033-SLLR-SLLR-1992-V-1-SULAIMAN-v.-ABOOBAKKAR.pdf
SULAIMAN
v.ABOOBAKKAR
COURT OF APPEALWIJETUNGE, J. &
ANANDACOOMARASWAMY, J.
A. APPLICATION NO. 1159/90
C. COLOMBO NO. 6861/RE05 FEBRUARY 1991
Landlord and tenant – Rent and ejectment – Suit on ground of reasonablerequirement of premises – Rent Act, section 22(2)(bb).
Held:
To sue the tenant on the ground of reasonable requirement, the landlord shouldnot own a house or he should own no more than one house.
The expression landlord does not include his wife.
A landlord who is a life interest holder, or a tenant having a sub-tenant with theconsent of the landlord or a co-owner is entitled to maintain an action forejectment even though he may not own a house.
Although the relief claimed was stated to be under s. 22(2)(b) of the Rent Act, theaction was really under s. 22(2)(bb). The maxim falsa demonstratio non nocetapplies as the parties were not misled by what was only a clerical error.
Cases referred to:
Arnolda v, Miriam Lawrence C.A. Application No. 45/80 C.A. Minutes of11.04.80.
Miriam Lawrence v. Arnolda (1981) 1 Sri LR 232.
Mowlana v. Arunasalam (1988) The Colombo Appellate Law Reports Vol. 11-Pt. 11 page 159.
Perera v. Jansz(1949) 51 NLR 479.
APPLICATION in revision of the order of the District Court of Colombo.
S.Mahenthiran for defendant-petitioner.
A. A. M. Marleen with Farook Thahir and A. G. Ameen for plaintiff-respondent.
Curadv vult.
14th March, 1991.
ANANDACOOMARASWAMY, J.
This is an application by way of revision to revise the judgment ofthe Learned District Judge of Colombo dated 11.10.1990, enteringjudgment for Plaintiff-Respondent (hereinafter referred to as Plaintiff).
The facts relevant to this application are briefly as follows: –
The Plaintiff instituted the action to eject the Defendant-Petitioner(hereinafter referred to as Defendant) from the premises No. 58A,Stace Road, Colombo 14. Notice to quit dated 18.05.1986 requestingthe Defendant to quit and hand over vacant possession on or before
was issued.
At the trial it was admitted that there was a contract of tenancy forthe residential premises in suit governed by the Rent Act and the rentexceeded Rs. 100/- per month. The receipt of the notice to quit wasalso admitted.
The Plaintiff alleged that she was entitled to a decree for ejectmenton the grounds of reasonable requirement of the premises in suit forher own use and occupation. After trial, judgment was entered on11.10.1990 in favour of the Plaintiff. The Defendant had appealedfrom this judgment to this Court. Immediately after this, the Plaintifffiled an application for writ pending appeal and before the saidapplication was supported, the Defendant filed this application forrevision and obtained a stay order from this Court staying all furtherproceedings in the District Court.
From the aforesaid facts, we find no reason why the Defendanthad invoked the jurisdiction of this Court to set aside the judgmentdated 11.10.1990 when an appeal from this judgment had been filed.We see no exceptional circumstances nor do we find any suchcircumstances averred in the said petition filed in this application bythe Defendant. It appears that the Defendant feared the execution ofthe decree pending appeal, and perhaps this motivated him to filethis application, because there is no provision in law for the DistrictCourt to order the stay of execution of decree pending appeal inthose cases falling under Section 22(2)(bb) of the Rent Act.
On the merits of the application there are two matters in issue:-
In order to institute an action on the ground that the landlordrequires the premises for occupation as a residence forhimself or his family, whether he should be an owner of oneresidential premises.
Whether this action was instituted under Section 22(2)(b) orunder Section 22(2)(bb) of the Rent Act No. 7 of 1972 asamended, as it is not clear from the notice to quit, pleadingsand the evidence led in this case under which one of thecategories the action falls.
On the first question what is required is that the “landlord is theowner gf not more than one residential premises …”, which meansthat the landlord should own nb house or not more than oneresidential premises. It is not essential that the landlord should ownone house. The landlord who owns no house may fall into thecategory of a life interest holder or a tenant having a sub-tenant withthe consent of the landlord.
This view finds support in the decision in the case of Arnolds v.Miriam Lawrence <” where the Court of Appeal (Soza, J. withAtukorale, J. agreeing) expressed the view “It should be observedthat the language used in this SubsedBfe 1(a) is that the landlordshould not be the owner of more thanTne residential premises. Itmay well happen that the landlord is himself a tenant who has let thepremises to a sub-tenant, with the consent of his own landlord. Sucha landlord though not the owner of the premises can sue underSection 22(1 )(bb) if he owns no house or owns not more than oneresidential house. It must be remembered that the expression“landlord” necessarily does not mean owner of the premises. Theexpression is defined in the Rent Act as follows:-
“Landlord, in relation to any premises, means the person forthe time being entitled to receive the rent of such premises andincludes any tenant who lets the premises or any part thereof toany sub-tenant”.
“Hence all that is required is that the landlord should own no houseor own not more than one residential premises. It is not for us tospeculate on whether the actual intention of the Legislature was tomake provision for a person who had let the only house he owns toget it back when it is required for his own residence. The language ofthe section as it stands makes good sense and we should interpret itas we find it".
On appeal in the very same case Miriam Lawrence v. Arnolda(2)the Supreme Court (Ismail, J. with Samarawickrema, J. andWanasundera, J. agreeing) held inter alia “The landlord should be theowner of only a single house”. Ismail, J. said “It will be noted underSubsection (1A) there had to be two essential pre-requisites beforeinstitution of any action or proceedings for ejectment of a tenant.These are, firstly, that the said landlord will not be entitled to instituteany action or proceedings for ejectment of a tenant if he is the ownerof more than one residential premises and …”. He also said “Toinvoke the provisions of Law No. 10 of 1977, it is an essentialrequisite that the person should be possessed of only one residentialpremises; and
The Supreme Court did not decide whether a landlord could ownno house to maintain the action.
But in the case of Mowlana v. Arunasalam(3) reported in (1988)where the Court of Appeal (Viknarajah, J. with S. B. Goonewardene,
J. agreeing) held “That the word “landlord” in Section 22(1 )(bb) andSection 22(7) means landlord and (or his spouse) and that as thePlaintiff’s wife did not own more than one residential premises he wasentitled to maintain the action”. Viknarajah, J. in the course of thejudgment said “The word "landlord" in Section 22(1A) and in Section22(7) should be given an extended meaning to include spouse. Thatis the landlord and/or his spouse should not own more than oneresidential premises. This interpretation is in keeping with the objectof the Amending Act No. 10 of 1977 because the Amending Act wasbrought to give relief to family units to enable them to recover the onlyhouse they had. If a family unit had more than one residentialpremises then the landlord cannot maintain the action. When I usethe word family unit it means the landlord and/or spouse”. In that
case the Court of Appeal granted relief to the Plaintiff who was notthe owner of the premises in suit, but for different reasons. ThePlaintiff’s wife owned the premises in suit. As she did not own morethan one residential premises, the Plaintiff was entitled to maintain theaction. With respect we are unable to agree with this reason,although we are of opinion that the Plaintiff was entitled to maintainthe action as he owned no house. As pointed out by Soza, J. inArnolds v. Miriam Lawrence (supra) “It is not for us to speculate onwhether the actual intention of the Legislature was to make provisionfor a person who had let the only house he owns to get it back whenit is required for his own residence. The language of the Section as itstands makes good sense and we should interpret it as we find it”.We find no material to support the view expressed by Viknarajah, J.when he gave an extended meaning to the word “Landlord” inSections 22(1 )(bb), 22(7) and 22(1 A). On the contrary we find thatthe word “Landlord” is clearly distinguished from the words “Anymember of the family of the Landlord”.
Section 22(1 )(bb) reads as follows: –
”… reasonably required for occupation as a residence for
the landlord or any member of the family of the landlord;…"
Section 22(1 A) reads "… landlord of any premises referred toin paragraph (bb) of that subsection shall not be entitled toinstitute any action or proceedings for the ejectment of thetenant of such premises on the ground that such premises arerequired for occupation as a residence for himself or anymember of his family, if such landlord is the owner of more thanone residential premises and …”.
Section 22(7) reads ”… (a)… for occupation as a residencefor the landlord or any member of the family of the landlord…
(b) Where the landlord is the owner of not more than oneresidential premises, on the ground that—
(i) Such premises are.reasonably required for occupationas a residence for the landlord or for any member ofthe family of the landlord; or…".
In the present case the Plaintiff is admittedly the owner of halfshare of the premises in suit and also has a non-notarially attesteddocument whereby she became the absolute owner of the premisesin suit. Quite apart from the validity of the non-material document, sheis a co-owner of the premises in suit and therefore entitled to maintainthis action.
We are therefore of opinion that a landlord who is a life-interestholder, or a tenant as against a sub-tenant or a co-owner is entitled tomaintain an action for ejectment even though they may not own ahouse.
On the second question, the notice to quit did not refer under whatSection on the Rent Act the Plaintiff was asking for the house. Onlysix months notice was given. The Plaintiff referred to the fact that thePlaintiff was a single house owner but the relief was claimed underSection 22 (2) (b) of the Rent Act. The issues and the evidence wereon the basis of a single house owner. The Learned Counsel for thePetitioner (Defendant) submitted that one year’s notice should havebeen given if the action was under Section 22(2) (b) and therefore thenotice to quit was invalid, as only six months notice was given. Inreply The Learned Counsel for the Respondent (Plaintiff) submittedthat there was a clerical error in mentioning Section 22(2) (b) insteadof Section 22(2) (bb) of the Rent Act and that the Defendant-Petitioner was not misled by this error, as both parties treated thecase as falling under Section 22(2) (bb) of the Rent Act. He drew theattention of the Court to the written submissions filed on behalf of theDefendant, in the District Court. He also relied on the decision in thecase of Perera v. Jansz(4) where the Former Supreme Court(Nagalingam, J,) held that “In the circumstances, the maxim falsademonstrate non nocet applied and that the notice to quit was valid".In that case “A notice to quit given by a landlord to his tenant referredto the premises in question by an incorrect assessment number. Thetenant, however, could have had no misgiving as regards theparticular premises which he was asked to quit.
In the circumstances of the present case too we are of opinion thatthe Defendant-Petitioner was not misled by the aforesaid error.
For the foregoing reasons we dismiss the 'Defendant-Petitioner’sapplication with costs.
WIJETUNGA, J. – / agree.
Application dismissed.