WEERASOORIYA, J.—Steamy v. Gunawardena
1058Present; Weerasooriya, J.SWAMY, Appellant, and GUNAWARDENA, RespondentS. G. 163—G. B. Matale, 13,128
Sent Restriction Act, No. 29 of 1948—Section 13 (i) (c)—Premises required for use oflandlord—Point of time at which the needs of the landlord must be shown toexist—“ Seasonable requirement
The point of time at which the conditions set out in paragraph (c) of theproviso to section 13 of the Rent Restriction Act must be shown to exist is thetime when the Court is required to make the ejectment order and not rhe date-of institution of action. Accordingly, when a landlord seeks to eject his tenanton the ground that the premises let are reasonably required for his own occu-pation, the question whether the premises are so required should he decidedwith reference to the state of affairs existing at the time of the trial and notat the date of the institution of the aotion.
In deciding the question of the needs of the landlord, the Court may take intoconsideration the moral obligation incurred by him to vacate, in accordance with aprevious undertaking giveu by him, the house occupied by him as the tenant ofanother landlord.
^APPEAL from a judgment of the Court of Requests, Matale.
V. Perera, Q.C., with P. Somatilakam and D. B. P. GoonetiUeJee, fordefendant-appellant.
W. Jayewardene., Q. C., with S. B. Yatawara, for plaintiff-respondent.
Gur. ctdv. mdt.
July 31, 1958. Weebasoobiya, J.—
This appeal concerns a dispute between two medical practitionersresident in Matale over the possession of certain premises to which theRent Restriction Act, No. 29 of 1948, (hereinafter referred to as “ theAct ”) applies.
The defendant became the tenant of the premises inMay, 1956, and he isstill living there with his family. The plaintiff has for over twelve yearsbeen in occupation of a house to which the provisions of the Act do notapply and which belongs to one Mr. Gopali&wa, Municipal Commissioner,Colombo. Mr. GopaHawa lived in Colombo in a house provided by theColombo Municipal Council which he would have to relinquish on the■termination of his employment.
According to the plaintiff he was informed by Mr. Gopallawa in Sep-tember, 1956, of his impending retirement from the office of Municipal-Commissioner as from the 1st July, 1957, and that after his retirement heintended to return to Matale, where he had been living prior to his appoint-ment as Municipal Commissioner. The purpose of this intimation wasto obtain the pls.int^'ff ,q a^^^nt to v° c a. tins the house tenanted b-?*- bim
WEERASOOB.IYA, J.—Swamy v. Gunawarden a.
that Mr. Gopallawa could move into it after his retirement became effective-The plaintiff stated that in these circmnstances he gave Mr. Gopallawa.a definite undertaking to vacate the house “ somewhere ” in September,1957. Apparently this, undertaking satisfied Mr.. Gopallawa and he-did not think it necessary in the circumstances to determine the con-tractual tenancy by a formal notice. When the trial took place on the-27th August, 1957, Mir. Gopallawa had still not retired from office, but the-plaintiff stated that the retirement was due within a month, or two.
In view of the undertaking given by the plaintiff he looked out for-another house. Eventually, on the 30th March, 1957, he purchased the-house of which the defendant is the tenant. The change of ownershipwas communicated to the defendant by letter P2 of the 5th April, 1957.In that letter the defendant was also informed that the plaintiff requiredthe house for his occupation and the defendant was requested to findalternative accommodation as soon as possible. This letter was followedup by P3 of the 24th April, 1957, giving the defendant notice to quit-on or before the 31st May, 1957. The defendant replied by P4 of the=28th April, 1957, attorning to the plaintiff but stating that it would not.be possible for him to quit the premises by the 31st May, 1957, on accountof the unavailability of suitable alternative accommodation.
The present action was filed on the 5th of June, 1957, and after trialthe District Judge entered judgment in ejectment of the defendant and for-payment by him of damages at Its. 55 per mensem from the 1st June,1957, and costs. Erom this judgment the defendant has appealed.
In giving judgment for the plaintiff the learned District Judge heldthat the “ need of the plaintiff if not greater is of the same degree as thatof the defendant and the need of the landlord should prevail over theneed of the tenant ”. No exception was taken by Mr. H. V. Perera,who appeared for the appellant, to this method of deciding in favour ofthe landlord in a case where the hardship that would be caused to either-side is about the same. It is a method which would appear to have thesanction of previous decisions of this Court—see Ismail v. Eerft1 and thecases cited there.
Under paragraph (c) of the proviso to section 13 (1) of the Act, judgmentin ejectment of the tenant can be given if “the premises are, in the opinionof the Court, reasonably required for occupation by the landlordBut Mr. H. V. Perera contended that the question whether thepremises are so required should be decided with reference to the state ofaffairs existing at the time of the insiatution of the action. He relied onthe general rule that the rights of the parties should he ascertained as.at the date of the institution of the action; as well as on the evidence ofthe plaintiff himself that his undertaking to Mr. Gopallawa was to leavein September, 1957, and that while that undertaking had been given onthe representation made by Mr. Gopallawa in September, 1956, that hewould be retiring with effect from the 1st July, 1957, even on the 27thAugust, 1957, (when the trial took place) Mr. Gopallawa had stili notretired from office. Mr. Perera submitted that on this evidence no
1 (1948) 50 N. L. B. 112 at lid.
WEERASOORXYA, J.—Swamy v. Ounawardena
present and immediate need for the premises on the part of the plaintiffas at the date of the institution of the action (on the 5th June, 1957)has been established and the Court could not, therefore, have formedthe opinion that the premises were reasonably required for occupationby the plaintiff.
It seems to me, however, that the question is essentially one of theproper construction of the relevant provisions of the Act. The languageof paragraph (c) of the proviso to section 13 is almost identical with thatof paragraph (e) of the proviso to section 8 of the Rent Restriction Ordi-nance, No. 60 of 1942, which section corresponds to section 13 of the Act.In Ismail v. H&rft (supra), the view was expressed by Windham, J., thatthe time at which the conditions set out in paragraph (e) of the provisoto section 8 of the 1942 enactment must be shown to exist is the time whenthe Court is required to make the ejectment order. I would respectfullyadopt the same view for the purposes of the present case. The viewseems to be in accordance with the English decisions too. Under the• English Rent and Mortgage Interest Restrictions (Amendment) Act,1933, power is given to the Court in paragraph (h) of the First Schedule toenter judgment for the recovery of possession of a dwelling-house if it isreasonably required for occupation as a residence by, inter alia, the land-lord. In King v. Taylor which is a decision of the Court of Appeal inEngland, Sir Raymond Evershed, M. R., expressed the opinion that aCourt which is asked to make on order for possession under paragraph (h)of the First Schedule to the 1933 Act should take into consideration allthe circumstances which are then before it at the hearing; that accordingly,on appeal from the refusal of a County Court to make an order for posses-sion, the Court of Appeal can take into consideration a change of cir-cumstances which occurred while the appeal was pending ; but in theconverse case, where the County Court has made an order for possession,the Court of Appeal should consider the circumstances as they existedat the time of the hearing before the County Court and ignore anysubsequent change of circumstances.
The position when the trial Court was called upon to make the eject-ment order was that the plaintiff had, on the representation made byMr. Gopallawa in September, 1956, undertaken to vacate the houseoccupied by .him in September, 1957. Even if this undertaking did nothave the effect of legally terminating the contractual tenancy between theplaintiff and Mr, Gopallawa (and the point was not raised at the trial or inappeal) I do not see why, in deciding whether the premises in suit werethen reasonably required for the plaintiff’s occupation, account shouldnot be taken of the moral obligation incurred by the plaintiff to give uppossession of Mr. Gopallawa’s house at the latest by the 30th September,1957. The plaintiff does not appear to have regarded himself as releasedfrom that obligation merely because at the time of the trial the retirement-of Mr. Gopallawa had not taken place but was deferredfor a month or two. I
I have not yet referred to certain events which took place after thejudgment appealed from had been delivered. The plaintiff, despite theundertaking given by bim to Mr. Gopallawa, failed to leave in September,
1 (1954) 3 A. B. 3. 373.
Abdul Gaffoor v. Joan Cuttilan
1957, and on the 7th November, 1957, Mr. Gopallawa filed an actionfor his ejectment. On the 28th Mareh, 1958, decree was entered ofconsent that the plaintiffi.be ^jected-from ihe^premises^-bnt. subject tothe condition that writ of ejectment was not to issue till the 30th Sep-tember, 1958. If it was in evidence at the trial that the plaintiff hadtime till the 30th September, 1958, to vacate Mr. Gopallawa’s house thedecision of the District Judge may well have been different. But it doesnot appear to me, having regard to what I have already stated on thepoint, that the subsequent change of circumstances has any bearing on thequestion whether this Court should interfere with the discretion exercisedby the District Judge on a consideration of the circumstances existingat the time of the trial.
I would therefore dismiss the appeal with costs. I direct, however,that writ of ejectment of the defendant shall not issue till after the 15thSeptember, 1958.