093-NLR-NLR-V-38-PUNCHISINGHO-v.-DE-SILVA.pdf
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MAARTENSZ J.—Punchisingho v. de Silva.
31035Present: Maartensz and Koch JJ.
PUNCHISINGHO v. DE SILVA.247—D. C. Kurunegala, 17,468,
Landlord and tenant—Leased premises closed by local authority under procla-mation—Prohibition order pending structural alterations—Remissionof rent—Roman-Dutch law.
A tenant is entitled to claim a remission of rent when the leasedpremises are closed by order of an Urban District Council under aproclamation issued under the Quarantine and Prevention of DiseasesOrdinance.
Where an order was issued prohibiting the occupation of the premisesuntil certain structural alterations were effected and it was not theduty of the tenant to effect such alterations,—
Held, that the tenant was entitled to a remission of rent during theperiod.
^^PPEAL from a judgment of the District Judge of Kurunegala.
it. L. Pereira K. C. (with him N. E. Weerasooria), for plaintiff, appellant.H. V. Perera, for defendant, respondent.
Cur. adv. vult.
October 29, 1935. Maartensz J.—
The plaintiff-appellant sued the defendant for the recovery of a sumof Rs. 720 which he claimed to be due to him in terms of a deed No. 989dated July 1, 1929, granted by him to the defendant. By this deedthe plaintiff transferred to the defendant his interest in indentures oflease No. 10328 dated April 5, 1921, and No. 7437 dated September 10,1923, executed by Roland de Silva in favour of the plaintiff anddefendant.
By indenture No. 10328 Roland de Silva demised to the plaintiff anddefendant premises bearing assessment No. 37 in Bazaar Street in thetown of Kurunegala for a term of 8 years and 9 months from April 1,1921, for a sum of Rs. 3,150 which was paid in advance. By indentureNo. 7437 the lessor leased the same premises to the plaintiff and defendantfor a term of 20 years from January 1, 1930, for a sum of Rs. 3,600which was paid in advance.
Both indentures provided that the lessor shall effect the necessaryrepairs during the continuance of the lease.
The plaintiff and defendant were carrying on business in partnershipas general merchants at the dates when the identures were executed.The partnership was dissolved by indenture No. 986 dated July 1, 1929.Indenture No. 989 was executed on the same date.
This deed recites the terms of the indenture of lease No. 10328 andNo. 7437 and that Punchi Sinno (the plaintiff lessee) had agreed to
MAARTENSZ J.—Punchisingho v. de Silva.
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convey to Don Hendrick de Silva (the defendant lessee) his leaseholdinterest in premises No. 37 (now altered to 42) for the unexpired termand continues as follows :—
“Now this indenture witnesseth that the said party of the firstpart in consideration of the sum of Rs. 40 only being one month'srent in advance well and truly paid to the said party of the first part(the receipt whereof the party of the first part hereby acknowledges)and of the further covenants hereinafter on the part of the party ofthe second part to be performed doth hereby let, demise, and sub-lease unto the party of the second part his heirs, &c., the premiseshereinafter fully described in the schedule hereto together with thetiled buildings and trees and everything standing thereon.
“To hold the said premises unto the said Lokuge Don Hendrickde Silva and his aforewritten for the term of 20 years and 6 monthscommencing from the first day of July, 1929.
“ Yielding and paying therefor the clear monthly rent of Rs. 40only by the said party of the second part to the said HewawedigePunchi Sinno (the party of the first part above referred to) at the endof each and every month ”.
This indenture provided that the party of the second part Shall effectall repairs …. as covenanted to be done observed and performedto and with the said Roland Thomas Douglas Christopher de Silva in theabove recited indenture of lease in respect of the said premises and shallat the expiration of the lease hereby granted deliver up the said premisesto the said party of the first part in the same state and condition assame is now delivered to the party of the second part.
The sum sued for, Rs. 720, represents the rent payable under theindenture 989 from August 1, 1932, to January 31, 1934.
The defendant’s answer to the claim is that he was deprived of theuse of the premises from August 15, 1932, up to date by reason of (a)the Urban District Council proclaiming the Bazaar street a plague-infected area under the Quarantine and Prevention of Diseases Ordinanceand evacuating the premises in Bazaar street including the premisesin question of their inmates, (b) a prohibition order dated December 24,1932, served upon the landowners to effect various structural alterationsand prohibiting occupation of the said premises unless and until suchalterations were made.
The proclamation was withdrawn on April 27, 1933. It was concededby Counsel for the appellant that the plaintiff was not entitled to therent for the period during which the proclamation was in force.
The issues with which this appeal is concerned are the following : —
Is a sum of Rs. 720 due to the plaintiff on account of rent ?
Did the U. D. C. prohibit the reoccupation of the building duringthe period in question until certain alterations mentioned in documentD 1 were effected?
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MAARTENSZ J.—Punchisingho v. de Silva.
Is it incumbent on the plaintiff or the lessor to effect thesealterations under the lease referred to in the plaint?
Had the defendant the use of the premises during the period inquestion ?
If not is he liable to pay rent?
The first question to be decided is whether the indenture 989 is a sub-lease or an assignment of the plaintiff’s rights in the indentures of leasenumbered 10328 and 7437.
It was contended by appellant that the recital showed that the partiesintended the deed No. 989 to be an assignment of the leases and that itshould be so construed. I am quite unable to accede to this contentionas it is quite inconsistent with the terms of the operative clause whichis in all respects appropriate to a sub-lease. In fact the words let demiseand sub-lease are used in the passage which sets out the interest conveyedto the defendant, the consideration for the transfer is described as rent;and provision is made for the surrender of the premises at the terminationof the term of the lease in the same state and condition as it was whendemised.
I accordingly hold that the indenture 989 is a sub-lease and that theliability of the defendant must be determined by the Roman-Dutchlaw governing the relations between a lessor and lessee.
The law is laid down in Wille on Landlord and Tenant, p. 391,thus : —
Vis major or casus jortuitus.—A tenant is entitled to remission ofrent either wholly or in part where he has been prevented either entirelyor to a considerable extent from making use of the property for thepurposes for which it was let, by some vis major or casus jortuitus, providedalways that the loss of enjoyment of the property is the direct andimmediate result of the vis major or casus jortuitus, and is not merelyindirectly or remotely connected therewith. This statement of theCommon law was deduced by Solomon J. from the leading authoritieson the subject in the case of Hansen, Schrader & Co. v. Kopelowitz
In view of legislation in the Cape it was held there that a tenantwas not entitled to claim remission of rent where the leased premiseswere closed by the authorities acting under an Act of Parliamentsuch as the Public Health Act—Wille, p. 392. We have no suchlegislation.
If the duty of making the alteration directed by the prohibitoryorder D 1 lay on the plaintiff the defendant would in my opinion beentitled to resist the claim on the ground that he was prevented fromhaving beneficial use of the premises leased to him.
The next question is whether the duty of making the alterationslay on the plaintiff or the defendant.
The appellant contended that it was the defendant’s duty to carryout the directions of the phohibitory order as the indenture provided
*(1903) T. S. 718.
MAARTENSZ J.—Punchisingho v. de Silva.
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that he should effect all repairs. The respondent’s reply to this con-tention was that the order D 1 was not a direction to make repairs butto make constructional alterations which did not come under the categoryof repairs.
The order D 1 is in the following terms : —
“ THE QUARANTINE AND PREVENTION OF DISEASESORDINANCE, 1897.”
Buildings evacuated during the Plague Epidemic.
It is hereby notified that the improvements shown below should be carriedout before the. building bearing assessment No. 42" situate in Bazaar streetis reoccupied.
2. On completion of the works, written permission will be given by mefor the use of the said building for human habitation.
Repairs and alterations referred to : —
(Sketch not reproduced.)
Re quirements—V entilation.
Rooms at the back of wall should be demolished and rebuilt if necessarywith windows and doors in walls, and joined to main roof thus :
Two dormer windows should be inserted in wall.
Floors to be concreted 4" thick. Wall should be cement-rendered i"thick and top edges splayed.
Corners of walls should be rounded off.
Roof timbers should be clay washed.
No lofts will be allowed.
Kitchen may be built as per type 8 ft. away from the last wall, and also thebath room.
Latrine is situated within back lane and should be shifted to a point borderingthe back lane.
P. Tambiraja,Chairman, U. D. C.
N.B.—Any reconstructions should be carried. out behind the street lineindicated by a black line on the wall
The order clearly requires architectural changes in the building—aprocess which is not implied in the term repairs. Repair is defined inthe Shorter Oxford English Dictionary as the act of restoring to a soundor unimpaired condition; the process by which this is accomplished; theresult obtained by the restoration of some material thing or structureby the renewal of decayed or worn out parts by refixing what has becomeloose or detached. This definition would not apply to the changesdirected in the order.
Wille on Landlord and Tenant, pp. 428 and 429, lays down that“ If the tenant has converted or altered the leased property or a portionof it without the landlord’s consent, and he fails to reconvert it to its
MAARTENSZ J.—Punchising ho v. de Silva.
419
that he should effect all repairs. The respondent’s reply to this con-tention was that the order D 1 was not a direction to make repairs butto make constructional alterations which did not come under the categoryof repairs.
The order D 1 is in the following terms : —
«THE QUARANTINE AND PREVENTION OF DISEASESORDINANCE, 1897.”
Buildings evacuated during the Plague Epidemic.
It is hereby notified that the improvements shown below should be carriedout before the. building bearing assessment No. 42" situate in Bazaar streetis reoccupied.
2. On completion of the works, written permission will be given by mefor the use of the said building for human habitation.
Repairs and alterations referred to :—
(Sketch not reproduced.)
Re quirements—V entilation.
Rooms at the back of wall should be demolished and rebuilt if necessarywith windows and doors in walls, and joined to main roof thus :
Two dormer windows should be inserted in wall.
Floors to be concreted 4" thick. Wall should be cement-rendered i"thick and top edges splayed.
Corners of walls should be rounded off.
Roof timbers should be clay washed.
No lofts will be allowed.
Kitchen may be built as per type 8 ft. away from the last wall, and also thebath room.
Latrine is situated within back lane and should be shifted to a point borderingthe back lane.
P. Tambiraja,Chairman, U. D. C.
N.B.—Any reconstructions should be carried. out behind the street lineindicated by a black line on the wall
The order clearly requires architectural changes in the building—aprocess which is not implied in the term repairs. Repair is defined inthe Shorter Oxford English Dictionary as the act of restoring to a soundor unimpaired condition; the process by which this is accomplished; theresult obtained by the restoration of some material thing or structureby the renewal of decayed or worn out parts by refixing what has becomeloose or detached. This definition would not apply to the changesdirected in the order.
Wille on Landlord and Tenant, pp. 428 and 429, lays down that“ If the tenant has converted or altered the leased property or a portionof it without the landlord’s consent, and he fails to reconvert it to its
420
Mohamed Lebbe y. Coder Lebbe.
original condition by the expiration of the lease, he will be liable indamages to the landlord” (Voet 19, 2, 9), and he refers to a case where“a building with a wooden floor was leased, and the tenant expresslyagreed to restore the premises at the expiration of the lease in ‘likegood order and repair’; owing to the plague the town council requiredthat a cement floor should be substituted, and the tenant, at his ownexpense, and with the landlord’s knowledge, made the requisite alteration”and it was held that as the landlord had not waived the condition thatthe premises should be restored to him in ‘like good order and repair’the tenant was liable to him for damages through not restoring thepremises to their original condition before the expiry of the lease. Onthe principle laid down in this case any alteration of the premises by thedefendant would be a breach of the condition in deed 989 that the lessee“ shall at the expiration of the term hereby granted deliver up thepremises to the said party of first part in the same state and conditionas same is now delivered to the party of the second part
This provision in the lease manifestly excludes any interpretationof the term repairs as applying to alterations.
I am accordingly of opinion that the appeal should be dismissed withcosts.
Koch J—I agree.
Appeal dismissed.