124-NLR-NLR-V-60-NANAYAKKARA-Appellant-and-PABLIS-SILVA-Respondent.pdf
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BASNAYAKE, C.J.—Nanayaklcara v. Pablis Silva
1959Present: Basnayake, C.J.
NANAYAKKARA, Appellant, and PABLIS SILVA, Respondent8. C. 67—C. R. Colombo, 66,188
Rent Restriction Act, No. 29 of 1948—Section 13 (1) (c)—Premises required bylandlord to commence a new business—Maintainability of action inejectment.
A landlord who has no trade or business in existence is not entitled to main-tain an action in ejectment in terms of section 13 (1) (c) of the Kent RestrictionAct on the ground that the premises are required by him for the purpose ofcommencing a new business.
Andree v. De Fonseka (1950) 51 N. L. R. 213, not followed.
A
■CVPPEAL from a judgment of the Court of Requests, Colombo.
JET. W. Jayewardene, Q.C., with S. L. D. Bandaranayake and L. C.Seneviratne, for Defendant-Appellant.
H. Wanigaiunga, with A. K. Premadasa and R. D. B. Jayasekera,for Plaintiff-Respondent.
Cur. adv. mdt.
May 29, 1959. Basnayake, C.J.—
The plaintiff-respondent (hereinafter referred to as the plaintiff)is the owner of premises No. 154 Hill Street, Dehiwela, also describedas 154 Karagampitiya, Dehiwela. The defendant-appellant (herein-after referred to as the defendant) is his tenant. The plaintiff avers inhis plaint “ the premises are reasonably required for occupation of theplaintiff and his family as well as for the puiposes of the business of the
1 (1956) A. C. 185.
BASNAYAKE, C.J.—Nanayakkara v. Pablis Silva
491
plaintiff within the meaning of section 13 (1) (c) of the Rent Restric-tion Act But the question whether the premises are .reasonablyrequired for the occupation of the plaintiff and his family was not raisedas an issue nor was evidence offered on the point. Perhaps the plaintiffabandoned the claim that he wanted these premises for his occupationas he is the owner of several houses which he has given on rent and livesin a house of his own. The main issue before the Court was whetherthe premises were reasonably required by the plaintiff for the purposeof his business. The plaintiff is 64 years old, is married and has fourchildren. His daughter is married and his eldest son is twenty-fouryears old. His other children are still in school. The plaintiff is amechanic and was first employed in the Navy. After three years’service he joined the South Western Bus Company. About one and ahalf years before the institution of the action he left that employment andbecame a watch repairer. He has given up that occupation owing tofailing eye sight and was at the date on which he gave evidence withoutan occupation. He asserts that he wants to run a tea kiosk in thesepremises with his eldest son. Before 1943 he ran a tea kiosk and sold potsand pans in these premises but he gave up that business and convertedthese premises at a cost of Rs. 7,000 into a bakery and leased themfor ten years from 11th September 1943 at a rent of Rs. 30 to oneGurusinghe who carried on therein the business of a baker. WhileGurusinghe’s lease was subsisting the defendant came into occupationof the premises as his sub-tenant and remained there with the plaintiff’sknowledge. On 30th March 1951 about two years before the expiryof Gurusinghe’s lease the plaintiff and his wife by an instrument nota-rially attested agreed to lease these premises to the defendant at a monthlyrent of Rs. 50 for a period of ten years commencing on 12th September1953, the day after the expiry of the lease to Gurusinghe then current.
It is common ground that the agreement to lease the premises to thedefendant was given in consideration of an oral promise to give theplaintiff a sum of Rs. 8,000 to enable him to pay off the debt he incurredin 1943 for the improvements he effected to the building. After the’execution of the agreement the defendant appears to have put off payingthe sum of Rs. 8,000 on various pretexts, although the plaintiff kept onpressing him. Finally the plaintiff forced the defendant to give him thefollowing written undertaking:—
“ Swamadesi Bakery
Hill Street, Dehiwela,
September 21, 1954.. I
I the undersigned D. V. Nanayakkara do hereby take over thebusiness premises No. 154 belonging to Sampatha Waduge Pablis;Silva on a monthly rent.
I have undertaken to pay back on behalf of Pablis Silva a sum ofRs. 8,000 being money borrowed by Pablis Silva, in instalments ofRupees Two thousand payable annually commencing, from the,monthof November.
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BASNAYAKE, C.J.—Nanay alckara v. Pablis SUva
It is also agreed to deduct the rent of Bakery premises No. 154(a sum of Rupees Fifty) from the sum of Rupees Eight Thousand.
I have agreed to the conditions set above and do hereby set myhand on a stamp of cents six in the presence of two witnesses.
A copy of this has been exchanged between the parties. ”
The plaintiff explains thus how the writing came to be given:—
I have been asking for Rs. 8,000 from the beginning and he waspostponing all the time and when I finally threatened to file action hegave me this agreement. I did not file action earlier because he was’ always postponing saying that he will give me the money today ortomorrow etc. He has been putting me off from March, 1951, up toSeptember, 1954. During this period March 1951 to September1954 I did not think of doing any business because he promised toset off my debts. I thought of doing business only after he refusedto pay me the Rs. 8,000 and so I thought I (would) do some businessand make some money. ”
On 15th March 1954 the plaintiff instituted an action in ejectmentand for cancellation of the agreement to lease against the defendanttreating it as a lease and alleging that the defendant had committeda breach of its terms. The defendant resisted the action and also ques-tioned the jurisdiction of the Court of Requests over the matter. Theplaintiff’s action was dismissed with costs on 25th August 1955. Theinstant proceedings were commenced on 3rd June 1957.
The defendant while admitting the execution of the above undertakingsays that he did not abide by it as his Proctor advised him not to paythe money against the rent. The debt referred to was a mortgage debtof the plaintiff hypothecating his other property and not the premisesin question. On the plaintiff’s own evidence the conclusion that theplaintiff seeks to eject the defendant because the latter failed to givehim the sum of Rs. 8,000 he promised is irresistible. He seeks to bringhimself within the ambit of section 13 (1) (e) of the Rent Restriction Act,No. 29 of 1948, by stating that he wants to run a tea kiosk. A landlordcannot avoid the operation of the prohibition contained in that sectionby a mere statement on oath that the premises axe required for thepurpose of trade or business. He must place before the Court evidencesufficient to convince it of the truth of his claim. The section requiresthe Court to come to the conclusion that the landlord reasonablyrequires the premises for the trade or business of the landlord. In theinstant case the plaintiff’s evidence destroys his own claim. Even ifhe actually means to carry on a tea kiosk business in the premiseshe is not in law entitled to eject the defendant. Under section 13 (1) (c) ofthe Rent Restriction Act, No. 29 of 1948, a landlord who has no businessin existence at the time he seeks to eject the tenant is not entitled toinstitute legal proceedings for ejectment on the ground that the premisesare required by him for the purpose of his business. In my view the
Aiyadurai v. Kathirasipillai
493
words “ for the purpose of the trade, business, profession, vocation oremployment of the landlord ” make this clear. Although the words ofthe Act of 1948 are slightly different from those of the correspondingprovision in the Ordinance of 1942 and the word “ his ” has beenreplaced by the word “ the ” I think the provision still bears the samemeaning. In Mamuhewav. Ruwanpatirana1 I held that % person who hasno trade or business in esse at the time of the institution of the actionwas not entitled to maintain an action in ejectment under the RentRestriction Ordinance, No. 60 of 1942. Learned counsel for the res-pondent cited the eases of Hameedu Lebbe v. Adam, Lebbe 2 and Andree v.De Fonseka3 which take a different view, but I prefer to follow myprevious decision.
I allow the appeal of the appellant and make order dismissing theplaintiff’s action with costs both here and in the Court below.
Appeal aUotoed.