038-SLLR-SLLR-1999-V-3-SUMANASEKERE-v.-PEIRIS.pdf
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Sumanasekare v. Peiris
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SUMANASEKARE
v.PEIRIS
COURT OF APPEALWEERASEKERA. J. (P/CA),WIGNESWARAN, J.
A. NO. 470/84 (F).
C. COLOMBO NO. 5284/RE.MAY 16, 1997.
JULY 7, 1997.
Rent Act, No. 7 of 1972 – Law No. 10 of 1977 – S. 22 1 (bb) – S. 22 (1A)- S. 22 (7) – Single house owner – Reasonable requirement – Non productionof Title Deeds.
The plaintiff-appellant filed action under s. 22 (1) (bb) of the Rent Act, and averredthat he is not an owner of more than one residential house and pleadedthat the premises are reasonably required for him and his family for residence.The defendant-respondent in his answer claimed that, the plaintiff-appellant, cannotmaintain the action as he became the landlord only after 8. 1. 81. The DistrictCourt dismissed the plaintiffs action holding that ingredients under s. 22 (1) (bb)and s. 22 (7) have not been proved and that the plaintiff had become the landlordafter 8. 1. 81.
On Appeal t-
Held:
s. 22 (1) (bb) brought in a limited class of tenants who were in occupationbefore 1. 3. 1972, whereas s. 22 (1) (b) referred to tenants who cameinto occupation on or after 1. 3. 1972. Difference lay in the length of timethe tenant had been in occupation and not on whether his landlord haschanged.
The words "which have been let to the tenant" were descriptive of thepremises, the description is made in relation to the tenant and not in relationto the landlord – the attornment to the landlord has no relevance.
Thus, the date on which the tenant first came into occupation was whatwas relevant to s. 22 (1) (bb) and not the date of commencement of tenancybetween the current landlord and such tenant.
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The words 'let to the tenant prior to the date of commencement of theAct must, therefore, mean the first letting. On attornment landlord changedbut the occupation of the-original tenant continued.
The District Court erred in considering the date on which the plaintiffbecame the landlord by attornment as the relevant date for the purposeof applicability of s. 22 (1) (bb).
S. 22 (1A) is only concerned about the plaintiff owning more than oneresidential premises and not the absolute ownership of the premises insuit. There was no need to file his title deeds and prove title to the singlehouse he allegedly owned.
APPEAL from the judgment of the District Court, Colombo.
Cases referred to:
Sriyani Peiris v. Mohamad – [1986] 2 Sri LR. 384.
Ismath v. Selladurai – [1995] 1 Sri LR. 353.
Sulaiman v. Aboobucker – [1992] 1 Sri L.R. 314.
F. S. Hettiarachchi v. Siri Hettiarachchi – SC Appeal No. 58/94 SCM15. 12. 94.
P. A. O. Samarasekera. PC with R. Y. D. Jayasekera for plaintiff-appellant.
A. K. Premadasa, PC with C. E. de Silva for defendant-respondent.
Cur. adv. vutt.
February 13, 1998.
WIGNESWARAN, J.
The plaintiff-appellant filed this action under section 22 (1) (bb) of theRent Act as amended to recover possession of premises No. 85/2,Polhengoda Road, Colombo 05.
The following admissions were recorded:
Tenancy admitted.
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Admission regarding receipt of notice to quit.
Admission that the defendant became a tenant under thefather of the plaintiff and came into occupation prior to 1972.
The following issues were framed:
Plaintiff's Issues :
Is the standard rent of the premises in suit below Rs. 100per month?
Is the plaintiff not an owner of more than one residentialpremises?
Are the premises reasonably required by the plaintiff and hisfamily for residence?
Has notice of this action been given to the Commissionerof National Housing?
Are the premises in suit residential premises?
If above issues are answered in favour of the plaintiff is heentitled to the reliefs prayed for in the plaint?
Defendant's Issues :
Did the plaintiff beome the landlord of the defendant onlyafter 08. 01. 1981?
If so can the plaintiff have and maintain this action?
After trial the learned Additional District Judge. Colombo, delivered
judgment dated 26. 10. 1984, dismissing the action of the plaintiff
answering the issues as follows:
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Yes.
Not propertyproved.
Yes.
Yes.
Yes.
No. Since ingredients of sections 22 (1) (bb) & 22 (7) ofRent Act, No. 7 of 1972 not proved.
Yes.
Due totheaboveanswergiventoissueNo.7 theplaintiff
cannot maintain this action. Also due to non-proof regardingbar under section 22 (7) this case cannot be maintained.
It would be seen that except for issues 2 and 6 other issues ofthe plaintiff had been answered affirmatively. Therefore, the admis-sions and the findings of the learned Additional Disrict Judge maybe summarised as follows:
Tenancy admitted.
The standardrentof premises in suit is under Rs. 100 per
month.
The premisesarereasonablyrequiredbytheplaintiffand
his family for residential purposes.
Notice of this action has been given to the Commissionerof National Housing.
Notice to quit admitted by defendant.
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, (vi) The defendant came into occupation of the premises in suitas tenant prior to 01. 03. 1972 under plaintiff's father.
The basis on which the learned Additional District Judge dismissed
the action are:
The fact of the plaintiff being a single house owner notproved. (Issue 2).
Ingredients of section 22 (7) not proved. (Issue 6).
The plaintiff became the landlord only after 08. 01. 1981.(Issue 7).
Consequential issue 8.
The learned President's Counsel appearing for the plaintiff-appellant
has argued that :
Defence under section 22 (7) had not been taken up eitherin the answer or during trial.
In any event the ingredients of section 22 (7) are not mattersto be proved by the plaintiff as a part of his case.
Section 22 (1) (bb) of the Rent Act refers to the date ofletting to the tenant only and not when the plaintiff becamelandlord by attornment.
These matters would now be examined.
Sections 22 (1) (bb) and 22 (1A) of the Rent Act are as follows:
"22 (1) Notwithstanding anything in any other law, no actionor proceedigs for the ejectment of the tenant of any premises thestandard rent (determined under section 4) of which for a monthdoes not exceed one hundred rupees shall be instituted in orentertained by any Court, unless where – .
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(bb) such premises, being premises which have been let to thetenant prior to the date of commencement of this Act, are inthe opinion of the Court, reasonably required for occupationas a residence for the landlord or any member of the family of thelandlord …”
"22 (1A) Notwithstanding anything in subsection (1) the landlordof any premises referred to in paragraph {bb) of that subsectionshall not be entitled to institute any action or proceedings for theejectment of the tenant of such premises on the ground that suchpremises are required for occupation as a residence for himselfor any member of his family, if such landlord is the owner of morethan one residential premises and unless such landlord has causednotice of such action or proceedings to be served on the Com-missioner of National Housing."
Clearly, the section refers to the premises in suit being "let to thetenant" prior to the date of commencement of the Act. Letting hereis descriptive of the premises and in relation to the tenant. It doesnot refer to the date on which the plaintiff let premises out.
What was determined by another Bench of this Court in SriyaniPeiris v. Mohamed’> was that where there was attornment there wasa termination of the tenancy under the original landlord and that anew tenancy was created from the date of attornment under the newlandlord to whom the tenant attorns and pays rent.
_ This determination in that case was the outcome of an argumentby the counsel for the plaintiff-appellant in that case that the samecontract under the father continued under the son. The question ofcontinuance or termination of the contract after attornment, we believe,is irrelevant to the matter under consideration, viz. interpretation ofsection 22 (1) {bb). It is important to remember that section 22 (1){bb) was a later addition into section 22 of the Rent Act, No. 7 of1972 by section 2 of Law No. 10 of 1977. The said subsection soughtto give certain benefits to single house owners whose tenants hadcome into occupation of the premises in suit as far back as prior tothe date of commencement of the Rent Act. Section 22 (1) (b) which
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was the only section dealing with reasonable requirement under theRent Act. No. 7 of 1972 earlier, referred to the letting of a premisesto a tenant on or after the commencement of the Rent Act. The newsection on the other hand referred to tenants who occupied thepremises prior to the coming into effect of the Rent Act. Those tenantswho paid rents under Rs. 100 per month and came into occupationof their premises prior to 01. 03. 1972 were earlier (prior to LawNo. 10 of 1977) protected from being ejected on the ground ofreasonable requirement under the original Rent Act. The exceptionthat was introduced by Law No. 10 of 1977 was the enabling of theeviction of a tenant occupying the premises belonging to a singlehouse owner, such a tenant occupying the premises in suit from adate anterior to the commencement of the Rent Act. The ingredientswere: (1) standard rent under Rs. 100 per month. (2) letting to thetenant prior to 01. 03. 72. (3) reasonable requirement as residencefor the landlord or any member of the family of the landlord. (4) landlorda single house owner. (5) notice to Commissioner of National Housingand (6) 6 months' notice of termination of tenancy.
It is worthy of note that section 22 (1) (bb) did not refer toreasonable requirement for purposes of trade, business, etc., of thelandlord.
linger section 22 (1) (b) the notice period was one year. To helpsingle house owners the notice period was reduced to 6 months, [videproviso to section 22 (6)].
The difference between section 22 (1) (b) and 22 (1) (bb) wasessentially the date on which the tenant first came to occupy thepremises in suit. Section 22 (1) (b) referred to tenants who came intooccupation on or after 01. 03. 1972 only. Section 22 (1) (bb) broughtin a limited class of tenants who were in occupation before 01. 03.1972. Difference lay in the length of time the tenant had been inoccupation of the premises in suit and not on whether his landlordhad changed. This is further brought into focus by the law governingresidential premises the Standard Rent of which for a month exceededRs. 100 [ie section 22 (2)]. The grounds for ejectment in section 22
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were identical with the grounds for ejectment in section 22 (1)subject to a few vital differences which were (a) in the case of arrearsof rent, the rent must have been in arrears for one month after ithad become due and (b) in the case of reasonable requirement therewas no distinction made out between tenants who came into occu-pation prior to the date of commencement of the Act and those whocame in, on or after the date of commencement of the Act.
Looking for a clue from the scheme of the Rent Act we find thatunder section 22 (7) the "specified date" means the date on whichthe current tenant came into occupation of the premises or the earliertenant, upon whose death the tenant for the time being succeeded,came into occupation of the premises.
In Ismath v. Selladural(2) the Supreme Court held that the words"which have been let to the tenant" were descriptive of the premises.This description, it was held was made in relation to the tenant andnot in relation to the landlord. Therefore, it was pointed out by TheirLordships, that attornment of the tenant to the landlord had no relevance.Thus, the date on which the tenant in this case (who had not beenreplaced by another in terms of section 36 of the Act) first came intooccupation of the premises in suit was what was relevant to section22 (1) (bb) and not the date of commencement of tenancy betweenthe current landlord and such tenant. The words "let to the tenantprior to the date of commencement of this Act" must, therefore, meanthe first letting. In fact, on attornment the landlord changed but theoccupation of the original tenant continued. This is factually so.
The learned Additional District Judge was, therefore, in error inconsidering the date on which the plaintiff became the landlord byattornment as the relevant date for the purpose of the applicabilityof section 22 (1) (bb). Thus, issue No. 7 should have been answeredin favour of the plaintiff.
As to the question of whether the plaintiff was the owner of morethan one residential premises (issue 2) the evidence in chief at page39 of the brief runs as follows:
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Thus, the plaintiff had given evidence that he was the owner ofthe premises in suit and that he was not the owner of any other house.The defendant had not disputed the ownership of the plaintiff. In anyevent she had admitted tenancy under him. No evidence had beenled to show that the plaintiff owned any other residential premises.Thus, the plaintiffs evidence stood unchallenged.
It was the contention of Mr. Premadasa, President's Counselappearing for the defendant-respondant, that the deed by which theplaintiff-appellant became owner was not submitted to Court. Therewas no need for the plaintiff to produce such deed and prove histitle since his title was never disputed. In any event the productionof such deed was not going to prove whether the plaintiff owned anyother house or not, unless the deed on the face of it referred to anotherhouse. The only relevant matter to be considered under section22 (1A) was whether the landlord was the owner of more thanone residential premises.
The uncontradicted oral testimony that the plaintiff was the ownerof the residential premises in suit and that he owned no other resi-dential premises should have been accepted as sufficient by thelearned Additional District Judge. If it was the contention of thedefendant-respondent that the plaintiff-appellant did not own the premisesin suit, the cross-examination should have brought this matter intofocus and the plaintiff-appellant could then have produced his deed.Or else if it was the contention of the defendant-respondent that theplaintiff-appellant owned more than one house then the burden wascast on the defendant-respondent to prove such a fact in the lightof the plaintiff-appellant giving evidence that he owned no otherresidential premises. The plaintiff-appellant could not have proved thenegative.
In any event it must be remembered that section 22 (1A) is onlyconcerned about the plaintiff owning more than one residential premisesand not the absolute ownership of the premises in suit. There wasno need on his part to file title deeds and prove title to the single
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house he allegedly owned. Suppose the deed was filed it would nothave been open for a defendant, for example, to start questioningthe title of the plaintiff picking some titular irregularity in the deed.Therefore, it would be wrong to insist on the production of a deedin proof of title though if filed it would have been convenient to Court.
Mr. Premadasa's contention was that section 22 (1A) was theoutcome of enlightened social legislation and that it only applied toowner landlords and therefore an owner landlord should prove hisownership. One would prefer to say that section 22 (1A) of the RentAct debarred a landlord owning more than one residential premisesfrom filing action rather than say that the section expected a singlehouse landlord to prove his title to his sole residential premises tofile an action under it. It is not the character of the landlord's ownershipof the premises in suit that is relevant but whether he owned morethan one residential premises. Thus, the non-production of the deedin favour of the plaintiff-appellant could not have been held againstthe plaintiff-appellant by the learned Additional District Judge.
In Sulaiman v. Aboobacker<3) it was held that a landlord who wasa life-interest holder or a tenant having a subtenant with the consentof the landlord or a co-owner is entitled to maintain an action forejectment even though he may not own a house.
In F. J. Hettiarachchi v. Siri Hettiarachchf41 His Lordship ChiefJustice G. P. S. de Silva held that in cases where the nature ofoccupation was relevant the question of title was irrelevant.
Therefore, the learned Additional District Judge in the absence ofany proof that the plaintiff-appellant owned more than one residentialpremises should have answered issue No. 2 in favour of the plaintiff-appellant.
The other argument of Mr. Premadasa revolves around issueNo. 6 and the learned Additional District Judge holding that theingredients of section 22 (7) were not proved. As pointed out by
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Mr. Samarasekera, President's Counsel apearing for the plaintiff-appellant, no defence to the action had been taken at any stageof the trial based on section 22 (7).
The relevant portion of section 22 (7) of the Rent Act is as follows:
"Notwithstanding anything in the preceding provisions of thissection, no action or proceedings for the ejectment of the tenantof any premises referred to in subsection (1) or subsection (2) (i)shall be instituted – (a) . . .
where the landlord is the owner of not more than oneresidential premises, on the ground that (i) such premises arereasonably required for occupation as a residence for the landlordor for any member of the family of the landlord; or . . .
Whether the ownership of such premises was acquired by thelandlord, on a date subsequent to the specified date, by purchaseor by inheritance or gift other than inheritance or gift from a parentor spouse who had acquired ownership of such premises on a dateprior to the specified date."
The pith and substance of the finding by the learned AdditionalDistrict Judge was that the failure to tender the deed in favour ofthe plaintiff raised doubts as to whether the plaintiff acquired thepremises in suit by inheritance or gift from a parent who had acquiredownership of such premises on a date prior to the specified date."Specified date" has been defined in section 22 (7) as the date onwhich the tenant came into occupation of the premises in suit. Thequestions and answers earlier referred to, during examination in chief,cross-examination and re-examination of the plaintiff-appellant, verydefinitely brought out the fact that the plaintiff-appellant received thepremises in suit from his father who was the original landlord of thedefendant-respondent. If this fact was to be challenged the defendant-respondent should have set up a defence under section 22 (7) andraised an issue. At no stage was this matter raised by the defendant.
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If it was raised then the deed could have been produced as docu-mentary proof of the plaintiff receiving the premises in suit from hisfather. Having failed to do so it would be improper to argue that theplaintiff did not prove the ingredients of section 22 (7). Section 22(7) is not a provision to be proved by the plaintiff. It is a defenceto be taken up by a defendant. If the case falls under the bar setout in section 22 (7) the plaintiff would not be able to have and maintainan action. The defence in this case never referred to the plaintiff beingaffected by the bar set out in section 22 (7). Only the learned AdditionalDistrict Judge had thought it fit to refer to it. That too despite theevidence of the plaintiff that he obtained the premises in suit fromhis father on a date subsequent to the specified date. It was not allegedthat the plaintiff was a purchaser over the head of the tenant. Since,the plaintiff had said that he received the premises in suit from hisfather and that the father was still living there was no question ofinheritance from the father. The evidence before the Additional DistrictJudge was that the father who was the original landlord had donated(or gifted or written in favour of) the son the premises in suit. In thelight of this evidence and due to the failure of the defendant to raisean issue under section 22 (7) there was no reason as to why thelearned Additional District Judge should have entertained doubts withregard to the plaintiff's right to file this action. He may have beentaken up by the argument that the plaintiff-appellant claimed inher-itance from his father while admitting that his father was still alive.This predilection was brought about by the learned President's Counsel,who appeared for the defendant both in the original Court as wellas the Court of Appeal, making much out of the answer of the plaintiffat page 39 as follows: ‘tocoeS eOt® §es»' This answer should havebeen taken in context or further questions should have been posedby the learned Additional District Judge to clarify matters. In fact, thenext two questions by Court, and answer, given by the plaintiff tothose questions explained his first answer. He admitted that his fatherwas living and that the father gave the property to him by a deed.Therefore, there was no confusion with regard to the phrase ’Boxes)e&® §a» It simply meant that the property "came from my father".No questions were posed by the defence to contradict this position.
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Therefore, the learned Additional District Judge on the basis that therewas uncontradicted evidence that the plaintiff had received the premisesin suit from his parent after the specified date should have found himfalling within the exception to the bar under section 22 (7) andaccordingly answered the issues.
We. therefore, find that issues 2. 6, 8 and 9 have not been properlyanswered. They should have been answered as follows:
Yes.
Yes.
Yes.
Yes; since section 22 (1) (bb) only contemplates the dateon which the defendant first came into occupation as atenant.
Accordingly, we set aside the order dated 26. 10. 1984 deliveredby the Additional District Judge, Colombo and enter judgment forplaintiff as prayed for with costs in the original Court.
We allow the appeal but parties shall bear their own costs of appeal.
WEERASEKERA, J. – I agree.
Appeal allowed.