057-NLR-NLR-V-46-MOHAMED-Appellant-and-SALAHUDEEN-Respondent.pdf
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K08E J.—Mohamed and Salahudeen.
1948Present: Rose J.
MOHAMED, Appellant, and SALAHUDEEN, Respondent.
99—C. Ii. Kandy, 33,791.
Bent restriction—Premises required by landlord—Duty of court to considerHie relative position of the parties—Ordinance No. 60 of 1943, s. 8 (e).
To an action for ejectment nnder the Bent Restriction Ordinance,-where the question is whether the premises are reasonably requiredfor occupation by the landlord, it is the doty of the court to considerthe relative position of the parties.
^ PPEAL from a judgment of the Commissioner of Requests, Kandy.
N. Nadarajah, K.O. (wit.i him H. W. Thambiah), for the defendant,appellant./
A. Rajapakse, K.C. (with him C. E. S. Perera), for the plaintiff,respondent.j
/Cur. adv. vult. .
February 13, 1945. Rose J.—
This appeal concerns the interpretation to be given to section 8 (e)of the Rent Restriction Ordinance of 1942. Counsel for the appellantargued that the learned Judge, as would seem to be apparent from hisjudgment, only considered the matter from the point of view of therequirements of the plaintiff, the landlord.
Now Counsel for the plaintiff says that having regard to the wordingof this particular sub-section, which it is to be noted, is different from theEnglish Act of 1920 from which most of these Colonial Ordinances derive,the only element that the Court need take into consideration is thelandlord’s aspect of the matter. There is much to be said for thatcontention as a legal argument but it seems to me that as far as thisquestion is concerned the matter is covered by authority. In the case ofAbeyewardene v. Nicolle1 Soertsz J. appears to have considered this verypoint and to have come to the conclusion that owing to the presence ofthe words “ in the opinion of the court ” appearing before the words“ reasonably required ” it is the duty of this court to have regard to therelative position of the parties; and that decision would appear to bein accord with certain obiter dicta delivered in the case of Raheem v. Jaya-wardene reported at page 313 of the same volume of the law reports.
That being so it seems to me that the learned Judge in this case shouldhave an opportunity of considering the relative position of the parties.
Counsel at the Bar now informs me that the Judge who tried this caseis no longer available at that station. It is therefore perhaps desirablethat the case should be remitted for retrial de novo. In all the circum-stances I consider that the fair order is that the costs of this appeal willbe in the cause.
Sent back for retrial.
1 45 N. L. R. 350.