COURT OF APPEALJAYASINGHE, J.
CA. 953/97 (Rev)
D. C. COLOMBO 8012/RE27th APRIL, 1999.
03rd FEBRUAY, 2000.
Landlord and Tenant – Rent Act No. 7 of1972- Act, No. 55ofl 990, S. 22( 1)2(A), S.22(2) (b), S.22(l) (bb), S.22(7). S.48, – Single House owner – Landlord- Married Women's Property Ordinance – Matrimonial Rights andInheritance Ordinance S5(l) (2) (3) (9), S. 18 – Community oj property -Roman Dutch Law – Writ pending appeal – Civil Procedure Code S. 763 ■Can a stay order be granted.?
The Plaintiff Respondent instituted action in terms of S.22(2) (bb) of theRent Act as amended. The District Court held in favour of the Plaintiff. TheDefendant – Petitioner appealed against the said Judgment – The PlaintiffRespondent sought writ pending appeal which the District Court granted.
Moving in Revision the Defendant Petitioner contended that, theCourt did not have jurisdiction as under S.22(2) (1) (bb) an action canbe instituted only on the ground that the landlord is the owner of onehouse. It was contended that the Plaintiff and her husband have twohouses, and the action therefore was not properly and legally instituted.
In view of Section 22(1) (2A) read with Section (2B) of the Rent Act theDistrict Court had no discretion to stay the execution of Writ as Court hadentered decree for ejectment under the above provisions – thus theDefendant is not entitled to a stay order.
Provisions of S.22(2) (bb) is the law applicable to a landlord who is aowner of one house. The wording in Section 22(1) (bb) and the wordingin Section 22(2) (bb) are different.
When one considers the provisions in the Married Womens PropertyOrdinance – Section 5(1) (2) (3) (7), Section 10, Section 18 and theprovisions in the Matrimonial Rights and Inheritance Ordinance, it isclear that the concept of Roman Dutch Law of community of property isnot in force in Sri Lanka. In such a situation one cannot say that a wife
Prema v. Ariyananda
who is a single house owner cannot maintain an action for ejectment ofa tenant merely because her husband is also an owner of another house.
APPLICATION in Revision from an order of the District Court of Colombo.
Cases referred to :
S. A. S. SeUcumtUaMowlanavs. P. Arunasalama- 1988-2CALR159.
Jiffrey vs. Esufali – [1998) 2 Sri L. R. 41.
Ms. Padmarajl for Defendant Petitioner.
Raryan Suwandaratne for Plaintiff Respondent.
Cur. adv. vult.
March 28, 2000.
JAYAWICKRAMA, J.This is an application for revision and restitution inintergrum to set aside the judgment dated 16.08.1995delivered on 01.09.1995 and the order dated 02.12.1997 of thelearned Additional District Judge of Colombo, wherein he hasentered judgment in favour of the Plaintiff and allowed thewrit of execution as prayed for by Plaintiff. The Plaintiff-Respondent instituted action in the District Court of Colomboagainst the Defendant-Petitioner in terms of Section 22(2) (b)of the Rent Act No. 7 of 1972 as amended by Act No. 55 of 1980.The learned Additional District Judge held in favour of thePlaintiff. The Defendant-Petitioner filed an appeal No. 606/95against the judgment which is pending in this Court. ThePlaintiff-Respondent filed an application for writ pending appealdated 18.09.1996 under Section 763 of the Civil ProcedureCode. The Defendant-Petitioner filed his objections againstthis application and the learned Additional District Judgeallowed the application for writ pending appeal on 02.12.1997.
The learned Counsel for the Defendant-Petitionersubmitted that the learned District Judge did not havejurisdiction, as under Section 22(2) (1) (bb) an action can
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be instituted only on the ground that the landlord is theowner of one house. She contended that the evidence of thePlaintiff-Respondent revealed that the Plaintiff and herhusband have two houses. The Plaintiff in giving evidenceadmitted that her husband is the owner of the house at Gallewhere they are living. Learned Counsel further submitted thatan order for writ can only be made if the action is properly andlegally instituted.
According to Section 22(1) (2A) “where a decree for theejectment of the Defendant of any premises referred to inparagraphs (bb) of Section (2) is entered by any Court or on anyof the grounds referred to in the paragraphs, the Court shallforthwith issue a writ in execution of the decree to the Fiscalof the Court requiring and authorizing him to deliver vacantpossession of the premises to the landlord of such premises.”
According to sub-section (2B) “notwithstanding anythingin any other law, where a writ in execution of the decree forthe ejectment of the tenant of any premises referred to inparagraph (bb) of sub-section (2) is issued by any Court, theexecution of such writ shall not be stayed in any manner byreason of any appeal from the judgment of such Court.
In view of the above provisions the learned District Judgehad no discretion to stay the execution of writ as he hasentered decree for ejectment under the above provisions. Inview of the above imperative provisions the Defendant-Petitioner is not entitled to apply for a stay order.
The learned Counsel for the Defendant-Petitionersubmitted that as the Plaintiff-Respondent is the owner ofthe house No. 21, Lumbini Road, Dalugama which is thesubject matter of this action and that her husband is theowner of another house in Galle, the concept of one houseowner cannot be maintained in this case. Therefore shecontended that the judgment of the learned AdditionalDistrict judge is manifestly wrong, and in such a situation the
Prema v. Ariyananda
Plaintiff-Respondent is not entitled to a writ of possession. Thelearned Counsel contended that the words one house ownerwas legally interpreted by the Court of Appeal in S. A. S.Sellamullah Mowlana vs. P. ArunascUarriv. It was held in thatcase, that the word “landlord” in Section 22(1) (bb) and Section22(7) means landlord and (or his spouse) and that as thePlaintiffs wife did not own more than one residential premiseshe was entitled to maintain the action. In that case the issueto be decided was whether a husband who was not the ownerof a house could maintain an action on behalf of his wife whowas the owner of one house. In the instant case the facts aredifferent.
According to the interpretation Section 48 the word“landlord" in relation to any premises means the person for thetime being entitled to receive the rent of such premises andincludes any tenant who lets the premises or any part thereofto any sub tenant. According to the above interpretation of theword landlord in the Rent Act, even a tenant could be alandlord for the purpose of the Act. In such a situation onecannot say that the word landlord means a family unit, for thesimple reason that the tenant may not be a member of thefamily. In any event in Mowlana vs. Amnasalam (supra) thecourt interpreted the word “landlord" in Section 22(1A) and inSection 22(7) and expressed the view that the word “landlord”should be given an extended meaning to include a spouse. Inthe above case the Plaintiff was not the owner of the premisesin suit and it was owned by his wife and therefore the Plaintiffwas acting on behalf of his wife who was the actual owner ofthe premises. On that basis the Court held that the word“landlord" in Section 22(1) (bb) and Section 22(7) meanslandlord and/or his spouse and that as the Plaintiffs wife didnot own more that one residential premises he was entitled tomaintain the action.
When one considers the above judgment it seems thatthere could be a landlord who is a tenant, but need not be theowner of the premises. But the provisions of Section 22(2) (bb)
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is the law applicable to a landlord who is a owner of one house.The wording in Section 22(1) (bb) and the wording in Section22(2) (bb) are different. Hence I agree with the submissions ofthe learned Counsel for the Plaintiff-Respondent-Respondentthat the above case is not applicable to the situation in thiscase.
In Jiffrey vs. Esufalt21 G. P. S. de Silva, C. J. held that:-
“Section 22(2) (bb) (11) of the Rent Act is intended to benefita category of persons who may for convenience be describedas “single house owners". This, however, does not meanthat ownership of one house or a part of house is a conditionprecedent to the institution of an action in ejectment."
“Section 22(7) is intended to protect a tenant from evictionby a person who had purchased the premises over thehead of the tenant and thus becoming the new landlord.
At this stage we wish to advert to certain provisions inour law which would assist in adopting the above interpreta-tion. According to Section 5(1) of the Married Women’s Prop-erty Ordinance, “a married woman shall, in accordance withthe provisions of this Ordinance, be capable of acquiring,holding, and disposing by will or otherwise of any movable orimmovable property as her separate property, in the samemanner as if she were a feme-sole, without the intervention ofany trustee".
According to sub section (2) of the same Section “a marriedwoman shall be capable of entering into, and rendering herselfliable in respect of and to the extent of her separate propertyon, any contract, and of suing and being sued, either incontract or in tort, or otherwise, in all respects as if she werea feme-sole, and her husband need not be joined with her asPlaintiff or Defendant, or be made a party to any action or otherlegal proceedings brought by or taken against her; nor shall hebe liable, merely on the ground that he is her husband, in
Prema v. Ariyananda
respect of any tort committed by her and any damages or costsrecovered by her in any such action or proceeding shall be herseparate property; and any damages or costs recovered againsther in any such action or proceeding shall be payable out of herseparate property, and not otherwise.
According to sub section (3) every contract hereafterentered into by a married woman otherwise than as agent – –
shall be deemed to be a contract entered into by herwith respect to and to bind her separate property whethershe is or is not in fact possessed of or entitled to anyseparate property at the time when she enters into suchcontract;
shall bind all separate property which she may at thattime or thereafter be possessed of or entitled to: and
shall also be enforceable by process of law againstall property which she may thereafter while discovert bepossessed of or entitled to.
According to section (7) of the same Ordinance everywoman who marries after the commencement of this Ordinanceshall be entitled to have and to hold as her separate property,and to dispose of in manner aforesaid, all movable andimmovable property which shall belong to her at the time of hermarriage or shall be acquired by or devolve upon her aftermarriage, including any wages, earnings, money, and propertygained or acquired by her in any employment, trade, oroccupation in which she is engaged, or which she carries onseparately from her husband, or by the exercise of any literary,artistic or scientific skill. Similar provisions are enacted inSection 10 of the same Ordinance as regards property acquiredafter the commencement of the Ordinance by a womanmarried before the commencement of the Ordinance and suchproperty shall be held by her as if unmarried. According toSection 18 she is entitled to the same remedies both civil and
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criminal for protection and security of her separate propertyas if such property belonged to her as a feme-sole.
Similar provisions are enacted in the Matrimonial Rightsand Inheritance Ordinance.
When one considers the above provisions of law it is clear. that the concept of Roman Dutch Law of Community ofProperty is not in force in Sri Lanka. In such a situation onecannot say that a wife who is a single house owner cannotmaintain an action for ejectment of a tenant merely becauseher husband is also a owner of another house.
In the instant case the Plaintiff has a house in Dalugamaand she wants to recover that house for the purpose of theeducation of her children. She has no other houses except thehouse which is the subject matter of this case. Even thoughadmittedly her husband has a house in Galle it will not affecther rights as a single house owner. If one is to accept that a wifeis not entitled to maintain an action as a single house owneron the mere fact that the husband also is a owner of anotherhouse, there may arise situations where the husband desertshis wife or due to some other family problem she cannot livewith the husband she may be left without a house to reside. Amarriage is a contractual agreement which governs theirrelationship. Such a contract will not-deprive theirindividual rights to the ownership of properly. If one is toaccept the argument of the learned Counsel for the Defendant-Petitioner, it would cause grave and irremediable injustice toa one house owner wife.
In this instance, therefore on the admitted facts thePlaintiff-Respondent is the landlord and a person permitted bySection 22(2) (bb) of the Rent Act No. 7 of 1972 as amended byAct No. 55 of 1980 to be entitled to maintain an action subjectof course to the bar contained therein, namely, that suchlandlord should own no house or own not more than oneresidential premises. The adjudication on the facts have not
Prema v. Ariyananda
been sought to be assailed in appeal. The ownership of thepremises in suit was not the detenninable question of being abar to the maintainability of the action. The question in issuewas whether the landlord was an owner of not more than oneresidential premises which simply meant whether the landlordowned any house or more than one house.
This Court therefore sees no reason, to interfere withthe judgment of the learned District Judge dated 01.09.1995and the order dated 02.12.1997. The application for revisionand restitutio in intergrum is dismissed with costs fixed atRs. 5,000/- payable by the Defendant-Petitioner to thePlaintiff-Respondent.
JAYASENGHE, J.Application dismissed.
– I agree.
PREMA v. ARIYANANDA