025-SLLR-SLLR-2005-V-3-MARKET-MAKERS-PRIVATE-LTD.-D.-N.-PERERA.pdf
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MARKET MAKERS (PRIVATE) LTD.vs.D. N. PERERACOURT OF APPEALSOMAWANSA, J, (P/CA) ANDWIMALACHANDRA, J.
CALA 169/05 (LG)
DC COLOMBO 727/SPL.MAY 30,2005.
Contract of tenancy – Best test – Best evidence – Proof of payment of rent -Rent receipts – Prima facie proof – Interference with tenants’ enjoyment ofproperty by owner / landlord – Termination by illegal methods.
The plaintiff-appellant (sub tenant) entered into occupation of the premises inquestion as the tenant of the defendant-respondent. The defendant-respondenthad forcibly threatened the plaintiffs employees and ordered them to vacatethe premises and had also disconnected the electricity/water supply in anattempt to evict the plaintiff appellant illegally and unlawfully from the premisesin question.
The plaintiff appellant instituted action seeking a declaration that the plaintiff isentitled to occupy the premises in question and for a declaration that theplaintiff is entitled to have electricity/water supply to the premises occupied bythe plaintiff. The enjoining order prayed for was refused and only notice of aninterim injunction issued on the ground that there was no written agreementbetween the plaintiff and the defendant with regard to a contract of tenancy.The plaintiff had produced rent receipts which had been signed by the defendant,the defendant’s address appears on the rent receipts, showing that the receiptshad been issued by the defendant.
HELD:
(1) The best test for establishing tenancy is proof of the payment of rent.The best evidence of the payment of rent is the rent receipts. There isprima facie proof that the plaintiff is the monthly tenant of the defendant.The rent receipts show that the rent had been paid to the defendantThe defendant had acknowledged the receipt of payments by signingthe rent receipts.
CA
Market Makers (Private) Ltd. is. D. N. Perera
(Wimalachandra, J.)
133
(2) The landlord has a duty not to interfere with the tenant’s enjoyment ofthe property. Even if the plaintiff is the subtenant of the defendant thedefendant has no right to interfere with his tenant’s enjoyment of theproperty. He has no right to disconnect the supply of electricity/water,.He must resort to legal methods recognized by law to terminate thetenancy.
APPLICATION for leave to appeal with leave being granted.
Case referred to:Jayawardane vs. Wanigasekera and Others 1985 1 Sri LR 125
Nihal Fernando, P. C. with Rohan Dunuwila for plaintiff appellant.
Faizer Musthapha for defendant-respondent.
Cur.adv.vult.
June 14, 2005.
WIMALACHANDRA, J.This is an application for leave to appeal from the order of the DistrictJudge of Colombo dated 10.05.2005. By that order the learned Judgerefused to grant the enjoining order prayed for, pending the inquiry into theapplication for an interim injunction.
Briefly, the facts relevant to this application are as follows:
The plaintiff-petitioner (plaintiff) alleged that it entered into occupationof the premises No. 353, R. A. de Mel Mawatha, Colombo 03 as thetenant of the defendant-respondent (defendant) on or about April 2001and occupied the ground floor of the premises No. 353 and No. 353-1/1, the entirety of the upper floor. The plaintiff stated that it paid Rs.
as the monthly rent and continued to pay upto 1st April 2005.On 1st April 2005 the defendant with two others had entered thepremises occupied by the plaintiff, forcibly threatened the plaintiff’semployees and ordered them to vacate the premises. On the same daythe defendant had disconnected the electricity and water supply to thearea occupied by the plaintiff in an attempt to evict the plaintiff illegallyand unlawfully from the said premises. The plaintiff had thereafter
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instituted action in the District Court for a declaration that the plaintiff isentitled to occupy the area highlighted in pink in the sketch marked “A"with the plaint of the said premises described in the schedule to theplaint and for a declaration that the plaintiff is entitled to have electricityand water supply to the area occupied by the plaintiff, highlighted inpink in the sketch marked “A”. The plaintiff has also sought a permanentinjunction in terms of paragraph ‘C’ of the prayer to the plaint, and aninterim injunction and an enjoining order in terms of paragraphs ‘d’ and‘c’ of the prayer to the plaint.
The plaintiff had supported the application before the District Judge,inter paries, for an enjoining order pending the inquiry into the applicationfor an interim injunction. The District Judge by order dated 10.05.2005 hadrefused to issue an enjoining order but issued notice of an interim injunctionand summons on the defendant. It is against this order, refusing to issuean enjoining order as prayed for in the plaint, the plaintiff has filed thisapplication for leave to appeal.
The learned District Judge refused to grant an enjoining order mainly onthe ground that there was no written agreement between the plaintiff andthe defendant, with regard to a contract of tenancy. The plaintiff producedthe rent receipts marked ‘B1’ to ‘B9’. The rent receipts had been signedby the defendant and the defendant’s address is in the rent receipts,showing that the said rent receipts had been issued by the defendant. [Acheque on account of six months rent from 01.04.2005 to 30.09.2005 hadbeen sent by the plaintiff to the defendant, with a covering letter dated
(vide-documents marked ‘C’ and ‘C1 ’ annexed to the petition).The defendant had accepted the said cheque as damages].
The learned counsel for the defendant submitted that there is no avermentin the plaint as regards to the date of the commencement of the occupationby the plaintiff and also there is no averment that the plaintiff was themonthly tenant of the defendant. In paragraph six of the plaint, the plaintiffstates that the plaintiff company entered into an agreement with thedefendant to lease the area highlighted in pink in the sketch annexedmarked ‘A’ with the plaint on the following terms, (a) monthly rent to beRs. 95,000, (b) the plaintiff to receive and pay the electricity bill in full andobtain a reimbursement of 35% of the amounts of the bills from thedefendant on account of its usage of electricity, (c) the plaintiff to receive
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Market Makers (Private) Ltd. vs. D. N. Perera
(Wimalachandra, J.)
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and pay the water bills in full for the entire building. The Plaintiff produced,annexed to the petition, copies of rent receipts marked ‘BT to ‘B10’. On30/03/2005 the plaintiff had forwarded cheque No. 408668 dated 30.03.2005of Public Bank with a covering letter to the defendant being the rent for thepremises No. 353 and 3531/1. R.A.De Mel Mawatha, Colombo 03. Theamount in the cheque was the rent for six months from April 2005 toSeptember, at the rate of Rs. 95,000 per month for the said premises. It isto be noted that there is an endorsement in the letter marked “C” that thecheque had been received by D. Perera, the defendant. The documentmarked “C2” is a copy of the relevant page of the bank statement of theplaintiff’s current account, which shows that the said cheque had beenpresented for payment and the defendant had received payment from theplaintiff’s bank.
In the case of Jayawardena vs. Wanigasekera and others MoonamalleJ. stated-
“The best test for establishing a tenancy is proof of.the payment of rent. The best evidence of the paymentof rent is the rent receipts.”
In the instant case the plaintiff produced the rent receipts signed by thedefendant. In applying the test laid down by Moonamalle, J. in Jayawardenavs. Wanigasekera and others there is prima facie proof that the plaintiff isthe monthly tenant of the defendant.
The learned Counsel for the defendant submitted that the defendantwas only a tenant and that the owner of the premises was one Christy inwhose name the electricity bills were paid. The learned counsel furthersubmitted that in any event the tenancy was with one Jayaseelan, a formerdirector of the plaintiff company. In answer to this allegation the plaintiffcontended that the said Jayaseelan negotiated the tenancy on behalf ofthe plaintiff-company which is borne out by the letter marked ‘J’ annexedto the plaint. However these are matters that have to be proved at the trial.It must be noted that there is prima-facie proof that the plaintiff is themonthly tenant of the defendant as stated above. The rent receipts producedby the plaintiff show that the rent had been paid to the defendant and thedefendant had acknowledged the receipt of payments by signing the rentreceipts.
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The plaintiff stated that on 01.04.2005 the defendant had wrongfullydisconnected the electricity and water supply to the rented premisesoccupied by the plaintiff bearing assessment No. 353 and 353-1/1. R. A.de Mel Mawatha, Colombo 03. The landlord has no right to interfere withthe peaceful occupation of the rented out premises.
W. Thambiah in his book “Landlord and Tenant in Ceylon”, 1 st edition,
• at page 81 states thus:
“The landlord has a duty not to interfere with the tenant’senjoyment of the property.”The plaintiff stated that he has no contract or agreement with the ownerbut only with the defendant. In the circumstances the allegation made bythe defendant that the plaintiff deliberately failed to disclose the owner ofthe premises is not a material fact. The non-disclosure of the name of theowner of the premises will not affect the merits of the plaintiff’s case as theplaintiff’s position is that he obtained the premises in question from thedefendant and he paid the rent to the defendant, and not to the owner ofthe premises.
As regard to the legal position where there is a tenant and a sub-tenant, G. L. Peiris in his book “The Law of Properly in Sri Lanka,” VolumeTwo, “Land Lord and Tenant” at page 347 states as follows:
“Where a tenancy and sub-tenancy are both seen to coexist, therent under the main tenancy is payable by the tenant to the landlord,while the rent under the sub tenancy is payabe by the sub-tenant to thetenant. The proper view is that each of these co-existing contractsremains in force until it is terminated by due notice or some othermanner recognized by law”
In these circumstances, even if the plaintiff is the sub-tenant of thedefendant, the defendant has no right to interfere with his tenant’s enj.. ymentof the property. The defendant has no right to disconnect the supply ofelectricity and water. The defendant must resort to legal methodsrecognized by law, to terminate the tenancy.
CA
Market Makers (Private) Ltd. vs. O. N. Perera
(Wimalachandra, J.)
137
As regards the balance of convenience, if the enjoining order is notgranted pending the determination of the application for an injunction, thedefendant would resort to evict the plaintiff by means not recognised bylaw. It appears that the plaintiff has been paying rent to the defendant andhas even paid rent in advance for the period of April 2005 to September2005 as evident by documents marked ‘C’, ‘C1 ’ and ‘C2”.
On a consideration of the totality of the documentary evidence and thesubmissions made by the counsel it appears to me that the learned DistrictJudge has arrived at a wrong conclusion that there is no contract of tenancybetween the plaintiff and the defendant as there is no written agreementbetween them. As Justice Moonamalle, pointed out in Jayawardenevs. Wanigasekera (supra) the best test for establishing a tenancy is proofof the payment of rent. The best evidence of the payment of rent is the rentreceipts. In the instant case rent receipts signed by the defendant wereproduced and there is reference to the payment of rent.
For these reasons, leave to appeal is granted from the order of thelearned District Judge dated 10.05.2005 and for the same reasons weallow the appeal and set aside the aforesaid order of the learned DistrictJudge and grant the enjoining order as prayed for in prayer ‘e’ of the prayerto the plaint. We direct the learned District Judge to inquire into theapplication for an interim injunction as prayed for in the piaint. The appellantis entitled to recover the costs of this appeal.
Somawansa, J. (P/CA) — / agree.
Appeal allowed.Enjoining order granted.