047-NLR-NLR-V-60-PIR-MOHAMED-Appellant-and-KADHIBHOY-Respondent.pdf
186
Pir Mchamed v. Kadhibhoy
1957 Present: Basnayaka, C.J., and L. W. de Silva, A.J.
PIR MOHAMED, Appellant, and H. KADHIBHOY, Respondent8. G. 140—D. C. Colombo, 28365
Bent Restriction Act, No. 29 of 194S—Business premises—Subsequent incorporationof the business as a limited company—Right of tenant to continue in occupation—“ Non-occupying tenant
When a tenant carries on business in his individual capacity in the premiseslet to him be does not forfeit the protection of the Bent Restriction Act if hisbusiness is subsequently incorporated as a company, with die tenant holdingmost of the shares.
The English concept of a “ non-occupying tenant ” is not applicable to theRent Restriction Act.
A
■1 APPEAL from a judgment of the District Court, Colombo.
E. V. Per era, Q.O., -with. Carl Jayasinghe and C. Chdlappah, for theDefendants-Appellants.
W. Jayewardeme, Q.G., -with M. I. M. Haniffa and P. Banasinghe,iot the Plaintiff-Respondent.
(1923) Times of Ueylon L. B. 281,
BASNAYAKE, C. J.— Pir Mohamed v. Kadhibhoy
187
October 14, 1957. Basnayake, C.J.—
The plaintiff-respondent who is the owner of premises No. 168 situatedin Fourth Cross Street, Pettah, instituted this action against the defendant-appellant, his tenant, to hare him ejected from the premises on thefollowing grounds:—
(а)that they are reasonably required for his occupation,
(б)that the defendant has sublet the premises to the added-defendant
without his consent in writing in contravention of section 9 ofthe Bent Bestriction Act, and
(c) that the defendant being a non-occupying tenant who has permittedthe added-defendant to enter into occupation is bound to restorepossession of the premises to the plaintiff, and the defendant hasno right to remain in occupation.
The learned trial Judge has decided the first and second grounds in favourof the defendant and the third in favour of the plaintiff. Shortly the.material facts are as follows:—The defendant Haji Habib Haji Pir Moha-med was carrying on business under the business name of Haji Habib & Co.at the premises in question. On 31st March 1952 a company with limitedliability under the name of Haji Habib & Co. (Ceylon) Ltd. was incor-porated with its registered address at the premises in question. Thedefendant owns 11989 out of 12000 shares in this Company. It wasclaimed on behalf of the plaintiff on the authority of the case of Sabapathyv. Kularaine1 that on the incorporation of the Company the defendantbecame a non-occupying tenant who is not entitled to the protectionafforded by the Bent Bestriction Act.
Learned counsel for the respondent does not seek to support thejudgment of the learned District Judge on the ground that the defendantbecame a non-occupying tenant nor does he rely on the case of Sabapathy v.Kularaine {supra), on which the learned District Judge based his judgment.We are unable to agree with the decision in Sabapathy v. Kularatne {supra).That case introduces the English concept of a “ non-occupying tenant ”.We can find no authority in our Bent Bestriction Act for such a course.
Learned counsel for the respondent sought to support the judgmenton the ground that the premises had been sub-let contrary to the termsof section 9 of the Bent Restriction Act No. 29 of 1948. The onus ofproving the Bub-letting is upon the plaintiff. The District Judge hasfound that there is no proof of sub-letting. Learned counsel for therespondent, though invited by Us, was unable to draw our attention toany specific evidence which supported the. claim that the premises hadbeen sub-let contrary to the terms of the enactment. We are unable touphold his contention on this ground.
For the reasons stated by us earlier, the appellant is entitled to Succeed.We allow the appeal and dismiss the plaintiff’s action. The appellantwill be entitled to costs both here and in the court below.
W. de Silva, A. J.—I agree.
1 (1951) 52 N. L. B. 425.
Appeal allowed.