Raheem and Jayawardene
1044Present: Howard. C.J.RAHEEM, Appellant, and JAYAWARDENE, Respondent.
184—C. R. Colombo, 90,848.
Rent restriction—Premises are reasonably required for occupatidn by landlord—
Burden of Proof—Duty of Court—Ordinance No. 60 of 1942, s. 8, Prov. (c).
In an action for ejectment undertheRent Restriction Ordinance
the burden is castuponthe landlordofproving thatthepremises
are reasonably required for his occupation.
Proviso (c) to section 8 does not cast on the landlord the burden ofmerely establishing a good reason.
The Courthas tobesatisfied, aftertaking into consideration other
matters suchas alternativeaccommodationatthe disposalofthe land-lord and thepositionof thetenant, thattherequirement isareasonable
HIS was an action brought by the plaintiff to eject the defendantfrom premisesNo. 45,Silversmith street, which he had given
on rent to the defendant.
Itwas maintainedon behalf ofthe plaintiff thatherequired the
-premises for his ownresidenceandalso for purposesofhis business.
TheCommissioner ofRequestsheldthat the requestforthe premises
was bona fide and reasonable and gave judgment for the plaintiff.
H. V. Perera, K.C. (with him E. B. Wikremanayake and H. W.Jayewardene), for the defendant, appellant.—The plaintiff’s requestfor the premises in question was not made bona fide. It was, in reality,a consequence of the defendant’s refusal to consent to the forfeitureclause in D 1. Sections 3 and 8 of the Rent Restriction Ordinance,No. 60 of 1942, were intended to protect the tenant. In consideringthe reasonableness of the landlord’s need, under section 8 (c), the Courtmust take into account the conditions of the present time. The reason-ableness of the landlord’s requirement should be judged not from thepoint of view of the landlord but according to the opinion of the Court.See Shrimpton v. Rabbits1 and Camming v. Dan-son2. The correspondingEnglish enactment is 10 & 11 Geo. V., c. 17, section 5 as amended by23 & 24 Geo. V., c. 32, section 3.
A. Rajapakse, for the plaintiff, respondent.—The English Act issubstantially different from our Ordinance. Nevile v. Hardy3 brings outthe difference. In England three ingredients have to be establishedby the landlord. The rule of alternative accommodation is not part ofour law. In Ceylon the only determining factor is the opinion of theCourt. The trial Judge in the present ease was satisfied that theplaintiff’s request was bona fide and reasonable.
Cur. adv. vult-
(1924) 131 L. T. 478.2 (1942) 2 A. E R. 653.
3 (1920) 124 L. T. 327.
HOWARD C.J.—Raheern and J ay ate ar dene
June 7, 1944. Howard C.J.—
This is an appeal by the defendant from a decree by the Commissionerof Requests, Colombo, ordering that he be ejected from premises No. 45,Silversmith street, Colombo, and that the plaintiff be placed in possessionthereof. The learned Commissioner further ordered that the defendantpay damages at Rs. 50 per mensem from July 1, 1943, till the defendantis ejected, and the costs of the suit. The only question for decision iswhether the plaintiff, having regard to the terms of section 8 of the RentRestriction Ordinance, No. 60 of 1942, was entitled to terminate thedefendant’s contract of tenancy and eject him. Section 8 is worded asfollows: —
“ Notwithstanding anything in any other law, no action or proceed-ings for the ejectment of the tenant of any premises to which thisOrdinance applies shall be instituted in or entertained by any Court,unless the Assessment Board, on the application of the landlord, hasin writing authorised the institution of such action or proceedings:
Provided, however, that the authorisation of the Board shall not benecessary in any case where—
(a.) rent has been in arrears for one month after it has become due; or .
the tenant has given notice to quit; or
the premises are, in the opinion of the Court, reasonably required
for occupation as a residence for the landlord or any member' of the family of the landlord or for the purposes of his trade,business, profession, vocation or employment; or
the tenant or any person residing or lodging with him or being
his sub-tenant has, in the opinion of the Court, been guiltyof conduct which is a nuisance to adjoining occupiers, or hasbeen convicted of using the premises for an immoral orillegal purpose or the condition of the premises has, in theopinion of the Court, deteriorated owing to acts committedby or to the neglect or default of the tenant or any suchperson.
For the purpose of paragraph (c) of the foregoing proviso, ‘ memberof the family ’ of any person means the wife of that person, or any sonor daughter of his over eighteen years of age, or any parent, brotheror sister dependent on him.
The plaintiff contended that he requires the premises in question forpurposes of his own residence and also for the purposes of his businessand that in these circumstances by virtue of paragraph (c) -his action ismaintainable. The learned Commissioner, in the course of his judgment,states that the plaintiff’s evidence impressed him as frank and truthfuland that, if the facts spoken to by him are true, he is inclined to thinkthat his request for the premises in question is bona fide and reasonable.If “ reasonably required ” in section 8 (c) of the Ordinance is interpretedas required for good reasons, the reasons spoken to by the plaintiff forrequiring the premises in question for himself seem to be good enough.In these circumstances the action was held, by the Commissioner to bemaintainable.
HOWARD C.J.—Raheein and 3dyawardene
The Commissioner in holding that the request of the plaintiff for thepremises is bona fide no doubt intends to imply that the reasons he givesfor requiring the premises are real and not manufactured merely for thepurpose of obtaining possession of the premises. In these circumstancesit is necessary to explore the position as it existed prior to the plaintiffgiving the defendant notice to quit. The property in question wastransferred to the plaintiff by way of dowry in December, 1942. Hegot married in March, 1942, and then took up his residence in his father-in-law’s house Xo. 496, dalle road. He had previously lived with hisbrother at No. 193, New Moor street, where they carry on business inpartnership. In April, 1943, the plaintiff sent a form of tenancy agree-ment, D 1, for signature by the defendant. In D 1 there was a clausethat, in case of default in the payment of rent, the rent payable in advanceshould be forfeited. The defendant struck out the forfeiture clause andon April 22, 1943, returned the tenancy agreement signed by him in theform D 2. On April 28, 1943, the plaintiff’s Proctors sent the defendanta notice to quit and at the same time informed the defendant that theplaintiff desires to enter into occupation of the premises as he had recentlygot married and had been trying, but without success, to secure a housefor his occupation. In giving evidence the plaintiff states that hisfather-in-law’s other daughter is being married on October 17,1943,
and in accordance with custom he expects this daughter and her husbandto go and live in his father-in-law’s house. Can it be said that the reasonsgiven by the plaintiff for requiring the house for occupation are bona fide?The plaintiff in sending D 1 to the defendant makes no mention of hisrecent marriage and the probability of his requiring the house for hisown occupation. It is only when the forfeiture clause is struck out bythe defendant that the plaintiff discovers that, owing to his recentmarriage, he requires the house for his own occupation. But reliance isnot placed on this reason when the plaintiff gets into the witness-box.He then pleads that there will be no room for him in his father-in-law’shouse in October, 1943, when the other daughter is married and the newson-in-law according to custom takes up his residence. But if the customis that the son-in-law and his bride take up residence with the father-in-law, the plaintiff should continue to live at 496, Galle road. No reasonhas been given why the plaintiff should leave his father-in-law’s houseto make room for the new son-in-law. The plaintiff also maintainedthat because of business reasons it was necessary for him to live at 45,Silversmith street. The business carried on by the plaintiff in partner-sTiip with his brother seems to be of a vague and shadowy character.The partnership makes one shipment a month. The learned Com-missioner in his judgment made no mention of the documents D 1 and D 2and in arriving at the conclusion he did was unmindful of their implications.Having regard to all the circumstances of the case it cannot be saidthat the reasons put forward by the plaintiff are bona fide. In thesecircumstances he has not discharged the burden of proof east upon himby law of showing that the premises are reasonably required for hisoccupation.
Although it is not necessary to do so, I think I should add a few wordson the interpretation which should be given to the words the premises
Yokkomuttu and Saminathan
■are, in the opinion of the Court, reasonably required for occupation as aresidence for the landlord, &e., ” which occur in passage (c) of section 8of the “Ordinance. The learned Commissioner seems to think that thelandlord discharges the burden of proof imposed on him by provingthat he has a good reason for requiring the premises. In the Increase ofBent and Mortgage Interest (Bestrictions) Act, 1920, (10 & 11 Geo. V.,<j. 17) s. 5 (1) (d) the wording is “ the dwelling house is reasonablyrequired by the landlord for occupation as a residence for himself.The Courts in Nevtle v. Hardy1 and Shrimpton v. Rabbits2 have held thatthis clause merely required the landlord to show that his wish was areasonable one. Before, however, he could obtain an order for ejectment,the English law required that he should prove that alternative accom-modation for the tenant was available and also the Court should besatisfied that it was reasonable that an order for possession should bemade. Having regard to the words “ in the opinion of the Courtwhich occur in section 8 (c) of the local Ordinance, I do not think that thewords “ reasonably required ” cast on the landlord the burden of merelyestablishing a good reason, so far as he himself is concerned, for requiringthe premises as in the first part of section 5 (1) (d) of the English Act.The Court has to be satisfied, after taking into consideration othermatters such as alternative accommodation at the disposal of the land-lord and the position of the tenant, that the requirement is a reasonableone and hence section 8 (c) seems to combine the first part of section5 (1) (d) of the English section together with the words “ and, in anysuch case as aforesaid, the Court considers it reasonable to make such anorder or give such judgment ” which appear after paragraph (g) of section5 (1).
Eor the reasons I have given, the order of the Commissioner is set asideand judgment entered for the defendant with costs in this Court and theCourt below.
RAHEEM, Appellant, and JAYAWARDENE, Respondent