027-SLLR-SLLR-1997-2-MAMUJEE-v-MALA.pdf
CA
Mamujee v. Mala
277
MAMUJEE
v.
MALA
COURT OF APPEAL.
DR. RANARAJA, J.
CA.397/92(F).
D. C. MT. LAVINIA.
MAY 15, 1997.
Rent Act No. 7 of 1972 – Section 48 of Act – Business premises or residentialpremises – Tests applicable – Burden of proof.
The plaintiff-appellant instituted action for ejectment of the defendant-respondentfrom the premises in question. The defendant pleaded that the premises aregoverned by the provisions of the Rent Act. The District Court dismissed theplaintiff’s action.
Held:
As the premises is described as "Boutique and residence,” prima facie thepremises could be either a business or residential premises.
The test for deciding whether premises are residential or business, within themeaning of the Rent Act is the user to which the premises are wholly or mainly putby the occupants of the premises for the time being.
The plaintiff was under a duty to produce further evidence that the premiseswere not used wholly or mainly for residence but for conducting business by thedefendant. As an issue whether the premises were excepted was framed by theplaintiff, the burdent lay on him to prove the premises were “excepted.”
APPEAL from judgment of District Court of Colombo.
Cases referred to:
Aloysius v. Pillaipody – [1982] 2 SLR 762.
Jinasena v. The Commercial Investment & Finance Co. Ltd. 1985 1 SLR 238.
Atapattu v. Wickremasinghe -1986 2 CALR 289.
Nalini v. Gunawardena – Sri Skantha LR Vol 2 143.
Wimalaratne v. Linganathan 1984 1 SLR 247.
Gunatilake v. Fernando – 56 NLR 105.
Hussain v. Ratnayake – 69 NLR 421.
278
Sri Lanka Law Reports
[1997] 2 Sri L.R.
Ikram Mohamed with C. A. M. Faiz for Appellant.Gamini Jayasinghe for Respondent.
Cur. adv. vult.
May 15, 1997.
DR. RANARAJA, J.
The plaintiff instituted action for the ejectment of the defendantfrom premises No. 164, Dam Street, Colombo, and recovery ofdamages at the rate of Rs. 3000/- per month from 01.03.88 till vacantpossession thereof is restored to him, on the basis that the contract oftenancy between them was terminated by notice to quit dated22.01.88. The defendant filed answer pleading inter alia, that thepremises were governed by the provisions of the Rent Act. Thelearned District Judge after trial on five issues dismissed the plaintiff'saction. This appeal is from that Judgment.
The main ground of appeal was that the learned Judge was inerror in placing the burden of proving the premises were “Business”premises having an annual value of over Rs. 6000/- and therefore“excepted” from the Rent Act, on the plaintiff.
The plaintiff produced a certified copy of the extract from theassessment register for the year 1986 (P13), which describes thepremises as a "Boutique" having an annual value of Rs. 24,000/-. Thedefendant has also produced a certified copy of the extract from therelevant register (D14), which describes the premises as a “Boutiqueand residence". However the annual value has been altered fromRs. 24,000/- to Rs. 19,200/- operative from 28.01.87. This wasconsequential upon an appeal being preferred by the defendantunder the provisions of the Municipal Councils Ordinance. Thatremained the annual value when the action was instituted in 1988(D14).
Section 48 of the Rent Act defines “Business premises” as anypremises other than residential premises”. “Residential premises”means any premises for the time being occupied wholly or mainly for
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Mamujee v. Mala (Dr. Ranaraja, J.)
279
the purpose of residence”. The description of the property entered inthe register affords prima facie evidence as to whether the propertyhas been assessed as residential premises or as business premises.See: Aloysius v. Pillaipodyl'h Jinasena v. The Commercial Investmentand Finance Co Ltd.<*> However in the instant case the premiseshaving been described in D14 as “Boutique and residence” primafacie the premises could be either a business or residential premises.Sharvananda C.J. in Atapattu. v. Wickremasinghe(3> adverted to theconfusion caused by the use of the words “Business Premises" and“residential premises” in the Rent Act when there is no requirementby law for premises to be assessed as such.
A similar situation arose in Nalini v. Gunawardenaw. Where thepremises were described as an “Ayurvedic Dispensary and house”Samarakoon C.J. held that such a description is equivocal. Althoughthere was evidence to establish that the premises were used both asa residence and a dispensary, it was insufficient to base a findingthat one was the adjunct of the other. In that case the defendant whoclaimed tenancy rights and was personally aware of the manner ofoccupation and was in a position to clinch the issue failed to giveevidence. As a result, it was held that she had failed to discharge theburden of proving the premises were mainly occupied for thepurpose of residence.
Alwis J. in Wimalaratne v. Linganathan(S) looked at the questionfrom another angle when he stated "Business premises are notspecifically defined. But “Business premises” means any premisesthat are not “residential premises”. So that all premises that are notresidential premises are business premises. Having considered thedecisions in Gunatilleka v. Fernando(6), Hussain v. Ratnayakem, AlwisJ, held that the test for deciding whether premises are residentialpremises or business premises within the meaning of the Rent Act isthe user to which the premises are wholly or mainly put by theoccupiers of those premises for the time being.
De Silva, J. in Jinasena {supra) following Aloysius, Gunatilleke andHussein (supra) set out the test as follows: “The test is whether in factpersons reside in the premises or in the majority of the rooms which itcomprises and if so, they are residential premises".
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[1997] 2 Sri L.R.
Extracts of the assessment registers for the years 1951 to 1985describes the premises as a House, first with an annual value ofRs. 500/- increasing to Rs. 925/-. The defendant’s husband has givenevidence that the defendant and members of her family reside in amajor portion of the premises using a small portion for a business,selling soft drinks, bananas, soap and toothpaste, which evidencehas been accepted by the plaintiff.
Issue 1, as to whether the premises were ‘excepted’ was framedby the plaintiff. The burden lay on him to prove the premises were“excepted”. See: Atapattu (supra) where the plaintiff by evidenceestablished that the premises in suit was used to conduct a privatetutory and not occupied for the purpose of residence. In the instantcase the extracts from the assessment register D14 are equivocal.They do not provide prima facie evidence of the premises being“business premises”. The plaintiff therefore was under a duty toproduce further evidence that the premises were not used wholly ormainly for residence but for conducting business by the defendant.The learned District Judge has held that he has failed to dischargethat burden. I see no error in that decision. The judgment is affirmedand the appeal is dismissed without costs.