003-SLLR-SLLR-2005-V-1-SRI-KRISHNA-CORPORATION-LIMITED-v.-GENERAL-SALES-COMPANY-LIMITED.pdf
SCSri Krishna Corporation Limited19
V. General Sales Company Limited
SRI KRISHNA CORPORATION LIMITEDV.
GENERAL SALES COMPANY LIMITED
SUPREME COURT,
BANDARANAYAKE.JDE SILVA, J, AND' JAYASINGHE, JSC.(CHC) NO. 25/99AH.C. (CIVIL) NO. 47/96(1)
28TH MARCH, 9TH AND 31 ST JULYAND 8TH AUGUST, 2003
Landlord and Tenant – Erroneous dismissal of plaintiff’s action for damageson the ground of unsuitability of the premises for the agreed purpose – Failureof the High Court Judge to consider the counter claim of the defendant.
This is an appeal by the defendant against the High Court Judge’s order in H.C. (Civil) No. 47/96(1) decided in SC (CHC) Appeal No. 25/99, where theSupreme Court reversed the High Court Judge’s judgment which had dis-missed the plaintiff’s appeal. In this appeal the defendant appealed againstthe same judgment particularly on the ground the High Court had failed toconsider the defendant’s counter claim for recovery of'expenses incurred byhim to effect improvements to the premises to enable its use as'a warehousefor storing rice brought in by lorries and to recover rents alleged to be duefrom the plaintiff.
Held:
The High Court judgment against the plaintiff was reversed when theSupreme Court upheld the plaintiff’s appeal. The court also directedthe. High Court Judge to assess the damages based on the plaintiff'sclaim as well as the defendant’s counter claim on the rent and to enterdecree accordingly.
The order made on the plaintiff’s appeal in S.C. (CHC) appeal No.25/99is affirmed.
APPEAL against the judgment of High Court
S.L. Gunasekara with Kushan de Alwis for defendant – appellant.
Romesh de Silva, P.C. with Geethaka Goonawardane for plaintiff-respondent.
Cur.adv.vult
20Sri Lanka Law Reports(2005) 1 Sri L. R.
November 14, 2003 .
SHIRANI BANDARANAYAKE, J.This is an appeal from the judgment of the High Court dated 12.05.1999.By the judgment while dismissing the plaintiff-respondent's (hereinafterreferred to as the plaintiff) action against the defendant-appellant (herein-after referred to as the defendant), the defendants claim in reconventionagainst the plaintiff was also dismissed. The defendant appealed againstthat order to this Court.
The plaintiff instituted action against the defendant, praying inter alia forthe recovery of a sum of Rs. 8,488,000 together with legal interest thereonfrom the plaint till date of decree and thereafter on the aggregate amountof the decree till payment in full. In his plaint the plaintiff had pleaded thathe had taken a warehouse from the defendant on rent which later he foundnot to be suitable for the purpose of storing rice. Due to the non-suitabilityof the said premises, the plaintiff claimed that he suffered loss and dam-age which was estimated at Rs. 7,000,000/-. He further claimed that thedefendant did not return the deposit of Rs. 1,488,000 though it was de-manded. •
The appeal of the plaintiff was decided and delivered today in a separateapplication S.C. (CHC) No. 25/99, which deals in detail, the issues per-taining to that appeal.
The contention of the defendant is that while the High Court had arrived atthe correct conclusion by dismissing the plaintiff’s action that the learnedJudge of'the High Court was in error when he dismissed the defendant’sapplication in reconvention, inter alia, for the following reasons:
—(a) learned Judge of the High Court erred in holding that the defendant‘ had notice from P2 onwards that trucks laden with rice and/or trucksladen with unlimited quantities of rice would be driven inside the saidwarehouse;
(b) learned Judge of the High Court in holding that the purported knowl-edge of the defendant that trucks laden with unlimited quantities ofrice would be driven intothe said warehouse precluded the defen-dant from claiming any damages for the losses caused to the defen-dant by reason of such trucks being driven into and or inside thesaid warehouse;
scSri Krishna Corporation Limited21
V. General Sales Company Limited (Bandaranayake, J.)
(c) there having been no dispute whatsoever between the parties that allsuch damage.as was caused to the defendant’s said warehousewas caused by lorries of the plaintiff with loads of rice being driveninside the said warehouse the learned Judge of the High Court erredin failing to give the defendant judgment as prayed for by the defen-dant in respect of its claim in reconvention in the prayer of its an-swer.
In appeal No. SC (CHC) 25/99, on a consideration of the material placedbefore Court, it was held that, at the time the plaintiff and defendant en-tered into the agreement (R2) the defendant was fully aware that the ware-house would be used for the purpose of storage of rice and in order forsuch storage, heavy vehicles would be driven into the warehouse. More-over, the defendant being the owner of the warehouse, should have knownwhether the construction of the said warehouse would stand the rigours ofstorage of rice and more importantly whether the floor of the warehouse isbuilt to withstand the loads of a lorry laden with rice. These factors arewithin the knowledge of the defendant and not of the plaintiff, he being atotal stranger to the premises. It is pertinent to note that a mere visualinspection would not be sufficient to determine the intrinsic deficiencies ofthe interior of a building. Therefore the plaintiff cannot be held responsiblefor the damage to the building which apparently had a deficient floor thatcould not sustain heavy loads.
In these circumstances for the reasons given in the judgment in SC(CHC) Appeal No. 25/99, this Court held with the plaintiff and those rea-sons apply to this appeal, which is based on identical facts and issues,as well. Accordingly this appeal is dismissed and the relevant part of theJudgment of the High Court which refers to the claim in reconvention of thedefendant against the plaintiff dated 12.05.1999 is affirmed.
There will be no costs.
DE SILVA, J. -1 agreeJAYASINGHE, J.-1 agree
Order in S.C: (CHC) Appeal No. 25/99 to assess damages on plaintiff'sclaim and defendant’s counterclaim on rent affirmed.