COURT OF APPEAL
WIJEYARATNE, J„ AND EDUSSURIYA, J„
A. LA NO. 401/86(F):
C. COLOMBO 5113/RE20 AND 22 JANUARY 1992.
Landlord and tenant – Notice – Rent Act, sections 22(1) (bb), 22(b), 22(c) and 36.
Where certain premises were rented by the father of the defendant in 1968 andafter his death in February 1980, the defendant became tenant by operation oflaw under section 36 of the Rent Act and where the plaintiff after giving sixmonths' notice brought an action for ejectment on the ground of reasonablerequirement under section 22(1) (bb) and it was contended on behalf of the
defendant that the action should have been filed under section 22(b) with oneyear’s notice given under section 22(6) –
That since the defendant became a statutory tenant by operation of law and therewas no fresh contract of tenancy between the parties, it could not be said that thepremises had been let after the commencement of the Rent Act (i.e. 1.3.72). Theaction has been properly brought under section 22(1) (bb) after giving sixmonths’ notice.
APPEAL from judgment of the District Court of Colombo.
Cases referred to:
Sriyani Peiris v. Mohamed (1986) 2 Sri LR 385.
Miriam [Lawrence v. Arnolda (1984) Vol. 1 Piv: BA Law Journal P. 136.IkrarrtMohamed. with Lai Matarage for defendant-appellant.
T. B. Diliminu with Miss R. Malalasekera for plaintiff- respondent.
Cur adv vult.
2nd April, 1992.
. The plaintiff filed this action on 27.1.82 under section 22(i) (bb) ofthe Rent Act for the recovery of possession of premises No. 9Kirimandala Mawatha, Nawala, on the ground that it was reasonablyrequired for his own occupation and that of his family.
It was averred in the plaint that the standard rent of the premiseswas below Rs. 100 and they were the only residential premisesowned by him. It was also averred that notice dated 27.7.80 to quiton dr before 31.12.80 had been sent to the defendant and also thatthe notice of this action had been given to the Commissioner ofNational Housing as required by section 22(1 A) of the Act.
There was a claim of arrears of rent in a sum of Rs. 1235 uptoDecember 1981 and damages at Rs. 95 per month till possessionwas restored.
The defendant filed answer denying'the right to eject him. Theanswer stated that G. B. Weerasuriya, the father of the defendant-appellant, was the original tenant, that he had paid the rent regularlyat Rs. 121/- per month, that he died on 22.2.80, and that thedefendant-appellant who was his son and who was residing on thesaid premises, became its tenant from 1.3.80. It was also stated inthe answer that the authorised rent was Rs. 82/45 and that Rs. 627/-had been charged as excess rent and this amount along with a sumof Rs. 4000/- spent for urgent repairs had been claimed inreconvention.
At the trial certain admissions were recorded and the followingissues were raised by the parties
Is the plaintiff the owner of any house other than the premises
in suit ?'‘••
Are the premises in suit reasonably required for plaintiff .foroccupation as residence ?
By notice to quit dated 26.6.80 has the plaintiff given 6 months’notice of termination of the tenancy of the defendant ?
Has the notice, of this action been given to the Commissionerof National Housing ?
If issues 1 to 4 are answered in favour of the plaintiff, is theplaintiff entitled to a decree of ejectment of the defendantunder the provisions of section 22(1) (bb) of the Rent Act ?
What sum is due to plaintiff by way of arrears of rent anddamages ?
Can the plaintiff have and maintain this action on the allegednotice to quit in view of the facts averred in paragraph 6 of theplaint ?
After trial the learned Additional District Judge by his judgmentdated 24.9.86 entered judgment for the plaintiff as prayed for, fromwhich judgment and decree this appeal has been filed.
The evidence reveals that the defendant-appellant’s father G. B.Weerasuriya had taken the premises on rent in 1968 from HemalathaManamperi. She died in May 1971 and her son M. Manamperisucceeded as landlord. After the judgment in this case was given inthe District Court, the plaintiff-respondent M. Manamperi died and hiswidow Swarna Manamperi has been substituted.
G. B. Weerasuriya died in February 1980 and his son thedefendant-appellant succeeded to the tenancy by law under section36 of the Rent Act.
The defendant-appellant also died pending the appeal and hiswidow Lalitha Padmihi Weerasuriya has been Substituted in hisplace.
At thejfe&ring, Mr. Ikram Mohamed for the defendant-appellantsubmitted that the defendant-appellant became the tenant under theplaintiff only from 1.3.1980 after the defendant-appellant’s father haddied in February 1980. Therefore Mr. Ikram Mohamed submitted thatthe premises had been let to the defendant-appellant in March 1980,which is after the date of commencement of the Rent Act, namely1.3.1972, and hence the plaintiff-respondent could not maintain thisaction.
In section 22(i) (bb) it is laid down that possession could berecovered of such premises “let to the tenant prior to the date ofcommencement of this Act (which) are, in the opinion of the court,reasonably required for occupation as a residence for the landlord orany member of the family of the landlord."
Therefore he submitted that the letting to the defendant-appellanttook place in March 1980, which was after the date of operation ofthe Act and hence the plaintiff-respondent cannot avail himself ofsection 22(i) (bb).
He relied on the judgment of this Court in the case of Sriyani Peirisv. Mohamed(,) where it was held that section 22(i) (bb) necessarilyrefers to the “current” landlord who instituted the action for ejectmentand since the tenancy of the “current" landlord commenced after theoperative date of the Rent Act (namely, after 1.3.1972), section 22(6)of the Rent Act applies and one year’s notice is required to terminatea tenancy and a notice of six months was insufficient.
On the other hand Mr. T. B. Dilimuni for the plaintiff-respondentsubmitted that the defendant-appellant has merely continued thetenancy of his father by operation of law under section 36 of the RentAct and there is no fresh contract of tenancy entered into betweenthe defendant-appellant and the plaintiff-respondent. Hedistinguished the case of Sriyani Peiris v. Mohamed (supra) from thefacts of this case as there was no statutory provision in the Rent Actfor the succession of one landlord on the death of the previouslandlord (unlike in the case of a death of a/tenant where specificprovision is provided for the continuance of the tenancy). He stronglyrelied on the fact that there was no fresh contract of tenancy betweenthe plaintiff-respondent and the defendant-appellant.,
Mr. Dilimuni relied on the judgment of-the Supreme Court ifi tfiecase of Miriam Lawrence v. Arnolda(2).
In this case Ismail J. stated as follows
“. . . it was the duty of the Trial Judge to have determinedwhether the premises had been let prior to 1.3.72 or subsequent tothat date. If the premises had been let after that date clearly theprovisions of the Act would not apply.•
It is also in evidence that the defendant’s father was the originaltenant of this premises since 1914 and the defendant had becomethe tenant of the premises only after the father's death in August1972. Therefore, it was necessary for Court to have consideredwhether the defendant became a statutory tenant after the deathof his father or whether there was a fresh contract of tenancybetween the plaintiff and the defendant. No issues have beenframed to this effect and therefore there is no determination as towhether the defendant was a statutory tenant succeeding to hisfather’s tenancy of the premises in suit on the death of the fatherunder the provisions of the Rent Restriction Ordinance or whetherhe became the tenant on a fresh contract of tenancy.”
This is a Supreme Court decision which is binding on this Court.Therefore it is necessary for a court of law to consider whether thedefendant-appellant became a statutory tenant after the death of hisfather, or whether there was a fresh contract of tenancy between theplaintiff-respondent and the defendant-appellant. It is clear thedefendant-appellant became a statutory tenant under section 36 ofthe Rent Act, there being no fresh contract of tenancy between theparties. Further it is not possible to say that the premises have beenlet to the tenant after the date of commencement of. this Act, i.e. after1.3.72, for the defendant-appellant to-Insist on one year’s notice.There was no letting of these premises to the defendant-appellantafter 1.3.72; the defendant-appellant succeeded to the tenancy byoperation of law under section 36 and became a statutory tenant.
Therefore I am unable to accept the argument adduced bylearned counsel for the defendant-appellant. I hold that the sixmonths', tjeisbe given is vaiid and that ail the other ingredientsnecessary have been established as held by the learned AdditionalDistrict Judge.
I therefore dismiss the appeal with costs payable by thedefendant-appellant to the plaintiff-respondent.
EDUSSURIYA, J. – / agree.