SALEE AND ANOTHER v. VISHVANATHAN

031-SLLR-SLLR-2002-V-2-SALEE-AND-ANOTHER-v.-VISHVANATHAN.pdf


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SALEE AND ANOTHERv.
VISHVANATHAN
COURT OF APPEALWEERASURIYA, J. ANDDISSANAYAKE, J.
CA NO. 104/93 (F)
DC MT. LAVINIA NO. 438/SPLFEBRUARY 01, 2000MARCH 30, 2000JUNE 07, 2000OCTOBER 16, 2000 ANDNOVEMBER 7, 2000
Public Security Ordinance s. 5 – Emergency (Rehabilitation of Affected PropertyBusiness or Industrial) Regulation No. 1 of 1983 -s. 9 (2) and 14 (1)- Is propertyvested in the REPIA? – Premises “not affected property” -To be declared a tenant
Maintainability of action – Abandonment of tenancy raised for first time in appeal
Termination of tenancy.
The plaintiff-respondent instituted action seeking a declaration that he is the tenantof the premises and ejectment of the defendant-respondent. The defendant-appellant denied the averments in the plaint and sought the dismissal of the action.District Court entered judgment in favour of the plaintiff.
On appeal it was contended that –
the premises were vested in the REPIA and, therefore, action is notmaintainable.
possession in fact has been handed over to the defendant-appellant byREPIA.
there was an abandonment of tenancy.
there was a termination of tenancy.
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Held :
Documents P1 and P2 relied upon by the defendant-appellant cannot beconstrued as divesting orders in respect of the affected property, but itwas merely a binding statutory declaration to the effect that the premiseswere not an affected property. The tenancy, therefore, remains unaffected.
As the said property was not affected property by virtue of the declaration(P1) reference to divesting order has no significance. The question whether,on the strength of PI, the defendants took over possession and therefore
, that action is misconceived is not tenable.
The plea of abandonment being a question of fact and law wherein thesurrounding circumstances and the intention of parties are material thedefendant-appellants are precluded from raising it for the first timein appeal.
Trial Judge upon the evidence had come to a finding that the premiseswere not destroyed to the extent of being rendered incapable for use forthe purpose for which it was let, to cause a termination of tenancy.
APPEAL from the judgment of the District Court of Mt. Lavinia.
Cases referred to :
Rajapakse v. Madathi – 1994 – 2 SRI LR 161.
Dona Podinona Ranaweera v. Rohini Senanayake – 1992 – 2 SRI LR 180.
Hameeda v. Arasakularatne – 1999 3 SLR 271.
Faisz Muthapa, PC with H. Withanachchi for defendant-appellants.
Gamini Jayasinghe for plaintiff-respondent.
Cur. adv. vult.
March 12, 2001
WEERASURIYA, J.
The plaintiff-respondent by his plaint dated 24. 04. 1985, instituted 1action against the defendant-appellants, seeking, inter alia, a declarationthat he is the tenant of premises bearing No. 421, Galle Road,Wellawatte and ejectment of the defendant-appellants therefrom anddamages.
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The defendant-appellants in their answer whilst denying avermentsin the plaint, prayed for dismissal of the action.
This case proceeded to trial on 14 issues and the learnedDistrict Judge at the conclusion of the case, by his judgment dated20. 04. 1993, entered judgment for the plaintiff-respondent. This ioappeal has been lodged against the aforesaid judgment.
At the hearing of this appeal, learned President's Counsel appearingfor the defendant-appellants submitted –
that the premises were vested in the Rehabilitation of Propertyand Industries Authority (hereinafter referred to as REPIA) andtherefore the action is not maintainable;
that in any event the action was misconceived as possessionhad been handed over to the defendant-appellants by REPIA.
that there was an abandonment of tenancy by the plaintiff-
respondent;20
that there was a termination of tenancy by operation of law;and
that in any event damages awarded on account of loss oftenancy was excessive.
At the outset it is necessary to mention that the first two groundsreferred to above were raised for the first time at the hearing of thisappeal on the basis that they are questions of law.
Learned President's Counsel emphasized that the case of theplaintiff-respondent was presented in the lower Court on the footingthat the premises had been damaged in the communal disturbances 30and had vested in REPIA and thereafter it was divested.
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It was submitted that a divesting order can be made only in termsof regulation 14 (1) by an order published in the Government Gazetteand in the instant case the property was never divested by recourseto regulation 14 and therefore the property remain vested in REPIAwhen the action was instituted.
It is to be observed that this is not a ground on which the defendant-appellants relied in the lower Court for their contention that the tenancyhad terminated. Their plea that the termination of tenancy had occurredwas founded solely on the common law principle of the destruction 40of the subject-matter. This position of the defendant-appellants wasclearly manifested in issues 11 to 14 formulated at the trial.
The submission that the plaintiff-respondent presented his case inthe lower Court on the footing that premises had vested in the REPIAand thereafter it was divested was disputed by learned counsel appearingfor the plaintiff-respondent.
It is vital to note that in paragraph 9 of the plaint the plaintiff-respondent has not made any reference to a vesting of the premisesand all the matters referred to in paragraph 9 were bare facts sequentiallyrelating to the occurrence of events. To appreciate this position a soreference to the salient features set out in paragraph 9 of the plaintwould be relevant.
that shortly after the damage the defendant-appellants hadwrongfully secured possession of the said premises;
that even after the cessation of the hostilities the plaintiff-respondent's Attorney had failed to obtain possession of thepremises for the reason set out in paragraph 9; and
that the defendant-appellants undertook to take necessarysteps under REPIA law and deliver possession of the premises
to the Attorney of the plaintiff-respondent, but wrongfully failed soto do so.
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It is significant to note that in paragraph 6 of the plaint referencehas been made to the fact that damage was caused to the saidpremises in the communal disturbances that occurred on 25. 07. 1983that the plaintiff-respondent's son Subramaniam had to flee forprotection for safety of his life.
Paragraph 7 of the plaint has made reference to the fact thatdespite some damage being caused to the said premises, particularlyto the fittings and doors, building was capable of being repaired andrestored.
Before proceeding further to examine the matters in issue, it isnecessary to set down the following facts:
That the action relates to business premises bearing No. 421,Galle Road, Colombo 6.
That plaintiff-respondent was the tenant of the premises.
That on 09. 07. 1983, plaintiff-respondent left for Indiatemporarily handing over the business to his son Subramaniam.
That the said' premises were damaged during the period ofcommunal disturbances.
That the defendant-appellants had represented to REPIA thatthey would repair the premises and restore possession thereofto the plaintiff-respondent and had secured an order describedas a 'divesting order1 by the defendant-appellants.
(/) That the defendant-appellants in breach of the undertaking hadcome into possession of the said premises.
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It would appear that the right decision of this appeal dependsentirely upon the interpretation and application of the Emergency(Rehabilitation of Affected Property, Business or Industries) RegulationsNo. 1 of 1983 made under section 5 of the Public Security Ordinance(chapter 40). The following are the relevant regulations:90
9(1) – Every affected property, industry or business shall
with effect from the date these regulations come into force, vestabsolutely in the State free from all encumbrances.
(2) – Where any question arises as to whether any property,industry or business is an affected property, industry or businesssuch question shall be decided by REPIA by a declaration inwriting and such declaration be final and conclusive and shallnot be called in question in any Court in any proceedingswhatsoever.
(1) – Any person authorised in that behalf by REPIA may 100take possession of any affected property, industry orbusiness vested in the State under regulation 9.
-No person shall after the date of coming into forceof these regulations alienate affected property, industry orbusiness arid accordihgly any alienation made in contraventionof this regulation shall be deemed for all purposes to be nulland void.
(1) – No person shall unless he has been authorised inwriting by REPIA, enter, remain in or occupy any affected property.
(1) – Notwithstanding that any affected property, industry or” obusiness has vested in the State by reason of the operation ofthese regulations, REPIA may at any time by order published
in the Government Gazette divest such property, industry orbusiness.
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19 -In these regulations "affected property° means anyimmovable property damaged or destroyed on or after July 24,1983 by riot or civil commotion and includes any immovableproperty used for the purposes of an affected business orindustry.
The correspondence the defendant-appellants and the plaintiff- 120
respondent had with REPIA in chronological order would be helpful
on this issue.
On 02. 09. 1983 the 2nd defendant-appellant made anapplication to REPIA (P1) to seek permission to repair thepremises in suit from her own resources and to hand overpremises to the plaintiff-respondent after effecting repairs.
On 05. 09. 1983 REPIA made a declaration that premisesNo. 421 were not affected property (D2).
On 25. 04. 1984 Vishvanathan by way of an affidavit made an
application to REPIA (P5).130
On 15. 06. 1984 REPIA called upon the defendant-appellantsto restore tenancy to Vishvanathan (P4).
On 25. 06. 1984 1st defendant-appellant by his letter informedREPIA his inability to restore tenancy to Vishvanathan (D3). (I)
(I) On 05. 07. 1984 REPIA informed Vishvanathan that assistancecannot be given with regard to the restoration of the tenancyof the premises (P3), with a copy to the defendant-appellantsstating that divesting order dated 05. 09.1983 is valid authorisinghim to do whatever he desires.
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(g) On representation made by Subramaniam by his letter dated i<o13. 09. 1984 and REPIA by its letter dated 09. 01. 1985 (P6)called upon the defendant-appellants to effect repairs andrestore the tenancy to the plaintiff-respondent.
(b) Nevertheless, 1st defendant-appellant by letter dated 01. 02.1985 (D4) made representation to REPIA and REPIA by letterdated 09. 09. 1987 (P7) declared that premises No. 421 werenot affected property.
It is to be appreciated that the purported authorization in termsof letter D2 dated 05. 09. 1983 referred to in P3, could only havebeen issued on the basis that the premises were affected property. 150
In terms of section 9 (2) of the REPIA regulations where anyquestion arises as to whether any property, industry or business isan affected property, such question shall be decided by REPIA bya declaration in writing and such declaration shall be final andconclusive and shall not be called in question in any Court in anyproceedings whatsoever.
However, P1 and D2 cannot be construed as divesting orders inrespect of the affected property, but it was merely a binding statutorydeclaration to the effect that the premises were not an affectedproperty (vide Rajapaksa v. Madathi)w.160
In the circumstances, it could be rightly asserted that the tenancyof the plaintiff-respondent remains unaffected.
The second legal submission that the action is misconceived asthe possession had been handed over by REPIA has to be viewedvis-a-vis the application to REPIA by P1 seeking to effect repairs usingher own resources with the undertaking that the premises would behanded over to the plaintiff-respondent after effecting such repairs.
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If the said property was not affected property by virtue of the declarationreferred to above the authorisation by P1 and reference to divestingorder has no significance. Therefore, the question whether on the 170strength of authorisation by REPIA the defendants took over thepossession of the property and thus the action is misconceived doesnot arise.
The contention of the learned President's Counsel that there wasan abandonment of tenancy is a question of fact and law. The issueabandonment has neither been pleaded nor has been put in issue.
The plea of abandonment being a question of fact and law whereinthe surrounding circumstances and the intention of parties arematerial, the defendant-appellants are precluded from raising it forthe first time in appeal, {vide Dona Podinona Ranaweera v. Rohini isoSenanayake ).
The contention of learned President's Counsel that by operationof law the termination of tenancy has occurred has to be dealt withnext. The submission of learned President's Counsel that the learnedtrial Judge had applied wrong test in deciding this question is totallyunacceptable. It would be clear on a careful examination of theevidence, that learned trial Judge had not decided on the basis thattotal destruction was necessary for the termination of tenancy. Learnedtrial Judge upon the evidence had come to a finding that the premiseswere not destroyed to the extent of being rendered incapable for usefor the purpose, for which it was let, to cause a termination of tenancy, iso
Learned President's Counsel appearing for the defendant-appellantsplaced much reliance on the complaint made by the plaintiff-respondentmarked P13. It was highlighted that in this complaint there wasreference that business had been destroyed by setting fire and thegoods been looted by unknown people on 24. 07. 1983 during thecommunal riots. However, the evidence revealed that nearly twoweeks after the damage was caused he had been able to go pass
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the premises in a bus and had only a glimpse of the damage beingunable to enter the premises due to prevailing conditions. In thecomplaint he made (P13) he gave an estimate of what he thought 200was the value of the business without including the loss to the buildingdue to his inability to make a correct assessment. However, it isrelevant to note that the photographs marked P14 – P17, he had takenin 1983 when the conditions were conducive for him to enter thepremises, showed that the premises were intact and that damage hadbeen to the fittings and the door. Learned trial Judge having examinedthe relevant material placed before him had rejected the evidence ofthe 1st defendant-appellant and accepted the version of the plaintiff-respondent in regard to the manner in which the damage had beencaused to the building.210
Learned President's Counsel appearing for the defendant-appellants
(3)
cited the case of Hameeda v. Arsakularatne. That case relates toa building between 75-100 years old built with cabbock and plasteredwith lime and the Engineer who testified at the trial made the observationthat the premises were not worth repairing.
The building in the instant case appear to be a two-storeyedbuilding each floor comprising several units and the building itself wasintact. It is desirable to remind ourselves that the damage in thepresent case had been caused during communal riots and a specialauthority was appointed in terms of Emergency Regulations object of 220which was to repair, restore and rehabilitate immovable property whichwere damaged or destroyed. Therefore, the whole aim and object ofthe Emergency Regulations had been the preservation of status quo.
In the circumstances, the facts of the present case are clearlydistinguishable from the facts in Hameeda v. Arskularatna (supra).
The question whether the assessment of damages is excessivehas to be examined next. The submission that the finding of the
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learned District Judge relating to the quantum of damages is notsupported by acceptable evidence is untenable. Learned trial Judgehaving examined that there was a running business and a subsisting 230agency of Lever Brothers estimated the damages at Rs. 18,000 permonth. It is significant that a representative of Lever Brothers gaveevidence giving facts and figures from the company reports. In theabsence of evidence to the contrary, one is justified in accepting suchevidence. However, learned District Judge proceeded to awardRs. 8,000 a month which was much lower than the assessmentfound to be acceptable. In the absence of evidence to the contraryrelating to the actual damages resulting from the loss yet on a modestcalculation, learned District Judge cannot be faulted for holding thatRs. 8,000 a month as a reasonable assessment.240
For the above reasons, I dismiss this appeal with costs.DISSANAYAKE, J. – I agree.
Appeal dismissed.