Sri Lanka Law Reports
(1978-79) 2 S. L. R.
Weerasinghe v. De Silva
COURT OF APPEAL" :.
COLIN. THOME, J. AND RANASINGHE, J.
C.A. (S.C.j '588/74—C.R. COLOMBO 3584/edOct OBI* 23, 24, .25, . 1978
Ren. Apt NO-' 7 of 1972, section 2.8—Non-occupation .0/ premises by atenant—Should period of non-ozcupatVn be computed only fromcoming into operation of Act—Such, section not retrospective—Natureof occupation required by section—Residential premises us-d bytenant as-business premises—Knowledge and/or consent of landlord—rProhibition against such usage contained in provisions of Rent A ns—Does such usage have the effect of altering character of premises totake them out of operation of section 28.
Tjhat section 28 of Rent Act No. .7 of 1972 in prospective in operationand accordingly non-occupation by a tenant of residential premisesprior to 1st March-; 1972, did not constitute a ground of ejectment.
Weerasinghe v. de Silva
The occupation required by the provisions of section 28 is the occupa–tion of ihe premises as a residence and occupation other than as anactual residence will not give protection from the operation of theprovisions of section 28(1).
Section 10 of the Rent Restriction Act (Cap. 274) as amended byAct No. 10 of 1961 provided that the tenant of any residential premisesto which the Act applied should not use such premises for any pur-pose other than hat of residence except with the prior written con-sent of the landlord and, where the premises are situate within theadministrative limits of any local authority, the prior written con-sent of the Mayor or Chairman of such local authority. Section 12of Rent Act No. 7 of 1972 provides that a landlord or tenant of anyresides 'rial 'premises should not, unless so authorised by the Commis-sioner of National Housing, use such premises wholly or mainly forany purpose other than that of residence. In this section “residentialpremises ” was defined to mean any premises which at any time withina period cf ten years prior to the date of commencement of Lhis Acthad been occupied wholly or mainly for the purpose of residence. Inthis case at the time of the original contract of tenancy the premiseswere residential premises but during the period of ten years prior tothe dax of commencement of Rent Act No. 7 of 1972 they had beenused fo” business purposes and were so used with the knowledge and/or consent of the landlord. However, such user commenced and conti-nued at a time when the provisions of section 10 of the earlier RentAct as amended by Act No. 10 of 1961 were in operation, the trialjudge too.* .he view that as such user as business premises was unlaw-ful and constituted an offence punishable under the provisions of theearlier Rent Restriction Act, the premises in question should for thepurpose of this case be treated as residential premises as a personcannot in law, be permitted to take advantage of his own wrongful act.
That this finding of the trial judge was correct and the premises inquestion must accordingly for the purpose of this case be treated asresidential premises and not as business premises.
Cases referred to
Mvttucumaru v. Corea, (1958) 59 N.L.R. 525.
Wiieiungj v. Senanayake, (1967) 69 N.L.R. 445.
Sabapathy v. Kularatne, (1951) 52 N.L.R. 425.
Suriya v. Trustees of Maradana Mosque, (1954)55 N.L.R. 309.
Mnhamed v. Radhiboy, (1957) 60 N.L.R. 186
Amircsekera v. Gunapala, (1970) 73 NL.R. 469.
V/iferatne v.Dschou, (1974)77 N L.R. 157.
Ludovici v. Nicholas Appu, (1900) 4 N.L.R. 12.
APPEAL from the Court of Requests, Colombo, ..
C R.anganathan, Q.C. with N. S. A, Goone.illeke and N. Mahendra', torthe defendant-appellant.
H. W Jayewa~dene. Q.C. with D. R. P. Goonetillake and Laxman Perera,for the plaintiff-respondent.
Cur. adv. vult
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December 4, 1 978.
The plaintiff-respondent instituted this action to have thedefendant-appellant ejected from premises bearing No. 62,Dematagoda Road, Colombo, described in the schedule to theplaint, on the ground that the premises, which are residentialpremises were let out by him to the defendant-appellant: thatthe defendant-appellant has ceased to occupy the said premiseswithout reasonable cause for a continuous period of not less than6 months: that, therefore, in terms of the provisions of section28 (1) of the Rent Act, No. 7 of 1972, he is entitled to have thedefendant-appellant ejected from the said premises.
The defendant-appellant has in his answer taken up theposition that the defendant-appellant became the tenant of theplaintiff-respondent in respect of the said premises xn or about1954: that from about 1st of February, 1962, the premises havebeen used by him wholly or mainly as business premises with theknowledge and/or consent of the plaintiff-respondent: that hestill continues to be is occupation of the premises : that, therefore,the plaintiff-respondent is not entitled to have and maintain thisaction.
After trial, the learned trial Judge has held: that thepremises in question have been used from February, 1962, for thepurpose of conducting a Montessori School with the knowledgeand/or consent of the plaintiff-respondent: that the premises havenot, within a period of 10 years prior to the commencing of ActNo. 7 of 1972, been occupied wholly or mainly for the purpose ofresidence: that the change in character of the premises in ques-tion, from residential to business, was in violation of the provi-sions of the Rent Laws in existence at that time : that, therefore,the premises should still be considered as residential premiseswithin the meaning of Rent Act, No. 7 of 1972 for the purposeof this case : that, the defendant-appellant has, however, ceasedto occupy the premises in suit for residential purposes fromFebruary, 1962 : that the. defendant-appellant has failed to showthat such non-occupation of the premises in question was forreasonable cause within the meaning of the said Rent Act: that,therefore the plaintiff-respondent is entitled to have the defen-dant-appellant ejected from tire premises in question.
Weerasinghe v. de Silva (Ranasinghe, J.)
Learned counsel appearing for the defendant-appellant main-tained : that on the learned trial Judge’s finding the defendant-appellant has continuously been in occupation of the premisesfor the purpose of the business of running the Montessori School,which was being conducted by his daughter, that as thedefendant-appellant was throughout the relevant period in factin occupation, the allegations that the defendant-appellant hadceased to occupy the said premises must fail: that, in viewof the learned trial Judge’s finding that from 1. 2. 62 the premiseshad in fact been used for business purposes the premises arenot residential premises within the meaning of the said RentAct: that, as the non-occupation, if any, had in fact been withthe knowledge and/or consent of the plaintiff-respondent suchnon-occupation has not been without reasonable cause: that,in any event, the plaintiff has failed to prove that the defendanthas ceased to occupy the said premises for a continuous periodof six months since 1.3.72 the date on which the provisions ofthe Rent Act No. 7 of 1972 came into operation: that therefore,the provisions of neither section 12(1) (2) nor section 28 (1) ofthe Rent Act No. 7 of ‘72 could be called in aid by the plaintiff-respondent.
“ Residential premises ” have been defined in section 48 of theRent Act No. 7 of 1972, to mean, unless the context otherwiserequires, “ any premises for the time being occupied wholly ormainly for the purposes of residence ” ; and “ business premises ”have been defined to mean any premises other than residentialpremises as defined in the said section 48.
Section 12 of Act No. 7 of 1972 provides for the use of resident-ial premises for other purpose in certain circumstances. There isa definition of the term “ residential premises ” in section 12 (2) as“any premises which at any time within a period of 10 yearsprior to the date of commencement of this Act had been occu-pied wholly or mainly for the purpose of residence. ” Thisdefinition, however, is specifically restricted for the purposes ofsection 12 (2).■
The provisions of the Rent law which were in operation in1954 was the Rent Restriction Act No. 29 of 1948 (Chapter 274)as amended by Act No. 10 of 1961, which came into operation on6th March, 1961. Section 10 of Act No. 29 of 1948 provided thatthe tenant of any residential premises shall not use them for anypurpose other than that of residence except with the priorconsent of the landlord. Section 4 of Act No. 10 of 1961 repealedsection 10 of the principal Act and substituted a new section inits place whereby the use of residential premises for any purpose
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other than that of residence was permitted only with the priorwritten consent of the landlord and, where such premises arewithin the limits of a local authority, with the prior writtenconsent of the Mayor or Chairman of such local authority. Thus,in February 1S82, any change in the character of the said premises,from residential to business required not only the prior writtenconsent of the plaintiff but also the prior written consent of theMayor of the Colombo Municipality.
The corresponding provisions in the Rent Act No. 7 of 72 withregard to the use of residential premises for other purposesare found in section 12. Under the provisions of this section boththe tenant and the land-lord are prohibited from using or permit-ting the use of residential premises for any other purpose. Section42 of this Act No. 7 of 1972 penalizes the contravention of or thefailure to comply with the provisions of, inter alia,, section 12(1)and (2) of the said Act.
Learned counsel for the appellant contended that the term“ for the time being ” appearing in the definition of residentialpremises should be construed to mean the time at which theaction is instituted. In this connection the judgment of Sinr.a-thamby, J., in the case of Muttncwma.ru v. Dr. Corea (1) and thejudgment of Samerawickreme, J., in the case of Wijetunga v.Senanayake (2) had been cited to the learned trial judge and werealso relied on at the argument before us. On a consider-ation of these two judgments it appears to me, withrespect that the construction placed by Samerawickreme, J.is the more acceptable approach to this problem. The relevanttime should be the time at which the question comes up forconsideration. Such time is clearly the time of the institution ofthe proceedings. As the character of the premises is not inflexibleand its character at the time of the institution of the proceedingscould be different from its original character and any suchchange could have been effected either according to law orotherwise it is relevant and necessary to have reference to itscharacter at the inception of the contract of tenancy.
The learned trial Judge has as stated earlier, found that,although the premises in question, both at the date the RentAct of No. 7 of 72 came into operation and also on the date of theinstitution of these proceedings, were being used for businesspurposes, they were at the time of the original contract of tenancyresidential premises, and that it was only in February 1962 thatthe premises had ceased to be used for residential purposes, andthat such change, though effected by the tenant with the know-ledge and/or consent of the landlord, was unlawful and consti-tuted an offence punishable under the provisions of the Rent
Weeraslnghe v. de Silva (Ranasinghe, J.)
laws which were in force in 1962 and thereafter. That a personcannot in law be permitted to take advantage of his own wrongfulact is quite clear—vide (2)—at page 447,1 am, therefore, of opinionthat the learned trial Judge’s findings that the premises in ques-tion must for the purposes of this case be treated as “ residentialpremises ” is correct and should be upheld.
It was urged on behalf of the defendant-appellant that thelearned trial Judge has misdirected himself in holding that thedefendant-appellant had not been in occupation of the premisesduring the relevant time, in view of his earlier finding thal thedefendant-appellant and his daughter had in fact been carryingon the business of a Montessori School on the premises. It was,therefore, contended that, the defendant-appellant had, through-out the period, been in fact in occupation of these premises eventhough it had been for the purposes of his business.
Learned counsel for the respondent has urged that theoccupation contemplated by the provisions of section 28 (1) of theAct No. 7 of ’72 is occupation of the premises as a residence, andthat, even if the defendant has in fact been in occupation of thepremises for the purposes of his business, such occupation is notprotected by the provisions of section 28(1).
The provisions of section 28 (1) admittedly apply only toresidential premises. They have no application to business pre-mises. It has 1:c be noted that, unlike in England, our Rent lawsapply to both residential and business premises. The intent andobject of the provisions of section 28 (1) seem to be similar tothe policy of the Rent laws in England, with regard to “non-occupying tenants ” which is to “ economise rather than steri-lise housing accommodation” and, to see that premises, whichare not meant to be used for other purposes are thereby “ with-drawn from circulation.”
I am inclined to the view that the occupation required by theprovisions of section 28 is occupation of the premises as aresidence. The occupation of such premises otherwise than as anactual residence will not, in my opinion, give protection from theoperation of the provisions of section 28 (1).
Learned counsel for the respondent also referred us to thejudgments which deal with the position of “non-occupyingtenants”. The concept of a “non-occupying tenant” forfeit-ing the protection of the rent laws was first discussedm this island, by Gratiaen J. in the case of Sabapathy Kvlaratne (3) wherein it was laid down that a tenant.
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who -was not actually in residence in the premises and didnot require the premises, either for his own use or for the useof any member of his family who was dependent on him andmerely wanted it to permit his brother to carry on a business,was a “ non-occupying tenant ”, and should be regarded ashaving forfeited the special statutory protection offered by theRent Restriction Ordinance. Thereafter Gratiaen J. had occasionto consider the position of a “ non-occupying tenant ” once againin the case of Suriya v. Board, of Trustees of MaradanaMosque (4). Gratiaen, J. held that the theory of forfeiture of therights by non-occupation is not applicable in a case where thetenant lawfully subltt the premises without violating eitherthe terms of his contract of tenancy or the provisions of anystatute, and, in the course of the judgment, also observed that thedecision in (3) has no application to the facts ofthis case and that he intended to apply the theory of forfeitureby non-occupation only for the determination of the question ofrelative hardships of the landlord and the tenant with regardto the reasonableness of the requirements put forward by thelandlord to evict the tenant.
The theory of forfeiture by non-occupation came up for con-sideration once again in the case of Mohomed v. Kadhihhoy (5)and Basnayake, C.J. held that this English Law concept of a“ non-occupying tenant ” is not applicable to our Rent RestrictionLaws.
Thereafter this matter came up for discussion by Alles, J. inthe case of Amerasekera v. Gunapala (6) and it was held that,even though the allegation that the defendant was a non-occupying tenant had not been specifically raised as an issue,it was open to the Court to consider whether the defendentwas entitled to seek the protection of the Rent Act and thatit was not open to the defendant to urge that he was in occupa-tion through his employees when it was clear that he was not inphysical occupation. Alles, J., proceeded to grant relief to the land-lord on the basis that as the defendant was a non-occupyingtenant, the defendant was not entitled to claim the protection ofthe Rent Act.
In the case of Wijeratne v. Dschou (7) Sharvananda, J. havingconsidered the three earlier judgments, held that a tenant wasnot liable to be ejected on the ground of non-occupation. It hasto be noted that that too is a case, which had been institutedprior to the coming into operation of the provisions ofAct No. 7 of 1972. In the course of the judgement deliveredon 28.2.1974, Sharvananda, J. observed, at page 161, tha*
Weerasinghe v. de Silva (Ranasinghe, J.)
as the law stood prior to the coming into operation of Act No. 7of 1973, a tenant could have snapped his fingers at the landlordby his unsocial act of keeping the premises closed and sterilisinghousing accomodation as long as he was not guilty of any of theacts or omissions set out in the provisions of the Act, but, thatthat casus omissus has been provided for by section 28 of ActNo. 7 of 1972.
On a consideration of the relevant provisions of the rent lawsin force prior to Act No. 7 of 1972, and also the judgments referredto above, it appears to me that the English law theory of a non-occupying tenant ” forfeiting the protection of the rent lawsand being liable on that ground to be ejected had no applicationto the rent laws prevailing in this Island prior to 1.3.72. In viewof the provisions of section 28 (1) of Rent Act No. 7 of 1972, it maynow be open, in construing the provisions of the said section 28,to take hito consideration the judgments delivered in Englandwith regard to a “non-occupying tenant”. It is however, notnecessary for the purposes of this judgment to express my definiteopinion on this matter.
It was contended on behalf of the appellant that, in any event,any period of non-occupation prior to 1.3.72 cannot be takeninto consideration. As already indicated, prior to 1.3.72 non-occupation by a tenant of residential premises did not constitutea ground of ejectment. Hence, if any such period is taken intoreckoning, it would be tantamount to the tenant being now madesubject to a disability which he was not, in law, subject to at thattime. The provisions of section 28 (1) should be taken to beprospective in operation unless they have expressly bten maderetrospective in operation. There is, however, nothing in thelanguage of section 28 (1) which requires any such constructionbeing placed upon it. Section 47 of the Rent Act however hasclearly and unambiguously been made retrospective in its opera-tion. It is, therefore, clear that, when any provision of the RentAct No. 7 of 1972 was intended to be retrospective in application,the legislature has expressly so ordained. I am, therefore, ofopinion that any period of non-occupation by the defendant-appellant prior to 1.3.72 cannot be taken into consideration inreckoning the minimum period of 6 months required by the pro-visions of section 28 (.1). This action has been instituted by theplaintiff-respondent on 13.7.72. The learned trial Judge has, inmy opinion, misdirected himself on this point. Thus, as there hadbeen, at the time of the institution of this action by the plaintiff-respondent, no non-occupation by the defendant-appellant fora continuous period of 6 months after the provisions of section 28
became operative, the plaintiff-respondent is not entitled to
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call in aid the provisions of section 28 (1) to eject, in theseproceedings, the defendant-appellant from the premises in ques-tion.
Section 28 (1) does not apply to all cases of non-occupation. Itis only a cessation of occupation for the requisite period withoutreasonable cause that would operate against the defendant-appellant. Thus where there has been reasonable cause, as con-templated by this sub-section, the tenant is not liable to beejected. The term “ reasonable cause ” has been defined insection 48 of Act No. 7 of 1972 to include a cause approved orsanctioned by by the Board. The word “include” in a definitionclause means ; “ has the meaning given to the word in the Ordi-nance in addition to its popular meaning ” ’—vide (8). Thelearned trial Judge appears to have proceeded on the basisthat the definition of these words set out in section 48 is exhaus-tive. Be that as it may, it appears to me that the ground urgedon behalf of the defendant-appellant, viz., the knowledge and/or consent of the landlord, as constituting the “ reasonablecause” for any such non-occupation is, in the circumstancesof this case untenable. This however will be of no avail to tueplaintiff-respondent in view of the opinion expressed by me withregard to the period of 6 months set out in section 28(1) referredto above.
In this view of the matter, I am of opinion that the defendant-appellant’s appeal is entitled to succeed. The judgment and thedeeiee appealed from are accordingly set aside and the nlaintiff-respondent’s action is dismissed with costs, in both courts.
COLIN THOME, J.—I agree.