092-NLR-NLR-V-58-M.-A.-NOORBHAOY-Appellant-and-SELLAPPA-CHETTIAR-et-al.-Respondents.pdf
Present :H. N. G. Fernando, J.1957
3L A. XOORBHOY, Ai>pellant, and SELI/APPA CHETTIARet al., RespondentsS. C. 26—G. R. Colombo, 51,797
Rail Restriction Act—Purpose for which landlord requires premises—Difference’between averment in plaint and issue raised al trial—Effect on bona tides oflandlord’s claim—Alternative accommodation—Should sub-tenants’ needs beconsidered r•■
The fact that- the plaintiff stated at the trial that ho required tho premisesas a place of residence and proceeded to trial upon that footing without objection,though in his plaint ho had stated that ho required them as a place of business,is not a circumstanco that negatives tho bona fidcs of the plaintiff’s claim.
Tho premises were occupied by tho 1st defendant as tenant, who had subletportions of them to the 2nd and 3rd defendants. No attempt was made bytho tenant to get alternative accommodation for himself alone, but it wassaid that alternative accommodation for him and his sub-tenants was notavailable.
'Held, that in determining tho reasonable needs of tho plaintiff as' againstthe tenant, the needs of the sub-tenants should not be taken into consideration.
jA^PPEAL from a judgment of the Court of Requests, Colombo.
Sir Lolita Rnjapalcsc, Q.C., with Carl Jayasinghe cand D.- C. IP.Wickremeselcara, for the plaintiff-appellant.
H. JV. Jayeuardene, Q.G., with G. Manohara and P. Ranasinghe,for the defendants-respondents.
Cur. adv. vult.
March 21, 1957. H. X. G. Ferxasdo, J.—
In this ease the landlord, who presently resides and carries on businessin Galle, seeks to eject his tenant t-lic 1st defendant from premises atSilversmith Street, Colombo, on tho ground that the landlord requirestho premises for occupation as a residence. The learned Commissionerhas dismissed the action holding that the plaintiff’s claim that he requiresthe prom ises for a residence is not bona fide.
One reason for this opinion is that in his plaint the plaintiff hadaverred that he required tho premises for occupation as a place ofbusiness, but at the commencement of the trial plaintiff's counsel putin issue the question whether the premises are required for purposes ofresidence ; no objection was taken to this iss.uc and a large volume ofevidence relevant to it was given at tho trial. In these circumstancesI do not think it is open to the defendants at the"end of the trial to relyon the different averment in the plaint ; if that averment had beenmistaken and if objection had been taken to the issue, the plaintiff wouldhave been able without ride of criticism to amend his plaint on termsas to costs.
2*J. X. E G5507 (5/57)
Another reason on -which the learned Commissioner thought that thoclaim was not bona fide requires some explanation. The plaintiff is alsothe owner of premises adjoining those now in suit and had institutedan action for ejectment of the tenant of those premises on the groundthat he required it for purposes of residence. At the time of the present-trial he had obtained decree for ejectment in the other action. -The learnedCommissioner seems to have thought that having succeeded in that•other action, the plaintiff has changed his original -ground in the present•one by going to trial on tho issue (not raised in the plaint) that he requires"those premises also for purposes of residence. I do not quite understandthis reasoning. If the plaintiff had originally intended to seek ejectmentin order in tho one case to reside in the premises and in the present caseto carry on his business,. Iris chances of success in the present one wouldhave been greater provided he showed a bona fide, desire to carry onbusiness at- these premises. But by now seeking ejectment of the tenantof these premises also on the same ground, the plaintiff has, if at all, torely on less strong ground.
The evidence is that plaintiff owns considerable property hi Colombofrom which ho derives a fairly substantial income. His family consistsof his wife and six children, tire eldest of whom is married and independent.Of the other five, four arc daughters. The apartment in which they nowJive in Galle adjoins the premises in which the plaintiff carries on abusiness in cement-. He states that he has decided to leave that apart-ment because the cement dust makes the living quarters unhealthy.He also wishes to educate his children at a school in Colombo for Borahpeople, there being no similar school in Galle, and he has made arrange-ments to admit his teen-age son to Za’iira College, Colombo. While itis true that the whole family presently occupies a single room in Galle,there is nothing inherently suspicious or mala fide in the evidence that,the plaintiff now desires to live in greater comfort and to educate hisfamily in Colombo, l-’or these reasons I am unable to agree with tirelearned Commissioner that the present action is not a bona fide one.
In the view taken by the Commissioner the question of comparativeneeds did not directly arise, but itis indirectly referred to in the judgment.The 1st defendant is a member of the Chetty community who carrieson business in Colombo as a pawnbroker. He left for India fouryears before the trial and has not returned to Ceylon since. He is himselfan Indian citizen and carries on business through his attorney who alsois an Indian citizen whose temporary residence permit lias expired. Thesecond defendant is a sub-tenant under the first defendant. He also isnot a resident of Ceylon and carries on business through an attorneywhose temporary residence permit lias also expired. The 3rd defendantis similarly an attorney, whose temporary residence permit- has nowexpired, of a non-resident money-lender. It- must bo assumed in theabsence of evidence to the contrary that tho persons who actually carin'on business in Ceylon on behalf of these principals are lawfully residentdespite the expiration of their permits. But I do not think that the needsof the 2nd and 3rd defendants should be taken into account in deter-mining whether as against the plaintiff the premises arc reasonablyrequired by the tenant who is the 1st defendant. As to this tenant.
the attorney's evidence is thatall three principals carry on their businessin. these premises and that the employees of all the principals residethere. The evidence shows that the principals consider it desirable“for protection’s sake ” that the business of the three jmncipals shouldbe carried on hi one place and that the employees should reside together.I doubt whether this desire should be allowed to weigh in balance againstthe plaintiff's desire to have a residence hi Colombo for his family. Sofar as the tenant himself is concerned, his attorney searched for premisesfor all three businesses and all the employees. He stated quite frankly“ If I got- a place only for my occupation, I would not- have taken it. ”This shows that the tenant has made no serious attempt to securealternative accommodation and it has therefore not been proved that suitablealternative accommodation is not in fact available for the tenant. Thatbeing so, the plaintiff has made out a case for ejectment which has notbeen rebutted by his tenant.
I think therefore that this appeal must be allowed with costs in bothCourts. Decree will bo entered for the ejectment of the defendants fromthe premises in suit, but writ will not issue until 1st January, 195S.
Appeal allowed-