016-NLR-NLR-V-69-M.-ABDUL-RAHIM-Appellant-and-M.-M.-IBRAHIM-Respondent.pdf
G. P. A. SILVA, J.—Abdul Rahim v. Ibrahim
65
1966Present:G. P. A. Silva, J.
M. ABDUL RAHIM, Appellant, and M. M. IBRAHIM, Respondent
S.C. 66/1965—C. R. Kalmunai, 127/L
Rent Restriction (Amendment) Act. No. 12 of 1966—Section 3—Benefit of it pleaded bytenant in the Appellate Court—Right of landlord to prove then, for the first time,that the premises are excepted premises—Rent Restriction Act, s. 2 {4).
In an action in ejectment, a landlord (the plaintiff) obtained judgmentagainst his tenant (the defendant) on the footing that the premises let weregoverned by the Rent Restriction Act and that they were reasonably requiredby him. In appeal the defendant-appellant brought to the notice of theCourt that, in view of the provisions of the Rent Restriction (Amendment)Act No. 12 of 19CG, the proceedings were null and void because he had not beengiven one year’s notico to quit. Thereupon the phi itiff sought to prove thatthe premises were “ excepted premises ” within the meaning of section 2 (4)of the Rent Restriction Act.
Held, that the plaintiff should be permitted to prove that the premises wereexcepted premises.
A.PPEAL from a judgmont of the Court of Requests, Kalmunai.
H. V. Pe.re.ra, Q.G., with, S. Sharvananda, for the Defendant-Appellant.
G. Ranganalhan, Q.C., with S. C. Crossette-Thambiah, for the Plaintiff-Respondent.
Cur. adv. vult.
October 30, I960. G. P. A. Silva, J.—
The plaintiff-respondent brought this action against the defendant-appellant for ejectment from certain premises lot by the plaintiff to thedefendant on a monthly tenancy at the rate of Rs. 150 per month. Itwas alleged in the plaint that the premisos woro governed by the provisionsof the Rent Restriction Act arid the ground urged by the plaintiff forejectment of the defendant was that they were reasonably required bythe plaintiff for his business. The case proceeded on the footing thatthe promises were in fact governed by the Rent Restriction Act and thelearned Commissioner entered judgment in favour of the plaintiff on theground that they were reasonably required by him.
Although one of the grounds stated in the petition of appeal was thatthe Commissioner errod in holding that the premises wore reasonablyrequired, counsel for the appollant did not base any argument on thoselines but brought to the notice of this court that, in view of the provisionsof section 3 of the Rent Restriction (Amendment) Act No. 12 of 1966,unless a tenant of any rent controlled premises avas given one year’snotice to quit the premises all proceedings in the case were null and void.Counsel for the respondent, while not contesting the correctness of thesubmission of counsel for the appellant, produced a document XI whichwas a certified extract from the Assessment .Register relating to the
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G. P. A. SILVA, J.—Abdul Rahim v. Ibrahim
premises in question during the period 1961-1965 to show that thepremises were not in fact rent controlled at the time the action was filed,namely, on 18.5.1964, although it was so stated incorrectly in the plaint.He argued on the basis of this document that the premises in questionwere therefore in fact “ excepted premises ” within the meaning ofsection 2 (4) of the Rent Restriction Act and that the provision of theamending Act on which the appellant reliod had no application to thepremises. Counsel for tho appellant contended that the plaintiff cameto court on the basis of the promises being rent controlled and that itwas therefore not open to him now to meet the situation that has arisenafter the new Act on a different basis, namely, that the premises werenot in fact rent controlled. While this was his main contention healso contended that tho document XI should not be accepted by thiscourt in considering the question before it. He also indicated thatthe appellant did not have an opportunity to object to the revisedassessment of 1961 but for which the premises would still be rentcontrolled, in which event the provisions of the Act of 1966 would beapplicable and tho proceedings rendered null and void.
It seems to me that, if the document XI is taken into consideration,the question for decision in this case must necessarily be affected. For,if tho annual assessment of the premises is higher than the limit whichwould bring them within the operation of the Rent Restriction Act, thecontention of counsel for the appellant that the proceedings be declarednull and void cannot prevail. While it is correct that the plaintiffcame to court on tho basis that the promises in question were governedby the provisions of the Rent Restriction Act, there was no issue onthis point. When counsel for the respondent now submits document XIwhich negatives this averment on which he came to court, the interestsof justice would not bo served if this court were to refuse to consider itfor tho reason that it conflicts with the basis on which the plaintiff cameto court. Different considerations would arise of course if the questionthat has arisen now, namely, whether the proceedings are a nullity, hadarisen at the trial in the lower court and the plaintiff had not producedthe document XI which would have been so relevant to the decision ofthat question. The case proceeded to trial on the basis of an ejectmentcase in respect of premises governed by the Rent Restriction Act andthe plaintiff in fact undertook a much heavier burden of proving hisreasonable requirement which he successfully did. He did not thereforesecure any advantage for himself by the averment that the promiseswere rent controlled in which event this court would have been slow toaccept any submission based on document XI. As the situation thathas arisen has resulted from the passing of the new Amending Act theissue whether the premises were in fact rent controlled at the time ofthe institution of the action now arises in an acute form. The documentproduced by the respondent prima facie shows that his contention thatthe premises in question are not rent controlled is correct. As, however,the appellant has had no opportunity of attacking the validity of therevised assessment of the premises in 1961, which has resulted in the
Ponniah v. Sheriff
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premises being taken out of the sphere of rent controlled premises, itis not possible for this court to decide the question on the sole testimonyof this document. I therefore make order that this case be sent backto the Commissioner to inquire into the question whether the premisesin respect of which this action was brought were rent controlled premiseswithin the meaning of the Rent Restriction Act and to forward hisfinding to this court. In view of the time that has already elapsed aftertie trial, the Commissioner of Requests will give priority to this matterand forward his finding to this court as early as practicable. TheRegistrar will, on roceipt of the further proceedings from the Commissioner,list this case for further hearing within a month of such receipt.
Sent back for further proceedings.