020-SLLR-SLLR-2006-V-1-SOYSA-vs.-R.-C.-PERERA.pdf
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Soysa vs. R. C. Perera (Jayasinghe, J.)
165
SOYSAVS.R. C. PERERASUPREME COURTS.N. SILVA, CJYAPA, JAND'
JAYASINGHE, JSC APPEAL 34/2003CA 630/88(F)
D. C. PANADURA CASE NO. 18734/RE8TH 19TH AND 28TH OCTOBER, 2004
Landlord and Tenant-Deterioration of the house let- Relevant time ofdeterioration for ejectment.
The plaintiff sued the defendant for ejectment of the defendant frompremises No. 309, main street Panadura on the ground of arrears of rent anddeterioration of the premises let. The plaintiff abandoned the 1st cause ofaction and pressed the 2nd cause of action on the basis that the defendanttenant had made an opening of the wall in premises No. 309 to reach theadjoining premises No. 307 of which the defendant was also the tenant.
The defendant averred that the said opening was effected in 1970 with theconsent of the plaintiffs father whereas the notice to quit was given in October1983. The District Judge dismissed the action and the plaintiff appealed to theCourt of Appeal.
It was revealed that as per two plans No. 254 dated 24.05.1983 and No.745dated 15.12.1980, the alleged opening of the wall had been effected after1980. By that opening the defendant had converted premise Nos. 307 and 309into one premises and obtained access to premises No. 307. The Court ofAppeal allowed the appeal and gave judgment for the plaintiff appellant. Thedefendant appealed to the Supreme Court.
HELD :
On the basis of the available evidence there was no merit in the appeal ofthe defendant.
166
Sri Lanka Law Reports
(2006) 7 Sri L R.
Case referred to:
1. De Silva v Seneviratne (1981) 2 Sri LR 7
APPEAL from the judgment of the Court of Appeal.
L C. Seneviratne, P. C. with Ranjan Gunaratne for defendant-appellantR. de Silva, P. C. with Harsha Amarasekara for plaintiff -respondent.
Cur.adv.vult.
November 22, 2004JAYASINGHE, J.
The plaintiff- appellant – respondent hereinafter referred to as plaintiff, theowner and land lady of the premises bearing assessment No. 309 MainStreet, Panadura instituted action in the District Court of Panadura againstthe defendant – respondent-appellant hereinafter referred to as the defendantfor ejectment on the ground that the defendant was
in arrears of rent and
for causing deterioration of the premises in suit in terms of section 22
(d) of the Rent Act by making an opening in the common wall thatseparates the said premises from premises No. 307.
It appears that at the trial the plaintiff abandoned the first ground asabove and relied only on the second ground for ejectment.
The defendant was also the tenant of the adjoining premises bearingAssessment No. 307.
It was the position of the defendant that the said opening on the saidwall was effected in the year 1970 with the consent and approval of theplaintiff’s father. Plaintiff however, came to court on the basis that theopening was made between 1980-1983 and that she sent the defendantnotice to quit in October 1983, no sooner she became aware of the structural
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Soysa vs. R. C. Perera (Jayasinghe, J.)
167
alteration causing a deterioration of the premises. The learned DistrictJudge dismissed the plaintiff's action and the plaintiff appealed to theCourt of Appeal. Their Lordship’s having considered the reasoning laiddown in De Silva vs. Seneviratne 1981(1) took the view that it was a fit casefor the Court of Appeal to interfere with the findings on questions of factsince the learned District Judge failed to make a proper evaluation of thefacts placed before him at the trial. On a reappraisal of the evidencedisclosed before the District Court, the Court of Appeal rejected the findingthat the opening on the wall was made in 1970 with the knowledge andconsent of the plaintiff’s father. Court observed that the defendant failedand neglected to respond to the quit notice and replied five months afterthe death of the plaintiff’s father. That approval was obtained from theplaintiff's father. The Court of Appeal was also influenced by the fact thatone Daya Liyanage who owned premises No. 307 was not called as awitness even though he was available to support the defendant’s contentionthat the said opening was made in 1970. The plaintiff relied on SirisenaLiyanage, a surveyor who prepared plan No. 254 dated 24.05.1985 on aCommission issued by Court. He had stated in his evidence that he hadused plan No. 748 dated 15.12.1980 prepared by B. L. D. Fernando markedP3, which did not indicate any entrance in the wall which separatedpremises No. 309 from 307. This evidence established that the entrancein the wall came into existence only after 08.12.1980.
Having rejected the contention of the defendant that the opening wasmade in 1970, the Court of Appeal thereafter considered whether the openingmade in the common wall caused deterioration of the premises in suit.The Court of Appeal on a evaluation of the evidence disclosed in the DistrictCourt held that the strength of the wall was diminished as a result of theopening; that the two separate premises owned by two distinct ownersnamely 307 and 309 in effect was converted into one premises and theopening providing access from one premises to another. These factorstaken together Court held, that opening caused deterioration of the conditionof the premises.
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Sri Lanka Law Reports
(2006) 1 Sri L ft
Having carefully considered the findings of the Court of Appeal, I see nomerit in this appeal of the defendant-respondent appellant. The appeal isaccordingly dismissed with costs.
S. N. SILVA, C. J. — I agree.
YAPA, J. — I agree.
Appeal dismissed.