018-NLR-NLR-V-75-M.-ASILIN-NONA-Appellant-and-K.-DON-WILLIAM-Respondent.pdf
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Asilin Nona t>. Don William
1971Present: Weeramantry, J.Mi ASILIN NONA, Appellant, and K. DON WILLIAM, RespondentS.G. 188/69—C.R. Colombo, 93890/RERent-controlled premises—Conviction of tenant for unlawful possession of arrack—Whether the tenant can be held to have used the premises for an immoral orillegal purpose—Rent Restriction Act.
"Whero a tenant of rent-oontrolled residential premises has been convictedonce of unlawful possession of arrach, he is not liable to be evicted by thelandlord on the ground of user of the premises for an immoral or illegalpurpose.
WEE RAMANTRY, J.—Aailin Nona v. Don William
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/PPEAL from a judgment of the Court of Bequests, Colombo.
A. Sivagurunathan, for the defendant-appellant.
8. Parameswaran, for the plaintiff-respondent.
Cur. adv. vult.
November 10, 1971. Weeramantby, J.—
The plaintiff sues the defendant in ejectment on the basis inter alia ofuser by the defendant of the premises for an illegal or immoral purpose,namely, the illicit sale of arrack.
In the course of trial it was suggested to the defendant that she hadbeen convicted on many occasions in connection with possession ofarrack. The plaintiff however, as the learned judge has observed, didnot produce any records to prove these allegations and they remainedunproved save for the admission of the defendant in her original answerthat she had on one occasion been convicted on a charge of possession ofarrack which had been brought by her for a house party. It shouldbe added that there was an amended answer admitting this and further-more that at the trial the defendant took up the somewhat differentposition that she had been asked to pay Rs. 15 to charity as Bhe hadpleaded guilty to carrying two bottles of arrack.
The defendant’s version seems therefore somewhat lacking in candour,hut at the same time where an allegation is made by a landlord that thepremises are being used by a tenant for an illegal or immoral purpose theburden lies upon the landlord of establishing this fact. The landlordhas in this case not been ready with the requisite proof of his allegationsand we are left only with the evidence of a conviction for an offence thedetails of which are not clear but which certainly is not an offence 'ofsale but only one of possession.
The question then arises whether such a single conviction may be thebasis on which it can be held that the defendant has used the premisesfor an unlawful or illegal purpose.
In the case of Abraham Singho v. Ariyadasa11 had occasion to hold thatan illegal Bale of arrack on the premises in contravention of the provisionsof the Excise Ordinance is a use of the premises for an illegal purpose andthat a sale on a single occasion is sufficient to constitute such use. It wasthere pointed out that the satisfactory test would be not whether the userof the premises constitutes an essential element of the offence but whetherthe tenant has taken advantage of the premises and the opportunitythey offered for committing the offence. As I there observed an illegalsale of arrack requires a measure of cover and there is no doubt thebuilding had in that case‘been taken advantage of.
1 {1968) 71 N. L. R. 138.
15- Volume LXXV
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Wilbert v. Newman
In the present case there seems to be hardly any evidence of the tenanttaking advantage of the premises for the purpose of committing theoffence. Unlike in the c^ge of an illicit sale where the cover of the buildingis made use of or taken advantage of for the purpose of effecting the sale,the mere offence of possession does not appear to involve taking advantageof the building as such. Moreover the premises in question were, accordingto the evidence, used by the defendants as a residence although they hadoriginally been used for business purposes. Had the premises been a teakiosk and had the charge been one of sale, one might more readilyarrive at the conclusion that the premises had been taken advantage offor committing the offence.
Furthermore, in the present case there appears to be some doubt as towhether the tenant was detected having the arrack on the premises oroutside them, for her version as given in her evidence is that the offenceshe committed was the carrying of two bottles of arrack. If this be so, theuse of the premises did not constitute a material factor in the commissionof the offence at all. There is in the present case not even the basic evidencethat the offence did in fact take place upon the premises.
For these reasons I consider that the landlord has failed to place beforethe Court adequate evidence in support of his contention that the premiseswere used for an illegal or immoral purpose.
In view of these conclusions it does not become necessary for me toconsider the further point taken on behalf of the tenant regarding thelegal validity of the notice to quit.
For these reasons I would allow the appeal and dismiss the plaintiff’saotion with costs both here and in the court below.
Appeal allowed.