107-NLR-NLR-V-60-M.-SAIBO-Appellant-and-AMEEN-Respondent.pdf
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BASNAYAKE, C.J.—Saibo v. Ameen
1956Present: Basnayake C.J., and de Silva, J.
M.SAIBO, Appellant, and AMEEN, Respondent8. G. 86—D. C. Colombo 26827
Bent. Restriction Act, No. 29 of 1948—Section 28—Sub-tenant's right to avail himself,thereof.
Section 26 of the Rent Restriction Act is of no avail to a sub-tenant 'whenthe landlord sues him for ejectment in a separate action.
i^^-PPEAL from a judgment of the District Court, Colombo.
B. V. Perera, Q.G., with E. R. 8. R. Coomaraswamy and E. B.Vannithamby, for defendant-appellant.
E. W. Jayewardene, Q.O., with F.Jayawardene, for plaintiff-respondent.
W. Obeyesekere and WalterCur. adv. trull.
April 30, 1956. Basnayake, C.J.—
The plaintiff let on a monthly tenancy premises No. 164, Keyzer Street,Pettah, to one S. N. M. Buhary. As Buhary fell into arrears of rent hesued him and obtained judgment against him. He applied for a writ ofpossession, and; when the Fiscal proceeded to eject Buhary, his servantsAnd all persons claiming under or through him from the premises, thedefendant refused to vacate the premises claiming to be in occupationof a portion of the said premises referred to as No. 166 as tenant ofBuhary with the knowledge of the plaintiff. In consequence the Fiscalwas not able to execute the writ of possession. Next the plaintiff tookproceedings under section 325 of the Civil Procedure Code; but withoutsuccess. Lastly plaintiff commenced these proceedings for ejectmenton the ground that the defendant was in unlawful possession of thesaid premises, that he be placed and quieted in possession thereof, andfor damages. The defendant inter alia pleaded that he was the tenantof the plaintiff and that Buhary was the plaintiff’s agent. He alsopleaded that till November 1950 he paid rent to Buhary and thereafterto the plaintiff direct and that the plaintiff cannot maintain this action.
The findings of fact of the learned trial Judge are that the defendanthad all along admitted that he was a sub-tenant of Buhary the plaintiff’stenant who sub-divided and let portions of the plaintiff’s premises withouthis knowledge to the defendant and two others. He has rejected thedefendant’s claim that he is a tenant of the plaintiff. In that view ofthe facts the plaintiff is entitled to succeed.
The sole question for deoision in appeal is whether section 26 of theRent Restriction Act is of any avail to the defendant. In the enactmentrelating to rent restriction that was law before the Rent Restriction ActNo. 29 of 1948 there was no provision corresponding to section 9 which,
BASNAYAKE, O.J.—Saibo v. Ameen427
subject to any provision to the contrary in any written contraot oragreement, forbids a tenant of any premises to which the Act appliesto sublet the premises or any part thereof without the prior consent inwriting of the landlord. Any violation of the prohibition imposed bythe section entitles the landlord to institute proceedings for the ejectmentof the tenant and all the sub-tenants. It is common ground that Buharysub-let the premises before 1948. His act of sub-letting w;as thereforenot against the statute and did not permit the landlord to make the.act of sub-letting a ground for the termination of a tenancy under thestatute.
In the case of Ibrahim Saibo v. Mansoor1 it was held by a Bench offive Judges of this Court constituted under section 51 of the CourtsOrdinance that for the purpose of obtaining possession of premises whichBave been sub-let a landlord may adopt one of three courses :
(a) join the sub-tenant in an action against the tenant and therebyobtain a decree for the ejectment of both,
(£>) if he has sued the tenant without joining the sub-tenant he canobtain a subsequent order for ejectment against him undersection 327 of the Civil Procedure Code, and
where the landlord has sued the tenant without joining the sub-tenant he may sue the latter for ejectment in a separate action.
In the present action the plaintiff has adopted the third course.Though it is not so expressly stated the full Bench decision also relatesto a case in which the sub-tenancies were created before the present Act.
The judgment above cited in discussing the position of a sub-tenantgoes on further to state :—
“A few further observations on the position of a sub-tenant underthe common law are material to the questions we have discussed.The position of a monthly sub-tenant whose immediate landlord isa monthly tenant is precarious. The tenant can determine the sub-tenancy by giving notice to quit. But the tenant can also by agreementwith the landlord terminate the tenancy between himself and thelandlord in which event the sole foundation for the sub-tenant’s rightto occupation crumbles at once and he is liable to eviction by thelandlord
A sub-tenant cannot complain that the law gives him no furtherrights of protection because he must be taken to know full well thatin entering into a contract of tenancy with a person who is himselfa tenant, his right to occupation is fragile
To regard the tenant as the agent of the owner vis a vis the sub-tenantor to deem the owner as the landlord of the sub-tenant, as contendedfor by the appellant, would have the effect of completely negativingthe. provisions of the enactment governing the sub-letting of premises.
1 {1953) 54 N. L. R. ill.
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T. S. FERNANDO, J.—Btdatsinghala v. Fernando
The construction of section 26 in the way suggested by learned Counselwould confer on the sub-tenant greater rights than the tenant himselfhas as against the landlord. It would also result in a violation of section 9,which is punishable under section 23, being saved by that section. Sucha construction of the enactment is clearly against its scheme, and Ifind myself unable to assent to such a construction of section 26 moreespecially as it would have the effect of rendering ineffective otherprovisions of the enactment.
It is not necessary for the purpose of this appeal to decide the classof cases to which section 26 would apply.
We think that the learned trial Judge was right when he enteredjudgment for the plaintiff in this case.
The appeal is dismissed with costs.de Silva, J,—-I agree.