041-NLR-NLR-V-73-R.-D.-W.-GUNAWARDENE-Appellant-and-THE-URBAN-COUNCIL-OF-KALUTARA-Respondent.pdf
WIJAYATILAKE, J.—Cunaicardene v. Urban Council, Kalulara
233
1970Present :Wijayatilake, J.
R.D. W. GUNAWARDENE, Appellant, and THE URBAN COUNCILOF KALUTARA, Respondent
S. C. 69/6S—C. E. Kalutara, 0232
Rent Restriction (A-endmcnt) Act A'o. JO oj 1061—Section 12—Premises used forcon crcial purpose—“Excepted premises"—Rent Restriction Act, s. 27—“ Residential prt iscs ”—Institution of action—Foru-n—“ Place of residence ’*of defendant—Civil Procedure Code, s. 0 (a).
rromi'U's of which tbo landlord is a local authority are “ oxcoptcd premises ”within tho moaning of section 12 of tlio Rout Restriction (Amcndinont) ActNo. 10 of 19G1 if they oro used neither wholly nor mainly for tho purpo3rs ofresidence. However, for tho purposo of determining tho jurisdiction oftho Court in which an action to ovict tlio tonant may bo instituted, suchpromises aro “ a placo of rosidmico of tho defendant ” as contemplated insoction 9 (<i) of tho Civil Procedure Cede. Tho words '* place of residence " insection 9 (a) of tho Civil Procedure Code and •* residontial premises in theRent Restriction Act are not synonymous.
A.PPEAL from a judgment of the Court of Requests, Kalutara.IF. S. Wcerasooria, for tho defendant-appellant.
Garnini Dissanai/alc, for tho plaintiff-respondent.
Cur. adv. vult.
February IS, 1970. Wijayatilake, J.
The only question which has arisen in this Appeal is as to the nature ofthe occupation of the premises in question. Mr. Wcerasooria, learnedcounsel for the defendant-appellant,submits that the plaintiff has failedto prove that these premises are other than residential premises ascontemplated in Section 12 of the Rent Restriction (Amendment) ActNo. 10 of 1901.
Admittedly, the plaintiff is the owner of these premises and the RentRestriction Act is in operation in this area. Section 27 of the RentRestriction Act sets out that “ residential premises ” mean premises forthe time being occupied wholly or mainly for purposes of residence.Therefore the question arises in the instant case whether the premises arewholly or mainly occupied for purposes of residence. If so it would notbe open to the plaintiff to pursue this Action in view of the protectionextended by the Rent Restriction Act.
Mr. Dissauayakc, learned Counsel for the appellant-, submits that onthe evidence led in this case both for the plaintiff and the defendant it isclear that the defendant resides elsewhere and he is using these particularpremises for a commercial purpose—namely betel selling. The Acting •
234
WUAYATILAKE, J.—Gunatcardcnr. v. Urban Council, Katulara
Secretary of the Plaintiff Council has spoken to the fast of betel selling.The defendant has admitted that he lives at Koholana and he carries onhis business of betel selling in Koholana Town. He has categoricallystated that he has left a relation in these premises who carries on hisbusiness of selling betel. Thus in the. light of Section 27 it would appearthat these premises are neither wholly nor mainly used for purposes ofresidence and they would therefore be deemed to be “ excepted ” premiseswithin the meaning of the Rent Restriction Act.
As Mr. Wcerasooria has submitted the evidence led on behalf of theplaintiff is barren and meagre but in my opinion the defendant has in hiscross-examination made a significant admission in regard to the nature ofthe occupation of these premises and the learned Commissioner liasaccordingly held with the plaintiff.
There is another aspect to the question which has arisen. On myinvitation this Appeal was listed for further argument bn 9.12.69 as anearlier date suitable to both Counsel was not available. On a perusal ofthe pleadings in this case it is quite clear that both parties have gone onthe footing that the defendant is resident in the premises from which he issought to be evicted. The plaint sets out the address of the defendantas the premises in question and it avers that he is resident at Kalutara.There can be no doubt whatever that the residence at Kalutara mentionedtherein is in reference to tire address of the defendant given in the caption.The defendant had admitted this averment and the Court has entertainedthe plaint and exercised jurisdiction on this basis.
Tho jurisdiction in the instant case is determined by Section 9 (a) of theCivil Procedure Code—“ the place of residence of the defendant ”.Having pleaded thus is it open to the plaintiff in the same breath to saythat the defendant is not resident in these premises ?
Mr. Weerasooria has drawn my attention inter alia to the case ofMend is v. Perera1 where Pereira J. held that a person is said to" reside ” in a place as set out in Section 9 (a) C.P.C. where ho hashis family establishment and home ; and the Divisional Bench judgmentIn re Gooneivardene2 where in Insolvency proceedings it was held thata man’B residence is not dependent altogether on the ph3’sical occupationof any house.
Mr. Dissanayake submits that the averment in the plaint in regard toresidence is that tho defendant so resides for tho purpose of carryingon business. He relies on the case of Davies v. British Geon Ltd.3where it was held that there is no distinction between the words“ residing " and “ carrying on business ’* in relation to a corporation -under the English procedural law. He accordingly submits that thedescriptive word “resides ” as used in Section 9 (a) C.P.C. is wide enoughto include an individual who is not resident but in occupation for thepurpose of carrying on business. I am unable to agree with thisinterpretation.
* 0909) 13 N. L. R. 41.* 0^3) 24 N. L. R. 431.
* 1956 A. E.R. 404.
Jailhun Umma v. Samaranayale
235
In the case of Cassim v. Saibo1 Macdonell C.J. (with Dalton S.P.J.agreeing) held that though a man can have but one domi. il at anymoment there is nothing to prevent him from having at one time two ormore “ residences ”—within the meaning of Section 9 (a).
Jn my opinion the Urban Council of Kalutara having come into Courton the basis that the defendant 13 “ resident ” in the premises in questionas contemplated under Section 9 (a) C.P.C. and invited the Court toexercise jurisdiction accordingly it would not be open to them to nowwithdraw from this position. If this submission of the plaintiff that thedefendant is not resident in these premises is upheld the result would bethat the. Court has been misled into entertaining the plaint and assumingjurisdiction. I would accordingly hold that the premises in question are“ a place of residence of the defendant ” as contemplated in Section 9 (a)C.P.C. However, the matter does not end there as we have to ascertainwhether these premises arc residential " premises ” within the meaning ofthe Rent Restriction Act. The words “ place of residence ” in Section0 (a) C.P.C. and “ residential premises ” in the Rent Restriction Act arenot synonymous. Section 27 defines “ residential premises ” as anypremises for the time being occupied -wholly or mainly for the purposes of .residence and "business premises ” as any premises other than residentialpremises as defined above.
On the evidence led in this ease, as I have already observed, on theadmission of the defendant himself, these premises are occupied neitherwholly nor mainly for the purposes of residence. In the circumstancesthey would be “ business premises ” within the meaning of the RentRestriction Act.
I would accordingly dismiss the appeal with costs.
Appeal dismissed.