045-NLR-NLR-V-59-M.-V.-FERNANDO-et-al.-Appellants-and-REUBEN-PERERA-et-al.-Respondents.pdf
1GG
II. Jv. G. FKRNANDO, ,T .—Fernando v. Reuben Per era
1957Present:H. N. G. Fernando, J.
M. V. FERNANDO et al„ Appellants, and REUBEN PERERA el at .,
Respondents
• S. G. 62— C. R. Colombo, 50,351
Rent Restriction Act—littsiticss premises—“ Reasonable requirement ”—Tenantnot a citizen of Ceylon—Expiration of his temporary residence permit—Is il-a factor to be considered ?
YVTion considering under the Rent Restriction Act whether or not it isreasonable for tho tenant to insist on tho continuance of his tenancy for tho■ purposes of a business which ho has carried on at tho premisos in question, thecireumstanco that tho tonant is not a citizen of Coylon and that his temporaryrosidenco permit lias expired should not be taken into nccourt if there is noprovision of law which prohibits non-rosidonts from carrying on business inCoylon and in tho absence of evidence that it is necossnry for tho tenant- toreside in Coylon in order to carry on’tho business..
•^^-PPEAL from a judgment of the Court of Requests, Colombo.
II. V. Percra, Q.G., with G. Chellappah and A. S. Vanigasooriyar,for tho defendants-appellants.'
H. 1J'. Jnyewardene, Q.G., with G. G. Wecramantry and E. 7>. Vanni-tamby, for the plaintiffs-respondents.-
– •Gur. adv. rail.
November 2S, 1957. H. N. G. Fehxasdo, J.—.
Decree for ejectment of the defendants has been entered on the groundthat the plaintiffs who are the landlords of the premises in. question,No. 136 Dam Street^ Colombo, reasonably require'the premises for thepurposes of their business. The findings of the learned trial Judge in_-regartl to the requirements of the plaintiffs arc as follows . J.
They have carried on business for about twenty years ns dealers, in.rubber and other Ceylon produce but are not direct shippers. –
H. 14. G. FERNANDO, J.—Fernando v. Reuben Pcrera
107
If the premises in suit can be occupied by the plaintiffs they willprobably be able to obtain a licence from the Rubber Commis-sioner to export rubber as shippers. Their application for sucha licence was refused on the ground that the premises they nowoccupy are not sufficiently large. •_
On these findings I agree with the learned Commissioner that the plain-tiffs will be able to launch out into the new business of shipping rubberif they succeed in the action, and that their desire to so launch out is areasonable oiie.
The position of the defendants is that they are partners in a businessin bone manure which their father had started several years ago and whichthey have carried on after the death of their father in 19-47. The effectof the Zoning By-Laws is that at present a business in bone manure canonly be carried on in Mattakuliva but that the defendants, since they hada business in Dam Street prior to 194S, can continue the same businessin the same premises notwithstanding the Zoning By-Laws. Evictionfrom these premises might well compel the defendants to stop business. .If these are the only matters which required consideration, it seems tome that considerable hardship would be caused to the defendants if they .have now to vacate these premises. One further matter which thelearned Commissioner took into consideration against them is that theylet out a portion of No. 136 to some other persons. In paying regard tothis matter the Commissioner has ignored the fact that the portion sub-letmust be very small indeed compared to that which the defendants conti-nue to occupy. Whereas No. 136 has an annual value of Rs. 1,200 andthe rates on it are Rs. 90 per quarter, the sub let portion has an annualvalue of Rs. GO, the quarterly rates being Rs. 4'50. There was clearly amisdirection in holding that the sub-letting indicates that the defendantscan well afford to vacate No. 136.
A further matter taken into account by the Commissioner is that thedefendants are not citizens of Ceylon, the 2nd defendant being non-residentin Ceylon, and the 1st defendant a holder of a temporary residence permitwhich has now expired. Counsel for the plaintiff has argued that sincethe permit has expired, and since the 1st defendant is accordingly a person •who is committing an offence under the Immigrants and Emigrants Actby continuing to remain in Ceylon, it would be contrary to public policyto accord to him the benefits conferred on tenants by the Rent RestrictionAct. It is unnecessary for me to consider whether this argument wouldavail against a defendant who invokes the protection of the Act in orderto continue in possession of a place of residence. But I was not referredto any provision of law wliich prohibits non-residents from carrying on 'business in Ceylon and there is no evidence that it is necessary for the 1stdefendant to reside in Ceylon in order to carry on his present business.
The circumstance that the 1st defendant is probably a person yhosoresidence in Ceylon constitutes an offence under .the Immigrants andEmigrants Act was therefore improperly taken into account in considering
1C3-.<H. N. G. FERNANDO, J.—Fernando v. Reuben Pefera .
whether or not it is reasonable for the defendants to insist on the conti-nuance of their tenancy for the purposes of the business which has formany years been carried on at the premises in question. .
I am satisfied that the hardship which the plaintiff ruay suffer throughinability to open a new business is not comparable to the sacrifice whichthe defendants will be compelled to make if they are now ejected.
The appeal is allowed and the plaintiffs’ action is dismissed with costsin both Courts.'
Ajijieul allowed.