Sri Lanka Law Reports
 2 Sri L.R.
COURT OF APPEAL.
A. 786/91 (F).
C. COLOMBO 7301/RE.
Rent Act No. 7 of 1972 as amended by Acts 34 of 1976, 10 of 1977 and 55 of1980 – Section 2 – Section 22(2) (bb) (ii) – Section 22 (1) – (2) – One houseowner – Burden of proof – Contracting out of the statute.
The burden is laid squarely on the plaintiff to establish that he has only oneresidential premises.
The contention that even if the owner had more than one residential premisesand if they were excepted premises yet the owner could maintain the action becusehe had only one premises which fell within one residential premises as contemplatedunder Section 22(1) and (2) cannot be accepted; if one needs to accept this novelconcept, a landlord who has numerous residential premises which are exceptedresidential premises in addition if he was not the owner one premises which fallswithin section 22(1) (2) (bb) he will be entitled to maintain anaction on the groundsof reasonable requirement of the premises for the family is without any merit whenone considers the definition of residential premises under the Rent Act.
It is an accepted principle that parties cannot contract outside the Rent Actwhere the premises is governed by the Rent Act.
APPEAL from the Judgment of the District Court of Colombo.
C. Seneviratne, PC. with Ronald Perera for plaintiff-appellant.
A. K. Premadasa, P.C. with C. E. de Silva for defendant-respondent.
Cur. adv. vult.
This is an appeal from the judgment of the learned District Judgeof Colombo dismissing the plaintiff’s action.
The plaintiff-appellant instituted this action for the ejectment of th^defendant-respondent from premises bearing No. 27 1/2, Sir Earnest
Rajapakse v. Bogoda (Senanayake. J.)
de Silva Mawatha, Colombo 7 in terms of the provisions of section22(2) (bb) (ii) of the Rent Act of 7 of 1972 as amended by 34 of 1976,10 of 1977 and 55 of 1980. It was specially pleaded that the plaintiff-appellant is the owner of the premises and that he does not own morethan one residential premises prior to the institution of the presentaction. Plaintiff gave notice as required by the Rent Act terminating thetenancy and deposited with the Commissioner of National Housing 5years rent of the premises for payment to the defendant-respondent.
The defendant-respondent's position was that he was first a tenantof Lalitha Padmini Rajapakse the plaintiff-appellant’s mother and at hisrequest he attorned to the plaintiff-appellant from September 1987. Hefurther averred that the plaintiff-appellant was an owner of more thanone residential property.
The learned Counsel for the plaintiff-appellant contended that thedefendant-respondent did not establish the deed 'VI'. His contentionwas that the burden was on the defendant-respondent to establishthat the plaintiff-appellant was the owner of more than one residentialpremises. I am unable to accept his contention. The Rent Actspecified that no action or proceedings for the ejectment of the tenantin terms of section 22(1) or (2) shall be instituted or entertained by anyCourt unless where,
rent has been in arrears for a month after it has become due
the premises are in the opinion of the Court reasonablyrequired for occupation as a residence for the landlord or any memberof the family of the landlord.
(bb) This provision is very important in the instant case whichreads as “In the case of premises let to a tenant whether before orafter the date of commencement of this Act, and where the landlord isthe owner of not more than one residential premises".
The burden is laid squarely on the plaintiff-appellant to establishthat he has only one residential premises. The plaintiff-appellant hadfailed to establish that he was only an owner of one residentialpremises. The learned Counsel contended that the word residentialpremises must be construed by referring to the provisions of section<2(4) of the Rent Act. His contention was that there was no evidencethat residential premises mentioned in VI came under the provisions of
Sri Lanka Law Reports
 2 Sri LR.
the Rent Act. His contention was on the basis that even if the ownerhad more than one residential premises and if they were exceptedpremises yet the owner could maintain the action because he hadonly one premises which fell within one residential premises ascontemplated by section 22(1) (2) (bb) of the Rent Act. I am unable toaccept the said contention. This contention is against the intentionand the spirit of the Rent Act. If one were to accept this novel concepta landlord who has numerous residential premises which areexcepted residential premises, in addition if he was only the owner ofone premises which falls within the provisions of section 22(1) (2) (bb)he will be entitled to maintain an action on the grounds of reasonablerequirement of the premises for the family. I am of the view that, thatcontention is without any merit when one examines the definition ofresidential premises under the Rent Act.
The learned Counsel for the appellant contended.that the learnedDistrict Judge had erred in holding that the plaintiff-appellant wasunable to maintain this action in view of the provisions of section 22(7)of the Rent Act. His contention was that there was not an issue raisedby the parties and further contended that the parties have waivedtheir objections. I am unable to accept the said contention. It is anaccepted principle that parties cannot contract out side the Rent Actwhere the premises is governed by the Rent Act. I am of the view thatthe learned District Judge had come to a correct finding of law. Theplaintiff-appellant, in order to maintain this action should haveproduced in evidence, the deed on which he became entitled to thepremises in question to show that it was a gift from the mother. Themother, merely saying that it was gifted by her to the plaintiff-appellantwas not sufficient. I
I am of the view the learned District Judge had come to a correctdetermination on the facts. He had not accepted the plaintiff-appellant’s mother's evidence. In the circumstances, I do not see anyreasons to interfere with the considered judgment of the learnedDistrict Judge. I affirm the judgment and decree and dismiss theappeal with costs fixed at Rs. 5200/-.
EDUSSURIYA, J. – I agree.
RAJAPAKSE v. BOGODA