086-NLR-NLR-V-15-PERERA-v.-PERIES-et-al.pdf
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Present: Lascelles C.J.
1912.
PERERA t>. PERIES et al9—C. E. Colombo, 24,24:7
Lease—Actionforcancellation—Abuse of property leasedbylessor—
Cancellation of planting agreement.
Plaintiffsuedthe defendants for the cancellation of.alease or
planting agreement, andfor damages caused bythefailureofthe
defendant to plant coconut plants supplied to him by the plaintiff,^nd for • further damages caused by the defendants destroying thecoconut trees of the first plantation.
The defendantsobjected on the ground thatthe action was
premature, as six years of the terra of nine years granted by theagreement had still to run.
Held, that the plaintiff was justified in demanding the cancellationof the contract,as defendants' conduct evincedanintention no
longer to be bound by the contract.
Althoughthe conductorcannot ordinarily be ejected from the
property whichhe hastaken onleasebeforetheexpiryofthe
appointed term,this ispermittedwhenthe conductor has abused
the thinghiredto him. “ Whether the destruction ofthetrees is
attributable tomaliciousaction onthepart- ofthedefendant,or
whether, it is due merely to negligence on his part, the defendantis liable to.be ejected."
fJlHE facts are set out in the judgment.
Bawa, K.G. (with him E. W. Perera), lot the defendants, appel-lants.—The action is premature, as the Plaintiff is not entitledto recover damage from the defendants until after the expirationof the lease. See De Fonseha v. Fernando.1 The non-fulfilmentof the terms of the agreement would not justify a cancellationof the agreement. The agreement does not provide for aforfeiture.
E. W. Jayewardene (with him F. If. B. Koch), for the plaintiff,respondent.—The conduct of the defendants shows an unmistakableintention to ignore the terms of the agreement and not to carry putthe contract. It is needless to wait till the expiration of the ninevears for bringing this action. The facts in De Fonseha v. Fernando1were different:
J {1891) 15. C. R. 35.
( 314 )
1912.
Perera v.
Peries
Apart from the terms of the contract, the plaintiff is entitled toget the agreement cancelled, as the defendants have caused greatdamage to the plantation.
The first defendant had no right to assign this contract to anotherwithout the consent of the plaintiff.
Counsel cited: Voet 19, 2, 16 (Berwick 212 and 218); Babbitry'sLaws of England, vol. VII., p. 438; General Bill Posting Go. v.Atkinton;1 Kemp v. Beerselman;* Hoare v. Rennie.3
Bawa, in reply.
adv vnlt.
May 81, 191*2. Lascelles C.J.—
In this case the plaintiff has sued for and recovered judgmentordering the cancellation of a lease or planting agreement betweenthe plaintiff of the one part and the defendant of the other part,and also ordering the first defendant to pay Es. 140 as damagesfor the failure of the first defendant to plant 290 coconut plantssupplied to him by the plaintiff in accordance with, the agreement,and also Rs. 110 for damages caused by the first defendant bydestroying the coconut trees of the first plantation. From thisjudgment the first defendant now appeals, on the ground that the.action is premature, being brought before the expiry of the term ofthe agreement, and when over six years of the term of nine yearsgranted by the agreement is still to run. In my opinion thejudgment is justified on either of the two following grounds. Inthe first place, the conduct of the defendants is inconsistent with anintention to be bound by the agreement and to cany out its terms.The learned Commissioner has found—and I entirely agree with hisfinding—that the plaintiff duly supplied the defendants, in pursuanceof the agreement, with 290 coconut plants. The first defendant notonly denies the receipt of these plants, but puts forward the allegedfailure of the plaintiff to supply them as an excuse for his failureto plant the land in accordance with the agreement. Further,from the evidence of the first defendant it is plain that he has nointention of honestly carrying out the agreement. The first defend-ant has thus, by his acts and conduct, evinced an intention nolonger to be bound by the contract. In these circumstances theplaintiff is justified in demanding the cancellation of the contract(General Bill Posting Co. v. Atkinton'). The other ground on whichI am of opinion that the judgment is sound is to be found in theprinciple of the Roman-Dutch law, that although the conductorcannot ordinarily be. ejected from the property. which he has takeuon lease before the expiry of the appointed term, this is permitted
i (1009) A. C. 118.- (1900). 2 K. 3. t:G‘i.
3 (1809) 29 I.. Etch. 73.
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when the conductor has abused the thing hired to him in re conductdmale versetur {Berwick's Voet 212),
In the present case the learned Commissioner has found that thedefendants are responsible for the destruction by fire of the greaterpart of the trees of the old plantation. Now, whether the destruc-tion of these trees is attributable to malicious action on the part ofthe first defendant, as there is reason to suspect, or whether it i*sdue merely to negligence on his part, it is clear that the defendant,under the rule of the Roman-Dutch law which I have cited, is liableto be ejected. The damage caused is not of a trivial nature, or suchas might easily be repaired. The destruction of these trees mustinevitably detract from the value of the property at' the terminationof the lease. The conduct of the defendants in allowing the propertyto be so injured is clearly such an abuse of the position of the lesseeas the Roman-Dutch law contemplates as a ground for the recisionof the lease. In the view'which I take of the legal effect of thefirst defendant's conduct, it is unnecessary to consider how far thedefendants were justified in assigning to others a share of theplanring agreement or lease. In my opinion the judgment of theCommissioner is justified on the grounds which I have stated, andI dismiss -the appeal with costs.
Appeal dismissed.
1912.
Lascelles
C.J.
Perera v.Peries