P. W. AMARASEKERA, Appellant, and K. Y.M. GUNAPALA et al., Respondents

086-NLR-NLR-V-73-P.-W.-AMARASEKERA-Appellant-and-K.-Y.M.-GUNAPALA-et-al.-Respondents.pdf


Amorascktra v. Cunapala
409
Present :Alles, J.1*. W. AMARASEKERA, Appellant, and K. Y. M. GUNAPALA el al.,RespondentsS. C. 36/69— C. R. Colombo, SS035/R.E.Rent Restriction Art (Cap. 2Z-t), as amended by .4 el So- JO of 1061—■Section 9 (1)—Residential premises—Issue raised as to subletting only■—1*leadings and evidenceshowing that tenant was not in physical occupation—tiffed—“ -You-occtt/ryirtgtenant ”—forfeiture of statutory protection.
Defendant took on rent from the pb-untilf for resident ini purposes certainpremises which xvero subject to tho provisions of i h.- Kent Restriction Act.i’lnirtlilT claimed ejectment amt fin mattes on the ground that the defendantsublet the premises to the added defendants. The "defendant averresl that hehad his business ollico on the premises and that the added defendants wereIris servants. The only substant ini issue raised at. t he trial xvas that of sc blotting.It was the plaint ill's case that tho dcfenilant. by not occupying the premisesatul permitting his employees to be in physical occupation, had sublet thopremises. The issue of subletting was relevant only because tho plaintiffpleaded that the defendant was not in neeiipation and hnd sublet the premisesto the added defendants in contravention of sect inn 9 (I) of the KentRestriction Act ns amended by Act Xu. lit of 1901.
Tho evidence showed that the defendant. haven: taken the premises forresidential purposes, was nut in physical oecup.ition of them after some timebut resided elsewhere and that it was his intention never to conic into residenceof the promises except to use thorn, at most, as an oflico and n store anil itssleeping quarters for his employees.
If.'ld, (i) that, although the allegation that tho defendant was a non-occupyingtenant was not one tliat was specifically raised as on issue, it was open to" theCourt, on tho pleadings, to consider whether the defendant was entitled to seekthe protection of tho Kent Restriction Act.
(ii) that the defendant was not entitled to claim tliat ho was ill occupationthrough his employees when it was clear on tho evidence that lie was not inphysical occupation. Accordingly, the plaintiff was entitled to eject thodefendant and the at bled defendants from tho premises.
470
ALLES, J.—Amarasrhera v. Gunapala
A.PPEAL from a judgment of the Court of Requests, Colombo.
D. R. P. Goontiilleke, for the plaintilf-nppellant.
K.Jayasekara, for the defendant-respondent and the added defcndanls-respondents. –
Cur. adv. vult.
October 20, 1970. Alles, J.—
The plaintiff, who was the owner of premises bearing AssessmentNo. 155/10, Messenger Street, Colombo, instituted this action against thedefendant for ejectment and damages. In the course of the trial theplaintiff died and his son was substituted in his place. The 1st to the 4threspondents were added as defendants before the trial date because it wasalleged by the plaintiff in his-amended plaint that the defendant hadsublet the premises to the added defendants in contravention of Section9 (1) of the Rent Restriction Act No. 29 of 1948 as amended by Act No. 10of 1961. The defendant in his amended answer averred, inter alia, thathe was in occupation of the premises in suit as a monthly tenant and thatthe added defendants were his servants. The added defendants also filedanswer to the same effect and denied that they were sub-tenants of thedefendant. The same, position was also taken by the defendant in hisstatement of objections where he further averred that he had his businessoffice on the premises and that he had at no stage sublet the premises.
When issues were framed on the first date of trial .the plaintiff raisedthe issue of subletting and the defendant’s Counsel raised the followingissues among others :—-
Is the defendant in occupation of the premises in suit as a
monthly tenant ?-
Are the added defendants servants of the defendant ?
On.a subsequent date however the parties moved to raise issues afreshand the only substantial issue raised was that of subletting. Counselfor the defendant did not raise any issues. The premises in questionwere subject to the provisions of the Rent Restriction Act and it wasthe plaintiff’s case that the defendant by not occupying the premises. and permitting his employees to be in physical occupation had subletthe premises. In Sitriya v. Board of Trustees of Maradona Mosque1the evidence established that the subtenancy complained of had beencreated before the prohibition contained in Section 9 (1) of the Act became,law and Gratiaen J. therefore considered it unnecessary to deal with thetheory of forfeiture by the '’non-occupying” tenant. In the presentcase the issue of subletting only became relevant because the landlordpleaded that the tenant.was not in occupation and had sublet the premises *
* (1954) 55 N. h. It. 309.
ALLES, J.—Amarasetera u. Gunapala
47
to the added defendants in contravention of the provisions of the Act.Therefore, I think, that although the allegation that the defendant wasa non-occupying tenant was not one that was specifically raised as anissue, it was open to the Court, on the pleadings, to consider whether thedefendant was entitled to seek the protection of the Act. The learnedCommissioner dismissed the plaintiff’s action and held that the factsdid not warrant a finding that the defendant had forfeited the protectionof the Act on the ground of a subletting.I however propose to consider
the case from the broader angle whether the tenant is entitled to claimthe protection of the Act under any circumstance.
The facts of tlie case are not in dispute and may be briefly stated.The defendant who hails from Matara was carrying on the business of avegetable dealer at the Pettah Market. He became the tenant of thepremises, which consisted of two rooms, in 1956 and used to sleep on thepremises with his employees. He also used the premises as a store andan office. According to the unchallenged evidence of the plaintiff thedefendant intended to use the premises for residential purposes andbring his wife after marriage to live with him. This contingcncj', howevernever took place although he got married in 195S. Except for the 2ndadded defendant, who was his nephew, his employees (referred to in thepleadings as his servants) were never the same and there were frequentchanges among them in the personnel and the numbers. The defendantresided on the premises from 1956 to 1959. From 1959 onwards heresided with his wife at Wellampitiya and thereafter at Dchiwala withhis wife and family. The added defendants continued to be inphysical possession of the premises in suit. It is not denied that after1959 the defendant never resided on the premises although he statesthat lie visited it for the purposes of his business. The plaintiff hasproduced the Householders Lists for the premises in suit and the premisesoccupied by the defendant at Dchiwala (P 3 to P 7). P 3 to P 5 arc theLists for the premises in suit for the years 1960, 1964 and 1966 accordingto which the Chief Occupant’s name has been given as that of the 2ndadded defendant. The defendant's name only appears as an occupantin 1* 3 but not in P 4 and P 5. The names of the other occupants vary.1* 0 and P 7 are the Lists for the premises occupied by the defendant atDchiwala for the years 1966 and 196S and the Chief Occupant's name isgiven as that of the defendant. The other occupants are his wife andchildren.
The learned Commissioner in dismissing the plaintiff’s action hasaeeeptccl the position that the added defendants arc the defendant'semployees and not his sub-tenants. Even assuming this to be the casethe question arises whether the defendant, having taken the premisesfoT residential purposes, is entitled to claim that he is in occupat ion throughhis employees when it is clear on the evidence that he is not in physicaloccupation, that he resides elsewhere, and it is his intention never tocome into residence of these premises and at most to use it as an office
472
–1LLES. ■(.—Amarasctera v. Ountiptiio
and a store and as sleeping quarters for.-his employees. If this is the law. it would mean that a tenant can take on rent a number of premises onthe pretext of using them for residential purposes, thereafter ceasing tohe in occupation after some time and using them for purposes other thanresidential. He could then claim to be in occupation as the statutorytenant by placing one or more of his employees in occupation, eventhough the employee concerned describes himself as the Chief Occupant.This would be an intolerable situation as far as the landlord is concernedand I do not think the Rent Restriction Acts ever contemplated such asituation. As Scrutton L.J. stated in the leading case of Skinnerv. Geary 1—
“ One object of the Acts was to provide as many houses as possibleat a moderate rent. A man who does not live in a house and neverintends to do so, is, if I may use the expression, withdrawing fromcirculation that house which was intended for occupation by otherpeople. To treat a man in the position of the appellant as a personentitled to be protected, is completely to misunderstand and misapplythe policy of the Acts. ”
The concept of the “ non-occupying tenant ” has not received that degreeof attention in Ceylon as it has in England. As far as I am awarethe only occasion when it arose for consideration in our Courts was inSabapatfiy v. Kularatne2 where Gratiaen J. held that a “non-occupyingtenant ” should be regarded as having forfeited the special statutoryprotection afforded by the Rent Restriction Ordinance. That was a casewhere the landlord required the premises at Matale for his own occupationand the evidence disclosed that the tenant, who was employed inColombo, claimed that lie required the premises for the purpose qf abusiness carried on by his brother who was in no sense privy to the contractof tenancy. In the later case of Suriya v. Board of Trustees of MaradanaMosque3 the same Judgesought to explain his observations in Sabapathy v.Kularatne and said that he intended the dictum that “ a non-occupyingtenant prima facie forfeited his status as a statutory tenant ” to beapplied when a question of relative hardship arose between landlord andtenant. In the same case the learned Judge remarked that instances,where a tenant who defeats the object of Rent Restriction legislationby renting a house and then completely abandoning it, had not arisenin any action instituted in Ceylon and if they did he did not doubt that" the Courts would refuse to interpret the local Act so as to permit thetenant to claim protection
The object of Rent Restriction legislation being to put as many houses“ into circulation ” at a reasonable rent—a phenomenon which is equallyapplicablein Ceylon as it is in England—the position of the" non-occupyingtenant ” is one of importance. In England the judicial decisions have
* (1931) 2 K. B. 546 at 564.* {195J) 52 N. L. R. 425.* (1954)55N.L.R.309.'
ALLES, J.'—Amara&tktrci v. Gunapala
<73
gone very far in dealing with the problem, a fact which provoked Greer
J. in Skinner v. Geary at p. 5C5 to observe that “ to addthat
non-residence shall be a ground for taking the house out of the protectionof the Acts seems to me to be legislation and not a decision of the meaningof the Acts In spite, however, of this observation of the learnedJudge the decision in Skinner v. Geary and in particular the observationsof Scrutton L.J. in that case have been approved of until recent times.
In Skinner v. Geary 1 the tenant Geary had lived elsewhere for ten yearsand the premises were occupied by his relations and his sister presumablyas tenants at Mill. The occupation of the relations and the sister wasnot for the purpose of preserving the house for the tenant and at no timedid the tenant contemplate residing in the house again. Scrutton L.J.dealt with the history of the Rent Restriction Acts and observed thatthe statutory tenant’s right Mas not a right of property but a purelypersonal right to occupy the house as his home. In his view, thefundamental principle of the Act Mas " to protect a resident in a dMcllinghouse, not to protect a person who is not resident in a du elling house….”He again referred to the principle underlying the Acts when he said atp. 5G0—
“these Acts M ere passed during war time ou ing to the scarcity
of houses, and the fact that very high rents Mere being claimed bylandlords from tenants led to the intervention of Parliament, whichfixed the rents which could be exacted, and in fact enacted that if atenant paid the rent so fixed he should be allou'cd to remain in occupa-tion. Parliament was dealing with a tenant u'ho M as in occupation andwho M-as not to be turned out; it was not dealing, and never intendedto deal,with a tenant who was not in occupation butwho wished to say:‘Although I am not in actual occupation I claim the right so long as Ipay the rent to retain my tenancy If that had been put foruardParliament Mould have received the suggestion with contempt. ”
and again at p. 561 —
” A non-occupying tenant was in my opinion never within theprecincts of the Acts, u'hich Merc dealing uith an occupying tenantwho had a right to stay and not be turned out. This case is to be decidedon the principle that the Acts do not apply to a person Mho is notpersonally occupying the house and has no intention of returning to it.
I except, of course, such a case as that to which I have alreadyreferred—namely, of temporary absence, the best instance of which isthat of a sea captain M-ho may be atvay for months but who intendsto return, and whose uife and family occupy the house during hisabsence. ” *
* 11931) 2 K.B. 546.
474
ALLES, J.—Amarasckcra v. Ounapala
and finally at p. 564—
“the Act does not in my opinion app!y to protect a tenant
•who is not in occupation of a house in the sente that the house is hi3home and to ■which, although he maybe absent for a time, he intends toreturn. If it were held otherwise odd consequences would follow.The appellant in this case has contented himself with living in onehouse and claiming another. ”
These observations of Scrutton L.J. have been consistently followed inEngland and have been adopted in the “ deserted wife’s case " and thosecases where the premises let have consisted of a combination of businessand residential premises—per Acton J. in Reidy v. Walker1 and per LordWright in Hiller v. United Dairies (London) Ltd-2 . In Robson v. Headland 3Lord Tucker in the Court of Appeal applied t he principle to the case.of a■ divorced wife who the Court held was a stranger to the husband leavingfor future consideration the position of the wife of the tenant. InBrown v. Brash <L- Ambrose4 the Court of Appeal (Scott; Bucknill andAsquith L.JJ.) sought to explain what was meant by a “ non occupyingtenant ” and Asquith L.J. at p. 254 explained the legal result involved.He conceded that the absence of the tenant from the premises may beaverted if he coupled and clothed his inward intention . wiJi some formal,outward and visible sign such as installing a caretaker or representative,be it a relative or not, with the status of a licensee and with the function ofpreserving the premises for his ultimate home coming.
“Possession in fact” said he “requires not merely an animuspossidendi but a corpus possessionis, namely, some visible state ofaffairs in which the animus possidendi finds expression. ’* .
Both these conditions are absent in the present case. It can hardly bemaintained that the 2nd added defendant, who described himself asthe Chief Occupant of the premises, had the status of a licensee whowas preserving the premises for the defendant’s ultimate home coming.Nor could it be legitimately urged that the use of the premises as. anoffice, where some account books and stores were kept, fulfilled the conceptof the “ corpus possessionis ” in which the “ animus possidendi " findsexpression. .-
In Cove v. Flick * the tenant who had taken the premises on rent in1938 informed the landlord that the premises were to be. used as a homefor his parents, his sister and himself. In 1949 he married and lived,elsewhere but he left his furniture and intended to return and live thereif one of his parents should die or his sister should leave. In an action bythe landlord for possession the Court of Appeal (Somervell, Denning andHomer JJ.) held that neither the fact that the tenant informed the land-lord that his parents and sister would occupy the premises nor the fact
> 0933) 2 K. B. 266 at 271.» 0948) 5l Law Times 596.
* 0934) 1 K. B. 57.* (7345) 2 K; B. 247'.
• {1954) 2 A. E. B. 441.
Hamza Lebbe v. Food and Ft ice Control Inspector
475
that he had left his furniture thereon and intended to return thereto .in the circumstances mentioned by him (circumstances which werecontingent) rendered him in such occupation or possession of the premisesas to take him out of the principle of Skinner v. Geary and the Court heldthat the landlord was entitled to possession.
As Lord Coddard C.J. observed in the subsequent case of S. L. Dando v.HitchcockJ where the Court of Appeal ordered possession to be deliveredto the landlord—
“ Where there is a personal tenant who does not live in the house,never intends to live in the house and declares that his intention isnever to live in it, I can sec no reason why his tcnancT should beprotected to enable him to keep in the house a manager or a partneror an3*onc else whom it may be convenient to have there. ”
The added defendants in the present case, who have been found by theCourt to be the defendant’s employees stand in the category of personsreferred to by Lord Goddard in the above passage and cannot on anjrview of the law be said to be persons through whom the defendant canclaim to be in occupation of the premises.
I am of the view that, as the evidence establishes that the defendantis a non-occupying tenant, he is not entitled to claim the protection of theAct. I therefore hold that the plaintiff is entitled to eject the defendantfrom the premises. The added defendants have no privity of contract withthe plaintiff and are not entitled to be in occupation. . The plaintiff isentitled to an order of ejectment and for damages as prayed for in hisplaint. The appeal is therefore allowed with costs in both Courts.
Appeal allowed.