Sri Lanka Law Reports
(1981) 1 S. L. R.
SAMARAWICKREMA J, ISMAIL J. AND WANASUNDERA J.
S. C. APPEAL 39/80
A. APPLICATION NO. 45/80
C. COLOMBO NO. 563 REOCTOBER 30 & 31.1980.
LANDLORD AND TENANT — Action for ejectment under S. 22(1 A) of Rent Act No.7of 1972 — S. 22(1 )(bb) of Rent ACT — Essentiality of pleading that landlord is a ownerof a single house.
Landlord and Tenant— Action for ejectment under S. 2211 A) of Rent Act No. 7 of 1972.S. 22(1 )(bb) of Rent Act — Essentiality of pleading that landlord is a owner of a singlehouse.
the landlord should be the owner of only a single house
the landlord should have caused notice of the action or proceeding tobe served on the Commissioner of National Housing.
An action under S. 22(1) (bb) can only be maintained if the premises had beenlet to the tenant prior to the coming into operation of the Rent Act i.e. 1.3.1972 and itwas the duty of the trial judge to determine this. It was also necessary for the Court tohave considered whether the defendant became a statutory tenant after the death of hisfather the original tenant or whether he was a tenant on a fresh tenancy. Issues on thesetwo matters should be framed by the Court as the determination of the case dependedon them.
Case refered to: .
(1) Daryanani v The Eastern Silk Emporium 64 NLR 629.
Appeal from judgment of the Court of Appeal.
A. K. Premadasa with T. B. Dillimuni and C. H. A. Suraweera for theplaintiff appellant.
Waiter Jayawardene Q.C. with P. Somatilakan and M. Mahendran for the
Miriam Lawrence v. Arno Ida
The Plaintiff is the landlord of premises No. 129, PickeringRoad, Colombo 13 and the defendant is in occupation of thepremises as the tenant of the plaintiff on a monthly rental ofRs. 100/-. No question of arrears of rent arises for determinationin this case. The plaintiff pleads that on 27.2.78 she had throughher Attorney-at-law, given notice to the defendant to quit anddeliver peaceful vacant possession of the premises in question on31.8.78 and the defendant continues to be in unlawful occupationof these premises. The plaintiff bases this action on the provisionsof Section 22(1 )(bb) of Rent Act No. 7 of 1972 as amended byLaw No. 10 Of 1977 and states that the premises in suit are reaso-nably required for her use and occupation as a residence for herselfand members of her family.
The defendant in his answer while denying the several avermentsip the plaint has taken up the position that the defendant's fatherbecame the tenant of the premises in suit in 1914 and continued tobe the tenant of the premises until his death on 31st August 1972and that the defendant became the tenant from 14th September1972 and therefore Law No. 10 of 1977 would have no applicationin view of the facts of this case. The defendant further pleaded thatthe plaintiff and her husband have been provided with residentialquarters by the Government and therefore there was no presentneed for the plaintiff to come into occupation of the premises insuit and, takes up the position that the plaint does not disclose avalid cause of action for ejectment of the defendant
At the outset of the trial. Counsel appearing for the defendanthad taken up the position that this plaint could not be entertainedbecause the plaintiff had not specifically pleaded that he is theowner of a single house, since it was the specific requirement of thelaw under Law No. 10 of 1977. He referred to sectibn 22(1A) andstated that unless there was this specif ic.pleading it would be a posi-tive bar to the plaintiff to invoke the provisions of section 22 ofLaw No. 10 of 1977. He had addressed the Court at length — videpages 175 to 177 and the Court in its order had taken up the posi-law that the requirement under the Rent (Amendment) Law No. 10of 1977 that the plaintiff is notthe owner of more than one houseis a matter of evidence and is not a matter which need have-beenpleaded. Section 22(1 A) of Rent (Amendment) Law No. 10 of 1977reads:
Sri Lanka Law Reports
(1981) 1 S. L. R.
"(1A) Notwithstanding anything in sub-section (1), the Landlordof any premises referred to in paragraph (bb) of that sub-sectionshall not be entitled to institute any action or proceedings for theejectment of the tenant of such premises on the ground that suchpremises are required for occupation as a residence for himself orany member of his family, if such iandlord is the owner of morethan one residential premises, and unless such landlord has causednotice of such action or proceedings to be served on the Commissio-ner of National Housing."
It will be noted that under sub-section (1A) there had to betwo essential pre-requisites before institution of any action orproceedings for ejectment of a tenant There are, firstly, thatthe said landlord will not be entitled to institute any action orproceedings for ejectment of a tenant if he is the owner of morethat one residential premises and secondly, the said landlordhad caused notice of such action or proceedings to be served on theCommissioner of National Housing. The plaintiff had compliedwith the latter of these requisites for he states in paragraph (7)of the plaint that he has sent a copy of the notice to quit to theCommissioner of National Housing. But there is no averment at allin the plaint that he is not the owner of more than one residentialpremises or that he is the owner of only one residential premises.
It will be seen from the proceedings that the plaintiff's husbandwho gave evidence on behalf of the plaintiff had been cross-examined at great length for several days and in the course of thiscross-examination he had been repeatedly examined and hisattention had been focussed to the question whether the plaintiffwas the owner of a single residential house or whether she ownsmore than one residential house. When one reads the entirety ofthe plaintiffs evidence an analysis of the evidence indicates thathe is unable to state with authority that the plaintiff is not theowner of more than one residential premises. It appears to me thatthis question of owning only one residential premises isfundamental to the invoking of the provisions of Law No. 10 of1977 and is a matter that should have been pleaded in the plaintin order to enable the plaintiff to invoke the provisions of thisAct. Though the attention of the Trial Judge had been drawn tothis at the outset of the trial, the learned Trial Judge had notchosen either to reject the plaint or return the plaint for amend-ment but had contended himself with the bare assertion that thiswas only a matter of evidence.
To invoke the provisions of Law No. 10 of 1977, it is anessential requisite that the person should be possessed of only one
Miriam Lawrence v. Arnoida
residential premises; and it appears to me that if this is clearlypleaded only, would the Court have jurisdiction to entertain andproceed with the case instituted under the provisions of thisLaw. Therefore it appears to me that objection cannot be dis-missed by purely contending that it is only a matter of evidencewhen ex facie it is a fundamental requirement under the law.
Since a large volume of evidence had been admitted on thisaspect of the matter and parties had placed in the forefront of thiscase the importance of a decision on this point, namely whetherthe plaintiff is the owner of only one residential premises, I am ofthe view that it was necessary, even if the parties failed to do so,for Court to have in the course of the proceedings to have raisedissues to bring into focus the existence or non-existence of therequirements necessary for the maintenance of this action in termsof Section 22(1A). There could be no doubt that the questionwhether the plaintiff was the owner of only one residential premi-ses has been in the forefront of this case right throughout theproceedings. Attention of the plaintiff's husband was also drawnto the other question namely, as to when the plaintiff became thelandlord of the premises, in suit. Issue No. 7 reads
"Did the defendant become the tenant of the
plaintiff as from 1. 9. 72?"
Issue No. 10 has been framed :
"If any one or more of the issues are answered in favour of the
defendant, could the plaintiff have maintained this action ?"
The learned District Judge had answered issue (7) in theaffirmative, that is, in favour of the defendant but in answeringissue (10) he had stated "does, not arise". Section 22(1) (bb) ofAct No. 7 of 1972 clearly indicates that an action under this lawcan only be maintained if the premises had been let to the tenantprior to the date of commencement of the Act. The Act had comeinto operation on 1.3. 1972. Therefore, it was the duty of theTrial Judge to have determined whether the premises had beenlet prior to 1. 3. 72 or subsequent to that date. If the premiseshad been let after that date clearly the provisions of the Actwould not apply.
It is also in evidence that the defendant's father was the originaltenant of this premises since 1914 and the defendant had becomethe tenant of the premises only after the father's death in August1972. Therefore, it was necessary for Court to have considered
Sri Lanka Law Reports
(1981) 1 S. L. R.
whether the defendant became a statutory tenant after the deathof his father or whether there was a fresh contract of tenancybetween the plaintiff and the defendant. No issues have beenframed to this effect and therefore there is no determination asto whether the defendant was a statutory tenant succeding to hisfather's tenancy of the premises in suit on the death of the fatherunder the provisions of the Rent Restriction Ordinance or whetherhe became the tenant on a fresh contract of tenancy.
Section 93 of the Civil Procedure Code states that a Court shallhave full power of amending at its discretion and upon such termsas to costs etc. all pleadings and processes in an action by way ofaddition, alteration or omission. The limitation with regard tothe scope of the amendment is contained in the proviso to Section45 of the Civil Procedure Code.
In the case reported in 64 NLR 529 it was held that in exercis-ing the discretion vested in Court by Section 93 of the CivilProcedure Code regarding amendment of a plaint, two main rulesemerged from decided cases, (1) amendment should be allowedif it is necessary for the purpose of raising the real questionbetween the parties and (2) an amendment which works aninjustice to the other side would not be allowed. In the casereported in Al R 1957 S. C. 357, it was stated that
"Circumstances are a factor to be taken into account in theexercise of the discretion as to whether amendment be orderedand does not affect the power of the Court to order it after. what is required in the interests of Justice."
In the case reported in 64 NLR para 25 it was stated obiter
"The Civil Procedure Code gives in section 93 ample power toamend pleadings. Moreover, by virtue of section 1416 of theCode, a case must be tried upon the 'issues on which the rightdecision of the case appears to Court to depend,' and it iswell settled that the framing of such issues is not restricted bythe pleadings."
Under Section 146 of the Civil Procedure Code the ultimateresponsibility of framing issues is cast upon Court and for thatpurpose the Court has to ascertain upon what material propositionof fact or of law the parties are-at variance and thereupon recordissues upon which the right decision of the case appears to theCourt to depend.
Miriam Lawrence v. Arnolds
A large volume of evidence had been led in respect of thesetwo matters and there could be no doubt that from theevidence that the real issues in this case which had arisen fordetermination are in respect of these two legal positions on whichno issue had been framed. I accordingly set aside the judgment ofthe Court of Appeal and remit this case for further trial in theoriginal Court on the following additional issues only in additionto the issues already framed in this case.
Answers to issues 1 to' 14 already given will stand and will notbe affected by the four additional issues 15 to 18
Is the plaintiff the owner of more than one residential pre-mises ?
If this issue is answered in the affirmative, can the plaintiffmaintain this action in terms of paragraph 22(1 A) of RentAct No. 7 of 1972 as amended by Rent Amendment LawNo. 10 of 1977 ?
Did the defendant become the tenant of the Plaintiff asfrom 1. 9. 72 on a fresh contract of tenancy ?
If so, can the plaintiff have and maintain this action underthe provisions of the Rent Act No. 7 of 1972 as amendedby Law No. 10 of 1977 ?
Parties would be at liberty to lead further evidence on mattersraised on these issues only. The order for costs made by the DistrictCourt and Court of Appeal are set aside and I make order thatall costs in this action be costs in the cause.
SAMARAWICKREMA, J. I agree.
WANASUNDERA, J. I agree.
Appeal Allowed and case remitted for trial on additional issuesframed by Court