023-SLLR-SLLR-2003-V-2-SIMON-FERNANDO-v.-BERNADETTE-FERNANDO.pdf
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Sri Lanka Law Reports
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SIMON FERNANDOv
BERNADETTE FERNANDO
COURT OF APPEALDISSANAYAKE, J. ANDSOMAWANSA, J.
A 545/88 (F)
C. COLOMBO 21923/REFEBRUARY 11,
MAY 10 ANDJULY 3,2002
Rent Act, No. 7 of 1972, sections 22 (1A) and 22 1 (bb) – Question of law takenup for the first time in appeal – Mixed question of law and fact – Evidence nec-essary – Prejudice caused to party.
The defendant-appellant contended that in view of the prohibition of institutingan action for ejectment on the ground of reasonable requirement for resi-dence/business spelt out in section 22 i (bb) the plaintiff-respondent cannothave and maintain this action.
Held:
This question of law has been taken for the first time in appeal. It wasnot taken up in the answer. No issue was raised on this question at thetrial. It has not been raised in the notice of appeal and the petition ofappeal and not even taken up when oral submissions were made; itwas only taken up in the written submissions.
It is settled law that a pure question of law which is not a mixed ques-tion of law and fact can be taken up for the first time in appeal but if itis a mixed question of fact and law it cannot be taken up.
The question raised is a mixed question of law and fact.
APPEAL from the judgment of the District Court of Chilaw.
Cases referred to:
Robert Ediriwickrema v U.B.G. Abeytunga -C.A. 523/90 -D.C. Tangalle8649/RE – CAM 14.7.95.
Thalagala v Gangodawila Co-operative Society Ltd., 48 NLR 472
Jayawickrema v Silva — 76 NLR 427
Simon Fernando v Bemadatte Fernando
CA(Dissanavake. J.)|^59
A.K. Premadasa, P.C., with C.E. de Silva for defendant-appellantSunil Cooray with Chitrananda Liyanage for plaintiff-respondent.
Cur.adv.vult.
August 30, 2002DISSANAYAKE, J.
The plaintiff-respondent instituted this action seeking eject- 01ment of the defendant-appellant from premises rented to. him bear-ing No. 61, Bazaar Street, Chilaw, on the ground of reasonablerequirement of occupation by him for the purpose of residence andcarrying on a business in the premises and damages.
The defendant-appellant filed answer denying the avermentsin the plaint and prayed for dismissal of the plaintiff-respondent’saction.
The case proceeded to trial on fifteen issues and at the con-clusion of the trial the learned District Judge by his judgment dated 10
entered judgment in favour of the plaintiff-respondent.
It is from the aforesaid judgment that this appeal is preferred.
At the hearing of the appeal before this Court learnedPresident’s Counsel appearing for the defendant-appellant con-tended that the learned District Judge was in error when he enteredjudgment in favour of the plaintiff-respondent for the following rea-sons:-
That the plaintiff-respondent who came to Court on theground of reasonable requirement of the premises byher for the purpose of conducting a business had 20abandoned that ground and had proceeded on rea-sonable requirement of the premises for her residence.
That the plaintiff-respondent has failed to prove that hehas given notice of action to the Commissioner ofNational Housing under section 22 (1A) of the RentAct, No. 07 of 1972, prior to the institution of this action.
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It is interesting to note that from averments of paragraphs 7,8, 9, and 10 and the contents of issue No. 6 raised by the plaintiff-
respondent taken along with her oral testimony it is clear that theplaintiff-respondent sought ejectment of the defendant-appellant onthe premise that the premises was reasonably required for the pur- .poses of residence and for carrying on a business by her.
Therefore, the contention of the learned President’s Counselfor the defendant-appellant that there was abandonment of theoriginal cause of action is untenable.
In regard to the question whether a copy of the notice to quithad been sent to the Commissioner of National Housing it is perti-nent to observe that the plaintiff-respondent in her testimony hadstated that she sent a copy of the quit notice to the Commissionerof National Housing in compliance with the requirements of section22 (1 A) of the Rent Act. She asserted in her testimony to the factthat such a letter was posted under registered cover to theCommissioner of National Housing and she produced the postalarticle receipt marked P1A which bore the postal date stamp of 8thDecember 1982, and this position has not been contested by thedefendant-appellant.
However after the conclusion of oral submissions, in the writ-ten submissions tendered to Court learned President’s Counselappearing for the defendant-appellant has taken up the legal argu-ment that since the premises in suit had been let prior to cominginto operation of the Rent Act, No. 7 of 1972, and since the stan-dard rent of the premises is below Rs. 100/- per month and in viewof the prohibition of instituting an action for ejectment on the groundof reasonable requirement for residence or business spelt out insection 22 (i)(bb) of the Rent Act, he contended that the plaintiff-respondent cannot have and maintain this action. He cited thedecision of. .the unreported case of this court of Don RobertEdiriwickrema v U.B.G.Abeyatunga 1 in support of his contention.
It has been held in Thalagala v Gangodawila Co-operativeSociety Limited2 and Jayawickrama v Silva 3that a pure questionof law which is not a question which is not mixed with questions offact can be taken up for the first time in appeal.
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CA
Simon Fernando v Bemadatte Fernando
(Dissanavake. J.)
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This question of law has been taken for the first time inappeal. There was no mention of this in the averments of theanswer filed by the defendant-appellant. There was no issue raisedon this question at the trial. This question of law taken for the firsttime in the written submissions has not been raised in the notice ofappeal and the petition of appeal too.
This matter was not even taken up at the time when counselmade oral arguments, in this case. It was only taken up in the writ- 70ten submissions tendered after oral arguments were concluded. Itis settled law that a pure question of law which is not a mixed ques-tion of law and fact can be taken up for the first time in appeal butif it is a mixed question of fact and law it cannot be done. (VideThalagala v Gangodawila Co-operative Society Ltd. andJayawickrema v Silva (supra).
In my view this question is not a pure question of law. It is amixed question of fact and law. To resolve this question necessari-ly evidence led in the case has to be examined.
If this question was averred in the answer filed in the District soCourt by the defendant-appellant and raised in the form of an issueit would have afforded an opportunity to the plaintiff-respondent toexplain the facts and the law relating to this question of law.
Therefore I am of the view that this matter of law which istaken for the first time in appeal by way of written submissions willcause prejudice to the plaintiff-respondent, and hence I disallow it.
Therefore there is no basis for this Court to interfere with thejudgment of the learned District Judge.
I dismiss the appeal with costs.
SOMAWANSA, J. – I agree.Appeal dismissed.