025-NLR-NLR-V-52-NICHOLAS-HAMY-Appellant-and-JAMES-APPUHAMY-Respondent.pdf
1950Present; Dias S.P.J. and Swan J-
NICHOLAS HAMY, Appellant, and JAIMES APPUHAMY, RespondentS. C. 439—D. G. Colombo, 16,697
Rent Restriction Ordinance—■Letting of a “ workshop ”—Does such agreement fall-within the Ordinance ?—Meaning of word *' premises ”—Ordinance No. GO
of 1942, sections 2 (2), 8 (c).
The defendant took charge from the plaintiff of “a- workshop ” called** The City Engineering Works ”, together with certain tools, machinery andimplements. The defendant undertook to pay a sum of Bs. 160 per mensem** for the above workshop until such time as I am in occupation Thedefendant also agreed to quit on receiving three months* notice.
Held, that what was let was a building and not a “ a business ” and thatthe agreement contained all the ingredients necessary to constitute a validletting of “ premises ” within the meaning of the Bent Bestrietion Ordinance.
-^^PPEAL from a judgment of the District Court,. Colombo.
N. K. Ghoksy, K.G., with V. A. Jayasundera, K.G., and D. Wimala-ratne, for the defendant appellant.
H. V. Per era, K.G. with E. B. Wikramanayake, K.C., and S. Canagarayer,for the plaintiff respondent.
Gur. adv. vult.
June 30, 1950. Dias S.P.J.—
The question for decision in this case is whether the contract of lettingand hiring which, admittedly, exists between the plaintiff and the defen-dant is one which is governed by the provisions of the repealed RentRestriction Ordinance, hTo. 60 of 1942. Mr. H. V. Perera for the plaintiffrespondent has strongly contended that the transaction is one of lettingand hiring “ a business ” called “ The City Engineering Works ”, andthat the Rent Restriction Ordinance of 1942 does not apply to such a-contract. He further submits that in the final analysis, the caseinvolves a pure question of fact on which the trial Judge has held in hisfavour. He, therefore, submits that a Court of Appeal would be slowin setting aside the findings of the trial Judge on what is after all aquestion, of fact. Mr. Perera- concedes that* if the transaction amountsto the letting and hiring of ‘ ‘ premises ’ ’1 his argument would fail andthat the plaintiff’s action will have to be dismissed..
There is one point on which the trial Judge, admittedly, has erred.At page 4 of the record it is recorded that learned counsel for the plaintiffsaid “ that his issue for damages is only with regard to a sum of Rs. 160he claims per mensem, and not with regard to the value of any tools ”.Tn the plaint a claim was made for a sum of Es. 10,000 being the valueof machinery and tools unless the defendant restored the same to theplaintiff. When the Judge came to write his judgment he failed tonotice this express waiver of this claim, and he entered judgment for theplaintiff “ as prayed for with costs ”, and the decree perpetuates thaterror. If the judgment and decree of the trial Judge have to be affirmed,it must'be varied *by deleting this item ,therefrom.
It is admitted that the subject-matter of this contract is situated inColombo, and that it lies within an area proclaimed under section 2 (1) ofthe Ordinance. Section 2 (2) of the Ordinance reads as follows: —
‘ ‘ So long as a Proclamation under sub-section (1) is in force inrespect of any area, this Ordinance shall subject as hereinafter pro-vided, apply to all premises in such area which' are used or occupiedor intended to be used or occupied, whether in their entirety or inseparate parts, for the purposes of residence or for the purposes of anytrade, business, undertaking, profession, vocation or' employmentor for any other purpose whatsoever ”.
What is the case foreshadowed in the plaint? In paragraph 1 it issaid that “ the property is situated …. within the jurisdictionof this Court ”. In paragraph 2 the proctor, obviously on instructionsand after considering the facts, says that ‘‘ By agreement dated- 1. 2. 44marked letter ‘ A ’ (P2) which is filed herewith and pleaded as partand parcel of this plaint ”, the defendant agreed to take charge of anduse the toorkshop known as “ The City Engineering Works ” . . . .along with the' machinery, tools and implements mentioned in the saidagreement There are two misstatements of fact in this paragraph.In the first place the document P2, although it bears the date 1. 2. 44,was not written on that, day but later. In the second place, the defendant’had all along "been in occupation of the workshop long before the plaintiffacquired the place. Paragraph 3 states that ” the defendant agreedto pay monthly a sum of Es. 160 for- the use of the workshop and the saidmachinery and tools, and further expressly contracted to hand backthe 'workshop and tools and implements and vacate the premises on receiptof" three months’" notice ”. Paragraph 4 states that notice to quit wasgiven Id the defendant on August 25, 1945. In paragraph 7, the drafts-man of ^ the plaint, having in mind the provisions of section 8 Proviso(c.) of the Rent Restriction Ordinance, pleaded—" The plaintiff furtherstates that the workshop is reasonably required for the plaintiff’s use andoccupation In his prayer the plaintiff inter, alia asked “ that thedefendant be ej'eeted from the workshop
Pausing there, it is clear that this plaint refers to the document P2as containing the agreement binding the parties. It is clear that whatwas let was1 “ a ’ workshop ” and not a business. The word “ Premises ”as" not defined-in the Ordina&ice. Its ordinary meaning applicable in thiscontext is' either “a building ” or “a building on a land ”. Therefore,at is clear that what the plaintiff is stating in his plaint is that certainpremises, which are a workshop, were let to the defendant together with,tie machinery and tools in • that workshop, that the plaintiff requiresthe workshop for his own use and occupation, and that the defendantalthough duly noticed to quit, in terms of the agreement, had failed tovaeate the place. The intervention of the Court was, therefore, soughtto eject him from the workshop. The answer of the defendant containedthe usual plea- made in cases under the Bent Bestriction Ordinance-lie denied that the document P2 was signed on 1. 2. 44, and assertedthat it was signed on or about ^August 25, 1945, at the request of theplaintiff himself who stated “ that a document was necessary as regards;the tenancy for some purpose of hi§ ”, and that “ the date was inserted,as 1st February, 1944, at the request of the plaintiff The defendantdenied that the “ premises in question ” were reasonably required for theoccupation of the plaintiff. He also made a claim in reconvention.
In his replication the plaintiff admitted that the document P2 “ wasexecuted later than 1st February, 1944 ”. He went on to say “ Atthe time of its execution by agreement between the plaintiff and thedefendant, the date put on the document, viz., 1st February, 1944, wasthe date on which by agreement in terms of the document A (P2), thedefendant took charge from the plaintiff of the said workshop and thematerials contained in the list set forth in the said document A (P2)Even at this point nothing is stated about the letting and hiring ofa business. In paragraph 2 of the replication the plaintiff says that theJrent of Bs. 160 was the “ authorised rent ”. If what was let was- ” -abusiness ” to which the Bent Bestriction Ordinance does not applythere was no need to refer to “ authorised rent ”. In paragraph 3 ofthe replication it is stated “ The plaintiff denies that the provisions ofthe Bent Bestriction Ordinance are applicable to the transaction- between-the plaintiff and the defendant and the contract on which the plaintiff'saction is basedIt seems to be clear that it was at that point that
misgivings, appear to have struck the advisers of the plaintiff. Upto that point the action was framed as one by a landlord who had leta workshop to a tenant who was overholding. At this point the natureof the action undergoes a change. Ho doubt “ second thoughts arebest ’ , but as counsel for the plaintiff has strongly urged that the .find-ings of fact of the trial Judge are not lightly to be disturbed, it is wellto realize the nature of the case first set up, and the case which .waseventually pressed at the trial.
At the trial a large number of issues were framed. It is only necessary-to refer to two of them. Issue 1 reads “ Did the defendant take, charge ■of and use the workshop known as The City Engineering Works situated -at Ho. 399, Skinners Boad South, including the machinery, tools- and-implements ? . After the eleventh issue had been'’ framed, counsel,for the plaintiff stated ” that in framing Issue 1 he intended to conveythe following, viz., that his client let to the defendant the business known,,as The City Engineering Works ”. One would have expected counsel^for the defence at once to have objected on the ground that that ms notthe case he was called upon to meet, and moyed that the plaintiff should,amend his pleadings so that the defendant could adequately answer'the new case set up. He did not do so, and counsel for the plaintiffframed Issue 12 which reads as follows:” Do the provisions of the
Kent Kestriction Ordinance apply to tlie transactions that took placebetween, the plaintiff and the defendant?”. X agree with counsel forthe plaintiff,- that.-once the issue was framed, the case which the Courthad to try became crystallised in the issues. Nevertheless, in assessingthe evidence, and in judging the credit which had to be placed on thetestimony, oral and documentary, the Court has the right to see whattook place before, those issues were framed. For example—there is adefinite.-, admission by the plaintiff in his pleadings that the agreementoi‘ contract-between the parties is to ‘oe found in the document P2.Not. only:-. <did the plaintiff so state in his plaint and replication, but healso said so -in his evidence.-
Mr. Perera argued that P2 does not embody the contract betweenthe parties. He submits that P2 is unilateral and is nothing more thana receipt; land does not reproduce the contract between the parties. . Iam unable to accept this argument. P2 was produced by the plaintiffand was-made – part and parcel of the plaint. It is in the teeth of theplaintiff’s sworn evidence. He said in chief:“ On the 1st February,
1944, the defendant took over the business from me, and an agreementswas subsequently entered into which. is filed of record. I produce theagreement marked P2 ”. In the light of the plaint and the replicationand in; view of the plaintiff’s sworn evidence, it is impossible to accept.the argument now set up—that despite the pleadings and the plaintiff’sevidence, P2 does .- not contain accurately the agreement or contractbetween the -parties. I hold that -P2 correctly reproduces the agree-ment; between-the parties…: .
Thei^epie., the chief thing that had to be done in this case was tointerpret: vand construe the document P2. This Court is in as good aposition]agx.the trial. Judge to interpret P2. What does P2 say?
“ Thisois tb certify that I the undersigned Helpe Archarige Nicholas-hamy of Nandaha N-iwasa Nagoda- Kalutara on this 1st day of February1944 do hereby- take charge of the workshop which is known as the- City ^Engineering- Works situated at No. 399 Panehikawatte Colomboalong -with the machinery tools and the implements mentioned underfrom.:'iijhe• legal owner Watarakagamage. James Appuhamy of GrlenwydeNo. f'fki' Mayfield Hoad Kofcahena. I hereby "agree with him that I‘ will- pay .him monthly One hundred and sixty rupees (Ks. 160) for•the above workshop until such time I am in occupation. I also agree thatI shall vacate the same on three months’ notice ”.
There is not one word' in P2 from its commencement to the end of theletting and hiring of' “ a business ’’. The defendant took ehargei of‘vd workshop ” called by a. certain name, together with the tools,machinery and implements referred tp in the list annexed -to P2. Thedefendant undertook to pay a sum of Ks. 160 per mensem, “ for the aboveworkshop until such time I am in occupation. ”.. The defendant alsoagreed to quit on receiving three months* ’ notice. This agreementcontains all the ingredients which constitute a valid letting of * -premises ’ ’from month to month. What is' let are Premises ” called aworkshop, together with tt-e machinery, tools, &c. The letting andhiring is to be terminated on three months.’ notice, " and a definite rentor hire has been fixed. There is not one word in P2. "which justifies’ the.
inference that what was let was “ a business ”, or the “ goodwill ofA business ”, or that the workshop was a mere accessory to the hire ofa business, and not severable from the business.. r .
The trial Judge while* definitely holding that 'P2 contains the agree-ment between the parties, has made no attempt to construe it. He hasnot considered the question as to how the plaintiff himself when hedrafted his plaint regarded the transaction. X agree with the learned-Judge that the Rent Restriction Ordinance is confined to the hire of“ premises ”. I also agree witi. him that, if it be the fact that thiscontract of letting and hiring is that of “ a business ” and not the hiringof ” premises ”, the Ordinance will not apply. He correctly, addressedhis mind to the question he had to decide when- he said:- •“-'The chiefquestion to be decided in this case is whether the provisions of'the RentRestriction Ordinance apply to the contract of letting and hiring pleadedin the plaint ”- He would have been mpre correct had Jie stated ”, pleadedin Issues 1 and 12 ”, because the contract pleaded in. the plaint. clearlyshows that the Ordinance would, apply to it. The Judge then went onto point out that by deed PI -the plaintiff had purchased a land. calledThe City Engineering Works and the . goodwill of a business bearingthat name. The Judge says It is this business which by P2 was letto the defendant. ” In my opinion this is a- clear misdirection. Hadthe Judge considered the terms of the document P2, he would findthat no business called The City Engineering Works was-. let :to thedefendant. This misdirection, in my opinion, has affected -the rest ofhis judgment. If as definitely found by the learned Judge, the documentP2 embodies the agreement between the parties, then P2 speaks foritself. By no stretch of the imagination can – one construe P2 to • meanthe letting and hiring of a business.,_
The plaintiff swore : “I am getting Rs. 160 from the defendant, ' thatis rent for the premises Rs. 100 and rent for the business Rs.' 60. " ByJ business ’ I mean the use of all. the workshop materials and the name.I may have given a receipt to the defendant for Rs. 160. I was in thehabit of giving a separate receipt for the Rs. 60. I did not want to givea receipt for Rs. 160 because the Municipal assessment-rate: was 'Rs.. 100.He said he did not want a receipt for Rs. 160. So I gave a receipt, forRs. 100 and Rs. 60. ” If that evidence makes sense, it can onlymean that the plaintiff was admitting that there was a letting' of- thepremises (workshop) and a letting of the workshop materials and thename. Although his learned counsel argues that the two things cannotbe severed, the plaintiff has done so.
I am of opinion that the judgment cannot stand. Counsel' -for'theplaintiff stated that even if there was a letting * of premises, he mighthe able to argue that the decision'of the trial Judge was right, but thathe took the responsibility of staking his case on the submission that thiswas a letting of a business. I do not think that contention can succeedon the "facts of this case.,■
therefore, set aside the judgment and decree appealed against,and dismiss the plaintiff’s action with costs both here and below.
*-f '‘*' *v
..Appealallow e dt,.
S waist J.-^-I. agree*.