005-SLLR-SLLR-1996-1-SABOORYIA-BEGUM-V.-HASSAN.pdf

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Sabooriya Begum v. Hassan (Wigneswaran, J.)
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(bb) Such premises, being premises which have been let to thetenant prior to the date of commencement of this Act, are, in theopinion of the Court, reasonably required for occupation as a resi-dence for the landlord or any member of the family of the land-lord.
(IA)Notwithstanding anything in subsection (1), the landlord ofany premises referred to in paragraph (bb) of that subsection shallnot be entitled to institute any action or proceedings for theejectment of the tenant of such premises on the ground that suchpremises are required for occupation as a residence for himselfor any member of his family. If such landlord is the owner of morethan one residential premises and unless such landlord has causednotice of such action or proceedings to be served on the Com-missioner for National Housing.
(IB)Where any action or proceedings for the ejectment of thetenant of any premises referred to in paragraph (bb) of subsec-tion (1) is or are instituted in any Court, on the ground that suchpremises are required for occupation as a residence for the land-lord or any member of the family of the landlord, such action orproceedings shall have priority over all other business of thatcourt.
(IC)Where a decree for the ejectment of the tenant of anypremises referred to in paragraph (bb) of subsection (1) is en-tered by any court on the ground that such premises are reason-ably required for occupation as a residence for the landlord orany member of the family of such landlord no writ in execution ofsuch decree shall be issued by such court until after the Com-missioner for National Housing has notified to such court that heis able to provide alternate accommodation for such tenant.
(ID)Notwithstanding anything in any other law, where a writ inexecution of a decree for the ejectment of the tenant of anypremises referred to in paragraph (bb) of subsection (1) is issuedby any court, the execution of such writ shall not be stayed inany manner by reason of any steps taken or proposed to be com-menced in any court with a view to questioning, varying or set-ting aside such writ.
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(1E)In any proceeding under subsection (1C) the court shall notinquire into the adequacy or the suitability of the alternate ac-commodation offered by the Commissioner for National Hous-ing."
Dr. Justice R.F. Dias in the case of Mendis v. Ferdinands m set outthree categories of comparative needs as between a landlord and atenant which may be considered. He said,
Where the hardship of the landlord is equally balanced withthat of the tenant the landlord's claim must prevail:
Where the hardship to the landlord outweighs the hardship tothe tenant, the landlord's claim must prevail:
Where the hardship to tenant outweighs the hardship to the .landlord, the landlord's action must be dismissed.
In deciding whether or not premises are reasonably required foroccupation as a residence by the landlord or a member of his or herfamily, Justice Dias went on to say that it is the duty of the Judge informing an opinion, to not only ascertain whether the desire of thelandlord is a reasonable one but also to be satisfied on various othermatters like,
what alternative occupation is available to the tenant;
the position of the tenant, and
the relative positions of the Plaintiff and the Defendant.
It is the duty of Court, he said, not only to take into considerationthe situation of the landlord but also that of the tenant together withany factors which may be directly relevant to the acquisition of thepremises by the landlord.
It was held in the case of A.R.M.L.Thamby Lebbe v. RamasamyWthat the bonafides of a tenant's conduct should also be considered.
It may also be not out of place at this stage to refer to certainpassages from the decision in Mowjood v. Pussadeniya and Another^
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pertaining to alternate accommodation mentioned in section 22(1) (c).
Chief Justice Sharvananda at page 294 stated as follows :-
“To treat the words 'alternative accommodation' as being totallyunqualified does not, in my view give effect to the intention of thelegislature.The solicitude shown by Parliament to tenants of premiseswhose standard rent does not exceed one hundred rupees is manifest.In the case of a tenant of premises whose standard rent exceeds onehundred rupees, the landlord may institute action for the ejectment ofthe tenant on the ground of his reasonable requirement and on obtain-ing a decree for ejectment can have him evicted and thrown on thestreets, regardless of whether any alternative accommodation is avail-able to him to shift to or not. Parliament, in the case of tenants ofpremises of the other category has taken them under its protectivewings, may be in view of their economic circumstances, and enjoinedthat such tenants should not be rendered homeless, for no fault oftheirs but should be offered shelter by making available to them alter-native accommodation before writ of execution is issued.
In view of this social objective, the needs and circumstances ofthe tenant ought to have some relevance if the offer of alternativeaccommodation is to be meaningful and not be illusory. The accommo-dation offered to him must be habitable and appropriate to him and themembers of his family. It must be appropriate for a family of his sizeand must have the elementary amenities enjoyed by him in the houseoccupied by him. It must not be located in a far off area with which hehas no local connection, an area where, because of his religion, raceor caste etc., it is unsafe for him to dwell.The nature of the environ-ment where the proposed accommodation is located is a relevant con-sideration in determining whether the new accommodation can fairlybe described as 'alternative'. The alternative accommodation must beroughly comparable with the existing accommodation in the matter ofbasic amenities, rental and appropriateness so that the tenant couldcontinue to lead the mode of life which he had led in the premises fromwhich he is to be ejected. The tenant however should not expect abetter dwelling house than that from which he is to be ejected/
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Thus in carrying out the direction of the Supreme Court in respectof this case it would be useful to keep in mind the above mentionedobservations made in sjmilar cases. This Court will now proceed toscrutinize the submissions made by Counsel for theTenant-Appellantand Landlord- Respondent.
In comparison,
While the Tenant- Appellant was 37 years of age in 1984 thehusband of the landlord was 73 years old. The landlord could not havebeen very much younger.
While the tenant Appellant had six children to maintain, thelandlord had 8 children.
The youngest child of the tenant Appellant who was 2 years oldin 1984 may now be 13 to 14 years and still school going. But thelandlord has five (unmarried) daughters still dependant on their par-ents.
While theTenant-Appellant's husband runs an eating house notfar away from the premises in suit, the Landlord-Respondent has todepend on the munificence of her married daughter for her family'smaintenance and upkeep.
While theTenant-Appellant's family claimed to be firmly estab-lished in the Hulftsdorp area, the Landlord-Respondent was forced toleave her rented house in Nugegoda for want of finances to pay rent atRs. 1,500/- per mensem.The husband of the landlord earned only Rs.2,000/- per mensem as salary and was the sole breadwinner in thefamily.
While the Tenant-Appellant complains that finding houses forlow income groups is most difficult it applies to the Landlord-Respond-ent as well since she is a one house owner unable to get back her onlyhouse and she too belongs to the low income groups.
Even if reasonable requirement has to be determined at thetime of the issue of writ of ejectment the position of theTenant-Appel-lant at the time of trial and judgment in the District Court has not got
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Sabooriya Begum v. Hassan (Wigneswaran, J.)
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any worse now nor the position of the Landlord-Respondent any betternow.
It was argued on behalf of the Tenant-Appellant that leavingHulftsdorp would mean leaving a lucrative business set up at DamStreet by the husband of the Tenant-Appellant with her two sons.
Leaving the premiss in suit at Meeraniya Street does not meangiving up the eating house business set up at Dam Street. Accordingto the decision of the Supreme Court in Mowjood v. Pussadeniya andAnother(6) the alternate accommodation to be found for the Tenant-Appellant by the Commissioner of National Housing would not takehim to a very far off place away from his area of business. A decree forejectment would not throw the Tenant-Appellant on the streets. Ad-equate alternate accommodation would have to be provided by theCommissioner of National Housing before the writ of ejectment couldissue.
Thus there is no doubt that on a comparative analysis of thehardships to the landlord and the tenant in this instance, the hardshipsof the landlord and her family seems to outweigh the hardships to thetenant and her family.
In any event even if the hardship of the landlord is equally bal-anced with that of the tenant, the landlord's claim must prevail. Thefact that no writ of ejectment could issue until alternate accommoda-tion in terms of the Supreme Court decision in Mowjood v. Pussadeniyaand Another is provided by the Commissioner of National Housingshould also be necessarily considered by Court.The representative ofthe Commissioner of National Housing at page 67 of the brief statedas follows :-
SofSooOca go>D<s oO <3e3a>cb. 8® gawcscoed 2.6.81 ®Qs>Saf&o»6a
qzcseca’ o?«Sc3 daSos <Scba eraaSoDOefcgSaemaf eiCoasaof §>^©3SeSmcb. ScfSmDSaO SOz^QD e®® q3es6€5oea«f SO«ioaof @z§Je©MafdDiSss &S)3C3 e£SD®OD&efqj®3 8Saf SafeBanOaO afcbaaof aacssj ©ze3.e®e®do as©’ d:>(3a> cdOdo eraaSoiOd 83«f SQoa oooo qzcJeai 30 ofcS&otS.
oSe8 Safe 300 asO o®doo.
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Thus it would seem that at the date of giving evidence althoughabout 300 decrees had been entered by Courts where the Commis-sioner of National Housing had to find alternate accommodation onlyabout 30 tenants had been found suitable alternate accommodation.Others continued to occupy their premises in suit. The tenant is thusin a protected position.The Supreme Court held in Abeysekera v. Carotidthat the certainty of providing alternative accommodation by the Com-missioner of National Housing to the tenant is a factor that the Courtshould take into consideration in determining the reasonableness of alandlord's requirement.
In comparison to the protected tenant the landlord has no securityof a roof above her head. Her family's future depends on the goodwillof her married daughter.
Again the financial position of theTenant-Appellant seems betterthan the Landlord-Respondent. While the landlord's husband (sole bread-winner) earned a salary around Rs. 2,000/- per month the husband ofthe tenant carried on a lucrative eating house business with his 2 sons.
Finally there is also the question of bonafides of theTenant-Appel-lant to be considered in the light of the reply given by her at page 74 ofthe brief earlier reproduced in this order.
Justice Abdul Cader in Alousius v. Pillaipody(9) held following thedecisions in Abdeen v. Niller and Co. LtdS'0) and A.R.M.L. ThambyLebbe v. Ramasam/B) (supra) that a tenant’s refusal to make an effortto obtain alternate premises will tilt the scales in favour of the landlord.
In the light of all these facts judgment of the learned AdditionalDistrict Judge dated 26.6.84 seems correct and reasonable and there-fore this Court holds in favour of the Landlord-Respondent and dis-misses the appeal with taxed costs payable by Tenant-Respondent.
L.H.G. WEERASEKERA, J. -1 agree.
Appeal dismissed.