Senerath r. Mahadevan (Samurakoon. (.7.)
SUPREME COURTP.M. SenerathVs.V. Mahadevan
S.C. Appeal No. 10/SI – CA(LA) 2!Si(SC) – ( A Appeal 4X1/7<i – MX. MaligahakandeNo 545.12 with CA Application No. 217HIS0
S.4 Brothels Ordinance – Section 22(1) Kent Act – Availability of rights under eitherSection to evict tenant for use of premises for immoral purposes — election
A was convicted in the Magistrate's Court for running a- brothel and finedRs. 200/- under the Brothels Ordinance. The landlord of. the.premises wherethe brothel was run filed a petition in the Magistrates' Court praying for anorder of ejectment of the tenant in terms of Section 4 of the Brothel'sOrdinance. The Magistrate ordered eviction. On appeal the Court of Appealaffirmed the Magistrate's Order.
Appellant appealed to the Supreme Court on the grounds that Section 22(1)of the Rent Act prohibited the bringing of an action for ejectment under anyother law.
Held that Section 22(l)d of the Rent Act preserves the common law rightof ejectment for use of premises for immoral purposes and consequently itwas open to the landlord either to resort to a civil action under Section 22(l)dof the Rent Act or invoke the powers of the Magistrate under Section 4 ofthe Brothels Ordinance.
APPEAL from judgment of the Court of Appeal.
Samarakoon.O.C.,CJ.,Wanasundera, J., andRatwatte, J.
A. A de Silva with S. A. Dassanayakeand P.Samararatne for Appellant.K..N. Choksy, S. A , with J. Joseph andMiss R. Rajapakse instructed byA. Srinivasan for Respondent.
18th May, 1982.
Cur. adv. vult.
The Appellant was convicted in case No. 36251 of the Magistrate'sCourt of Maligakanda on a charge of running a brothel at premises
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No. 108/1, Rosmead Place, Colombo 7, and fined Rs. 200/-. On thedate of offence the Appellant was the contractual tenant of thepremises under the Respondent, who was the owner of the premises.On the 16th December, 1976, the Respondent filed petition in theMagistrate's Court of Maligakanda praying for an order of ejectmentof the Appellant from the said premises in terms of section 4 of theBrothels Ordinance (Chapter 31). The Respondent pleaded inter aliathe conviction of the Appellant in the said case No. 36251 for anoffence under the Brothels Ordinance. After fnquiry the Magistrateordered the eviction of the Appellant from the said premises. TheAppellant then unsuccessfully appealed to the Court of Appeal. Hehas now appealed to this Court with the leave of the Court of Appeal.
Before I deal with the main contention of Counsel for the Appellant1 should like to dispose of two other arguments of Counsel. Hecontends that this being an application made under section 4 ofChapter 31, the Respondent was obliged .in law to make an applicationto the Magistrate in the same case upon the conviction being entered.He seemed to suggest that this must be done at the time the convictionis entered of record because of the use of words “upon conviction”in section 4. Section 4 reads thus:
”4(1) Upon the conviction of the tenant, lessee, or occupierof any premises of any offence under this Ordinance, it shallbe lawful for the court, on the application either of theprosecuting party, or of the owner, or lessor, or, if it so thinksfit, of its own motion, to declare that the tenancy or occupationof the said premises under the lease or agreement under whichthe same are held or occupied shall be terminated from suchdate and subject to such conditions as may be defined in theorder of the court, and may by the same or a further orderdirect that the possession of the said premises shall be deliveredto any person entitled to th$ possession thereof as from anydate specified in the order.
(2) In the event of any owner or lessor of any premisesfailing to exercise his right of application to the court underthis section, and of the tenant, lessee, or occupier so convictedbeing subsequently convicted of an offence under this Ordinancein respect of the same premises, such landlord or. lessor shallbe deemed to have knowingly abetted the said olf^&es, and
Senerath v. Mahadevan (Samarakoon. C.J.)
shall be liable to be prosecuted and punished accordingly,unless he proves that he had taken all .-reasonable steps toprevent the recurrence of the offence.”u, y, .
I am unable to accede to this argument. The words ‘‘upon'conviction"in the context only means “Following a conviction”. Iffi^r’eafter theremedy provided by this section becomes available! Furthermore itmust be noted that the parties to the prosecution” were theOfficer-in-Charge of the Vice Squad, Cinnamon Gardens PoliceStation and the Appellant. The Respondent was not a party toprdcccdings and therefore could not have made any application atthe time of conviction. He may not have been aware of the cbrivictionat the time it was entered. Section 4(1) is an empowering'’sectiongiving the Magistrate power to order eviction of an accused convictedof an offence under this Ordinance. The Magistrate could aict e.vmero motu or on the application of the prosecution or later on theapplication of the landlord. It does not require that the applicationshould be filed in the record of the case in which the convictionwas recorded. It can very well be a separate application though Ifind that the application tendered by the Respondent to the Magistrate'sCourt purported to be and was intended to be filed and heard inthe very same case. The Court appears to have given it a separatenumber’ and heard it as a separate case which it was entitled to do.CounscFfor Appellant also complained that the application was madeby the Respondent after the lapse of over 11 months. The Ordinancedoes not impose a time limit and this contention also fails.
■ The main contention of the Appellant was that in view of theprovisions of section 22 of the Rent Act No. 7 of 1971 an order ofeviction under the provisions of section 4(1) of the Brothels Ordinancewas’bad inlaw and illegal. He drew our attention to the fad thatthe Rent Act was the later Act. The relevant parts of section 22(1)and (d) read as follows:-
22 (1) Notwithstanding anything in any other law, no action orproceedings for the ejectment of the tenant of any premisesthe standard rent (determined under section 4). of. which fora month does not exceed one hundred rupees shall be institutedin or entertained by any court, unless where –
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the tenant or any person residing or lodging with him orbeing his subtenant has, in the opinion of the court, beenguilty of conduct which is a nuisance to adjoining occupiersor has been convicted of using the premises for an immoralor illegal purpose, or the condition of the premises has, inthe opinion of the court, deteriorated owing to acts committedby or to the neglect or default of the tenant or any such person. ”
Section 22(1) is a general provision which has the effect of wipingout all common law and statutory rights of action which were thenavailable to a landlord for the ejectment of his tenant. Four exception?,to the general rule are set out in sub-sections 1(a), 1(b), 1(c) and1(d) of that section which preserve the landlord's common law rightof action in ejectment. In particular sub-section 1(d) preserves thecommon law right of a landlord to maintain an action in ejectmentwhen the tenant has been convicted of using the premises for animmoral purpose. In other words the prohibition contained in theprovisions of section 22(1) is not applicable in a case of immoralusage of premises. In the result not only common law rights but anystatutory provision providing for the ejectment of such a tenant willnot be covered by the provisions of section 22(1) of the Rent Act.The provisions of section 4(1) of the Brothels Ordinance and thepower j»iven by if to eject upon conviction was one that has stoodsince 1019 along with the common law right of action. These provisionsof section 4 are not affected or nullified by the words “notwithstandinganything in any other law"” in section 22(1) of the Rent Act. In theresult it was open to the Respondent either to resort to a civil actionunder the Common Law taking advantage of the provisions of section22(1 )(d) of the Rent Act or else to invoke the powers of theMagistrate under the provisions of section 4 of the Brothels Ordinance.He has chosen the latter which in the circumstances is certainly thespeedier and wiser course.
I therefore dismiss the appeal with costs.
WANASUNDERA, J. — I agree.
RATWATTE, J. — I agree.