102-NLR-NLR-V-51-MENDIS-Appellant-and-FERDINANDS-Respondent.pdf
DIAS 8.P.J.—Mendis t>. Ferdinands
427
1950Present: Dias S.P.J.MENDIS, Appellant, and FERDINANDS, RespondentS. G. 186—C. R. Colombo, 17,865
Rent Restriction Act, No. 29 of 2948—Section 13 (I) (r.)—Landlord's requirement ofpremises for occupation by dependent number of his family—Factors to beconsidered by Court—Plaintiff's need must be immediate.
In an action brought under section 13 (1) (« ) of the Rent Restriction Actplaintiff sought to eject a tenant alleging that the promises in question wererequired as a residence for hiB sister.
Held, that the following questions should have been considered by Court:(1) whether the plaintiff's need of the premises was immediate at the date of theinstitution of action, (2) whother the sister of the plaintiff was a destituteperson, (3) whether plaintiff’s sister was herself the owner of a house whereshe could go into residence.
Actions for ejectment brought under section 13 (1) (c) of the Rent RestrictionAct fall into three classes : (1) where the hardship of the landlord is equallybalanced with that of the tenant, the landlord’s claim must prevail; (2) wherethe hardship to the landlord outweighs the hardship to the tenant, the landlord’sclaim must prevail; (3) where the hardship to the tenant outweighs thehardship !o the landlord, the landlord’s action must be dismissed.
^^PPEAL from a judgment of the Court of Requests. Colombo.
A. H. C. de Silva, with MaJiesa Rainant, for defendant appellant.
N. K. Choksy, K.C., with M. P. Spencer, for plaintiff respondent.
Cur. adv. vult.
June 22, 1950. Dias S.P.J.—
In this case the plaintiff respondent sought to eject hi6 tenant, thedefendant appellant, from the premises known as No. 10, DiHenia Road,Borella. The appellant had been given due notice to quit, but hisdefence is that, although he had made every endeavour to obtain a houseto live in, he had been unsuccessful in hi6 quest.
The parties went to trial on the following issues:
Are the premises in question reasonably required by the plaintifffor the occupation as a residence for his sister—Miss Ethel Ferdinands?
Is the said sister a person dependent on the plaintiff within themeaning of section 13 of the Rent Restriction Act ?
This action having been instituted on January 13, 1949, it is the RentRestriction Act, No. 29 of 1948, which applies to this case. That Actcame into force on January 1,1949.
428
I>IAS 8.P.J.—Meiuih v. Ferdinande
Section 13 (I) imposes a fetter on a landlord from seeking to eject histenant by process of law without an authorization in writing by the RentControl Board. One exception to this rule is where the premises are,in the opinion of the Court, reasonably required for occupation as a resi-dence for the landlord or any member of the family of the landlord… . ”The expression “ member of the family ” is defined to mean “ the wife ofthat person, or any son or daughter of his over eighteen years of age, orany parent, brother or sister dependent on him It is the duty of thelandlord to prove facts which bring his case within the exception. Ifhe fails, the bar in section 13 (1) will apply, and, in the absence of awritten authorization from the Board, his action must be dismissed. Theburden of proof on both the issues, therefore, lav on the plaintiff—seeRaheem v. Jayatvardene.l.
It is, I think, settled law, that in cases of this kind it is the duty of theJudge in forming an opinion whether or not the premises are “reasonably”required for occupation as a residence by the landlord or a member of hisfamily, not only to ascertain whether the desire of the landlord is a reason-able one, but also to be satisfied on various other matters like (a) whatalternative occupation is available to the tenant, and [b) the position ofthe tenant—Raheem v.'Jayaimrdene {supra), liamenv.Perera-—and(c)therelative positions of the plaintiff and the defendant—Mohamed v. Satahu-deen a.The question is now settled by the two-Judge decision in
(Junasena v. Sanagaralingam Pillai 4. It is the duty of the Court, notonly to take into consideration the situation of the landlord, but also thatof the tenant, together with any other factors which may be directlyrelevant to the acquisition of the premises by the landlord.
If the case law on this subject is classified, it will be found that they failinto three classes—(1) Cases where the hardship of the landlord and thetenant are equally balanced. In such a situation the landlord’s claimmust prevail—Dt Met v. Piyatism5, Rumen v. Perr.ra {supra) ; (2) Caseswhere the hardship to the landlord outweighs the hardship to the tenant.In such cases, the landlord's claim, obviously, must prevail—John Appu-harny v. Davide, Eyyinona v. David7 ; and (3) Cases where the hardshipto the tenant outweighs the hardship to the landlord. In such cases,the landlord’s action must be dismissed. Examples of this principle arcfurnished by Abeyasekere v. Koch 8, Brito MiUunayagam v. Hewavitarnes.The question in each case depends on which of these three classes thatcase falls into.
The Commissioner of Requests found that the plaintiff is at presentliving in a large bungalow in Gower Street and of which he is the owner.As the plaintiff’s wife and child are in Britain and will be there for overtwo years, the plaintiff proposes to rent his house, and move into a smallerhouse belonging to him ; but as that house only has two rooms, he willnot be able to have his sister to stay with him, as she is doing at present.The Commissioner says that the reason for the plaintiff closing clown his
> {1944) 45 N. L. R. 313.
{1944) 46 N. L. R. 133.
* {1945) 46 N. L. R. 166.4 {1948) 49 N. L. JR. 413.
»{1948) 39 C. L. W. 63.i {1945) 47 N. L. R. 36.
7 {1946) 22 C. L. Rec. 40.H {1949) 41 C. 1J. H', 31.
{1950) 51 A. L. R. 237.
DIAS 8.P.J.—Mendis v. Ferdinands
429
house in Gower Street is due to financial reasons, and that it would not bepossible for him to run that big house and also to remit to his wife andchild in England approximately Rg. 1,450 a month. The Commissioner,however, either has failed to refer to or has overlooked the fact thatthe sister of the plaintiff is not a destitute person who is dependent onothers. No doubt, she is the only daughter in a family of nine or tenchildren, but on her mother’s death, she inherited 1 /10th of the estate.There is evidence that the estate duty on the mother’s estate came toRs. 4,000 or Rs. 5,000 and for purposes of administration someColombo house property had to be sold for Rs. 20,000. Furthermore,theCoramissionerhasfailedtotakcinto account the fact that the plaintiff’ssister is the owner of a house in Colombo called ‘‘ Brookside ” which sheinherited from her father and which she has rented out for Rs. 118per mensem. If this lady requires a place to reside in, all she has to dois to terminate that tenancy and go into residence there. Her reason fornot doing this is that that rent is her only source of income. It-scemshardthat the defendant, whom the Commissioner holds has unsuccessfullydone everything in his power to obtain a housetolivein, should be throw non the streets in order to release the premises in question to the plaintiff’ssister who while owning a house,of her own does not choose to occupy it.Furthermore, the sister is living with the plaintiff in his large Gower Streethouse and is keeping house for her brother. As pointed out by mybrother Basnayake in the unreported case *S 0. JOS C. Ji. Kandy SS42(S.C.M. May 3, 1950)* the plaintiff’s need of the premises should be“ immediate ", that is to say, at the date the action in ejectment wasfiled. In the present case, as found by the Commissioner, the plaintiffproposes to rent his Gowrer Street house and go to reside in a smaller house”.The rights of the parties must be determined as at the date the action wasfiled. At that date the plaintiff’s intention to rent his Gow'er Street housewas prospective and might never materialise. Until then there is noneed for the sister to require a house of her own.
There is no question but that both the plaintiff and the. defendant arestating w'hat is true. In such circumstances, an appellate tribunal isplaced in no less advantageous a position than the Court below to arriveat a correct conclusion—Abeyaschere v. Koch, {supra).
The Commissioner of Requests says “ I have no doubt that the defend-ant has made efforts to secure a bungalow. The need of the defendantappears to me to be as great as that, of the plaintiff—but the plaintiffbeing the owner, his need must prevail over that of the defendant”. Forthat reason he has answered both issues in the affirmative and enteredjudgment for the plaintiff. With great respect, I am unable to agree.This is not a case where the hardship caused to the defendant by havingto leave the premises can be said to be equally balanced by the hardshipcaused to the plaintiff or his sistor by their not being able to get possessionof the house. If the facts are considered without prejudice, the defend-ant’s need far exceeds that of the plaintiff or his sister. Their need forthis house is not immediate. The lady is living with the plaintiff, and shehas several other brothers who can give her a habitation. She owns, herown house, but has taken no steps to eject her tenant so that she may• See (1950) SI X.fy.H. SSI—E»L
430
WINDHAM J.—Uiso Menika v. Punchiamma
occupy it herself. She cannot by any stretch of the imagination bedescribed as being a dependant of the plaintiff. She is quite an indepen-dent person, with property of her own and an income of her own. Thefact that the Commissioner without any agreement between the partiesthought fit to direct that the writ of ejectment should not issue for twomonths shows that subsconscioasly, perhaps, he felt- that he was doingan injustice to the defendant.
I set aside the judgment and decree appealed against, and dismiss theplaintiff’s action with costs both here and below'.
Appeal allowed.