087-NLR-NLR-V-63-SILVA-Appellant-and-SILVA-Respondent.pdf
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WEERASOORIYA, J.—Silva v. Silva
Present .- Weerasooriya, J., and H. N. G. Fernando, J.
SILVA, Appellant, and SILVA, RespondentS. G. 148—D. C. Kurunegala, 144001M
Lessor and lessee.—Inability of lessee for damages canned by his negligence—Assignment
of lease without lessor's permission—Validity.
The defendant, who was a lessee, assigned his lease without the lessor’sconsent but, a few days later, while he was still in occupation, the leased pre-mises were damaged by fire caused by the negligence of members of the defen-dant’s family. In the action instituted by the lessor against the defendant for;the recovery of damages, the liability of the defendant on the contract of leaseas well as in tort was clearly pleaded by the lessor.
Held, that, even assuming that the lease had been validly assigned despite theabsence of the lessor’s consent, the defendant was nevertheless liable in tort.
Quaere, whether the rights of a lessee under a lease can be assigned withoutthe permission of the lessor where there is no express provision in the lease.
./VpPEAL from a judgment of the District Court, Kurunegala.
D. R. P. GoonetiUeke, with F. R. Dias, for plaintiff-appellant.
M.L. S. Jayasekera, with Hannan Ismail, for defendant-respondent.
Cur. adv. mdt.
December 14, I960. Weerasooriya, J.—
By indenture of lease P2 dated the 25th April, 1956, the plaintiff-appellant granted on lease to the defendant-respondent for a period oftwo years commencing from the date thereof certain premises consistingof three boutique rooms with a cadjan roof. On the 21st January, 1957,the defendant by deed D1A assigned the lease in favour of one PauluAppuhamy. At the same time the assignee gave the defendant thenotice D2A requesting him to vacate the leased premises within fifteendays. But on the 29th January, 1957, while the defendant and hisfamily were still there, a fire originating in the hearth in the kitchen andspreading to the roof destroyed the entire building. The plaintiff seeksin this action to recover as damages from the defendant a sum of Rs. 1,500being the value of the building.
According to paragraph 8 of the plaint the liability of the defendant topay this sum arose from his position as the lessee of the premises, and inthe alternative on the basis that the fire was due to his negligence andcarelessness. The issues framed on these averments were as follows :
“ (3) On 29.1.57 was the defendant in occupation of the saidboutique and premises as lessee of the plaintiff 2
WEERASO ORIYA, J.—Stlva v. Silvd4&&
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(6) Did the fire arise out of any act of negligence or carelessness forwhich the defendant is liable ?
(6) If so, to what damages is the plaintiff entitled V*
Issue No. 5 was objected to by counsel for the defendant on the groundthat particulars of negligence were not pleaded. The District Judgeallowed the issue but only on certain conditions, one of them being thatissue No. 3 is answered in the affirmative. This ruling, for which I canfind no sanction at all in the provisions of the Civil Procedure Coderelating to the framing of issues, necessarily meant that the questionwhether issue No. 5 should be treated as an issue or not was left unde-termined till judgment was delivered. Eventually, having answeredissue No. 3 in the negative, the learned Judge held that issue No. 5 didnot arise for consideration. But in the meantime evidence relevant tothe issue was adduced by the plaintiff as well as by the defendant. Thatevidence, in my opinion, is decisive of this case as it leaves no room fordoubt that the fire was due to the negligence of members of the defen-dant’s family, for which he must take responsibility, It is, therefore,quite immaterial whether at the time when the fire occurred the defen-dant’s occupation of the- leased premises was in the capacity of a lesseeunder the plaintiff, for, even if the defendant was (as he alleged) inoccupation of the premises at the material time with the leave andlicence of Paulu Appuhamy, in view of the negligence disclosed in theevidence he is liable in damages to the plaintiff in tort.
In my opinion issue No. 5 should have been admitted without anyconditions as it arose on the averments in the plaint, in paragraph 8 ofwhich the liability of the defendant on the contract of lease as well as intort was clearly pleaded. The erroneous treatment of issue No. 5 by thetrial Judge seems to have proceeded from a misconception that the actionwas based on the contract of tenancy only.
If the action was so based, the decision of the case may well haveturned on the answer to the question whether at the date of the fire thedefendant was still a lessee or not under the plaintiff. The lease P2 issilent on the right of the lessee to assign the lease. It was part of thedefendant’s case that he obtained the prior consent of the plaintiff tothe assignment D1A. No consent appears in D1A, and the Judge heldthat no consent had, in fact, been given. His finding on the point wasnot convassed by counsel for the defendant at the hearing of the appeal.Despite this finding the Judge held that in the absence of any provisionto the contrary in the lease, there can be a valid assignment by thelessee without the consent of the lessor, and he dismissed the action as heconsidered that by virtue of the assignment, D1A, the defendant was nolonger the lessee under the plaintiff at the date of the fire and was,therefore, not liable under the contract. In holding that D1A operatedas a valid assignment the learned Judge followed the case of Ooonesekere
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Shamsudeen v. Minister of Defence and External Affaire
et al. v. John Sinno1 "which he regarded as binding on him. That case isundoubtedly an authority for the proposition that the rights of a lesseeunder a lease can be assigned without t he permission of the lessor wherethere is no express provision in the lease. The question whether theassignment also results in a transfer of the lessee’s obligations under thelease does not appear to have been expressly considered in that case.But the correctness of that decision, as far as it goes, was doubted inGoonesekere v. Ramanpillai 2, and may have to be examined afresh when asuitable case arises. In the present case, although arguments wereaddressed to us in regard to the validity and effect of the purportedassignment, 1)1 A, I prefer to rest my decision on the ground that thedefendant is liable in damages to the plaintiff in tort in view of thenegligence that has been established.
As regards the quantum of damages, although the plaintiff claimedRs. 1,500, it was elicited in examination-in-chief from one of his ownwitnesses that the reconstruction of the building that was destroyedwould not cost more than Rs. 800. The judgment and decree appealedfrom are set aside and judgment will be entered in favour of the plaintiffin a sum of Rs. 800 with costs here and below.
H. N. G. Fernando, J.—I agree.
Appeal allowed.