Restriction Act to the tenant comes toan end with the demolition of the house or the collapse of thehouse. We must therefore examine the question whetherthere was any evidence at the trial to the effect thatthe premises had collapsed by the time the plaintiff becamethe owner of the premises. The plaintiff gave evidenceat page 61 and she stated that no one was living in the premisesat the time she bought it in 1966 and there was no habitablehouse. There was only a portion of a house which was in adilapidated condition. One of the walls had come down and onlyhalf the roof was resting on a wall and the building was in adilapidated condition. According to the plaintiff the defen-dant after June 1968 started repairing the existing walls and putup new walls. In any case, there is also the circumstance thatfrom what the Surveyor saw in February 1969, cattle were foundtied inside the house and some walls did not exist. The plaintiff’sevidence is consistent with the house having been abandoned by.the defendant at the time he purchased the house, as it was nothabitable because the premises were in a condition as describedby the plaintiff. The plaintiff's evidence again was on the basisthat when he bought the premises the defendant was in unlawfuland wrongful possession having vacated the premises whichcould not be used for purposes of habitation. It is clear that there;was nothing to occupy as a building and that is why the defenr.dant vacated the premises.
At the stage of the cross-examination of the plaintiff, I findthat the Court has made this inquiry which is noted in theproceedings (page 72) :
“ I inquire from Mr. Premadasa (Counsel for defendant) .whether the question involved in this case is this: Has thesubject matter of the contract of tenancy ceased to exist ?
Mr. Premadasa states that there is no issue on this point.He states further that that question is not relevant for the.purpose of this case”. •,
It is evident that learned Counsel for the defendant advised5himself that the question whether the building fit for occupa-*.tion ceased or did not cease to exist was irrelevant. On the other
A 62612 (80/11)
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RAJ AR ATX Ail, J. —Allen Perera v John Perera
hand, the plaintiff’s case was that the defendant was a trespasserin premises which all along during the relevant time was neitherhabitable nor occupied but on the other hand was abandonedby the defendant though retained by him to construct a habi-table house. It was a grave risk the defendant took when tocounter the plaintiff's case and the issue raised he advised himselfthat it was irrelevant to raise issues on tenancy, and theexistence of some portion of the residential premises for useand occupation by him. On the one hand there was the plaintiff’sevidence and on the other hand there was no evidence forth-coming from the defendant to meet the plaintiff’s case apart fromthe defendant persistently maintaining that he was the tenantof Junaid and had paid rent to Junaid till February 1970. Thetenancy the defendant claimed does not meet the plaintiff’s casethat the premises ceased to be residential premises for use andoccupation as it had collapsed and was unfit for habitation.
It is not possible for this Court to reject the plaintiff’s caseeven accepting the defendant’s position that he was a tenantunder Junaid. In other words, the plaintiff’s case survivesthe defendant’s evidence ashe does not deny the
position taken up by the plaintiff that the residential premisesceased to exist at the time of his purchase for the use and occu-pation of it as such by the defendant.. The defendant was in aposition to give that evidence but did not. The defendant wasin a position to cross examine the plaintiff on his case but hedid not.
1 The circumstance that Junaid continued to recover rentstill February 1970 even if true does not help the defendant. Thedefendant, I have noted, has not called Junaid or produced therent and one fails to understand how and why he continued topay rent to Junaid instead of to the Rent Board after June 1968when the plaintiff moved for an injunction.
The correspondence produced though dated after 1968 isconsistent with the plaintiff’s earlier position, and Junaid’s actiontoo in the Court of Requests continuing after the purchase tillits dismissal in September 1967 does not cut across the plaintiff’scase. In this context and in view of the plaintiff’s evidencesupporting his case, the defendant’s silence on this point andfailure to raise an issue which naturally arose from the plaintiff’scase was fatal to the defendant. The first issue raised by theplaintiff covers the said issue as far as it related to His case whenhe raised the issue whether as owner he was entitled to eject thedefendant as a trespasser. The defendant did not meet the case ofthe plaintiff at. this point, i
KAJAK ATNAM, J. —Alien Pert.ru v. John Petera
295
The defendant relied on the principle of “ Hire goes before sale ”and on the decision in the case of David Silva v. Madanayake, 69N.L.R. 396, which quite rightly commended itself to the learned,trial Judge who also referred to the decision in Fernando v. deSilva, 69 N.Li.R. 164, and Izzadeen Mohamed v. Singer SewingMachine Co., 64 N.L.R. 407. But the principle of “ Hire goes beforesale ” presupposes a hire and not where Vhe subject matter of thehire had ceased to exist. The principle certainly applies to asubsisting hire. A tenant must not only plead the tenancy butmeet the plaintiff’s case that the subject matter of tenancy hadceased to exist and has been abandoned as unfit for human useand occupation. As Sansoni, J. observed in Gilfry’s case (supra)
p. 282 :
“ I do not think that the law in Ceylon is different from theEnglish Law in this respect. In neither country can there bea statutory tenancy in respect of bare land. I think the state-ment in Mr. R. E. Megarry’s bobk on The Rent Acts (8th Edit-ion) that “ the restrictions of the; Acts do not inhere in theland after the demolition of the dwelling house, but remainonly so long as it is there ” which was approved by Evershed,M. R. in Morleys (Birmingham) Ltd. v. Slater, is applicableto Ceylon”.
The other cases referred to above have also been decided on thisbasis of a subsisting tenancy within the scope of the Rent Laws.
It is true unlike in Giffry’s case there was no handing over , ofthe premises to the landlord but whether the premises are handedover or abandoned for purposes of habitation, the principle is thattenancy within the Rent Laws apply to buildings that continueto be put into use and occupation. It is not open for a tenant ofresidential premises to leave the premises because it is unfit forhuman habitation and use the premises as, for example, a cattleshed and then galvanise himself into action and construct a habi-tation to suit himself. In this case the law and the authoritiesrelied on by the defendant would have been of avail to him onlyafter the raised an issue and led evidence to meet the plaintifTscase that he was a trespasser under the circumstances.
The learned trial Judg'fe has,'With great respect if. I may sayso, failed to give adequate consideration to the essential part ofthe plaintiff’s case surviving the defendant’s case.
Learned Counsel for the defendant-respondent reminded usthat we must be slow to interfere on findings of fact. I entirelyagree with her submission but on the other hand when an orderhas been made despite the plaintiff’s case supported by evidencesurviving the defendant’s case which did not cut across theplaintiff’s case and in this respect there is no evidence to balance
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RAJAliATN AM, J. —Allen Pere.ru v. John Perera
the probabilities in favour of the defence, I am compelled to setaside the judgment and decree entered below and give judgmentfor the plaintiff as prayed for in respect of—
the declaration that she is entitled to the land andpremises described in the schedule,
for ejectment of the defendant and all others holdingunder him the said premises No. 143, Kolonnawa Road, describedin the schedule to the amended plaint (p. 30) and
for costs here and below.
In respect of damages, I am mindful of the fact that theplaintiff arrived at a settlement with the defendant-respondent(p. 58) that the defendant will not be entitled to a claim for anycompensation for improvements if an order for ejectment isentered against the defendant at the trial. In so doing the plain-tiff, although he was in a position to restrain the defendant tomake the premises once again habitable, permitted improvementsthus giving an opportunity for the defendant to hold, on to thepremises for a longer period. If the defendant was totally res-trained as the plaintiff could have, the defendant would havemoved out of the premises much earlier. The plaintiff has notexercised his rights as he could have. Moreover the action hasbeen, unnecessarily delayed for the last 11 years in the Courtbelow and it cannot be said that it was not due to the plaintiff.In all the circumstances I do not order any sum as damages tillthe 4th of October, 1967, as prayed for in para (b) of the amendedplaint. The plaintiff’s counsel also at the end of the plaintiff’sevidence abandoned the claim for damages up to the filing ofthe plaint (p. 68). With regard to the damages claimed in para(O of the prayer, no evidence has been led to prove thedamages. As stated earlier there were improvements permittedto be made without a right to compensation as agreed by theparties, although the plaintiff was in a position to seek an orderfrom Court to totally restrain the plaintiff from carrying outany improvements to enable him to come back to occupation.There was no inquiry into this issue of damages, no evidenceled and an answer to it did not'arise below. I therefore ordernominal damages at Rs. 5 per mensem from October 1967 tillejectment of the defendant and those holding under him.
I therefore allow the appeal and order judgment f,or the plain-tiff as prayed for in paras (a), (e), (d) and nominal damages atthe rate of Rs. 5 per mensem as stated above. Enter decreeaccordingly.
Vythialingam, J.—I agree.
ShArvananda, J.—I agrefe.
Appeal allowed.