094-NLR-NLR-V-51-YOOSUF-et-al-Appellants-and-SUWARIS-Respondent.pdf
BASNAYAKE J.—Yooauf v. Suwaris
681
1950Present: Basnayake J.YOOSUF et ah, Appellants, and SUWARIS, RespondentS. C. 103—C. E. Kandy, 3,340
Rent Restriction Act, No. 29 of 1948—Section 13—Landlord who is shareholder of acompany—Cannot claim, premises for purpose of company's business—Land-lords need must be immediate—Order giving unsuccessful tenant time to quit—Propriety of such order.
A shareholder who owns houses is not entitled to make use of the provisionsof section 13 of the Rent Restriction Act in order to eject a tenant for thepurposo of providing his company with a place of business.
A landlord’s need must bo immediate and present in order that the courtmay have jurisdiction to entertain his notion to eject a tenant under the RantRestriction Act.
Obiter: A landlord who succeeds in an action for ejectment is entitled toexecute his decree immediately and time can only be given by consent of partiesor, in the event of an appeal, where the execution of the writ would causeirreparable damage to tho unsuccessful party.
./^PPEAL from a judgment of the Court of Requests, Kandy.
U.V. Perera, K.C., with M. I. Mohamed, for the defendants appellants,
B. Wikramanayake, K.C., with Cyril E. S. Perera, for the plaintiffrespondent..
Cur. adv. vult.
May 3, 1950. Basnayake J.—
This is an action instituted by one A. R. Suwaris against five personswho are carrying on business in partnership under the business name
382
BASNAYAKE J.— Yoosuf v. Swearh
of “ Idroos Hardware Stores ” at No. 67 Trincomalee Street, Kandy,(hereinafter referred to as No. 67). On 1st April, 1946, the plaintiffbecamo the owner of the premises in which the defendants are carryingon business. On 25th July, 1947, the plaintiff gave the defendantsnotice of termination of their tenancy on 30th August, 1947, on theground that the premises were reasonably required by him “ for the pur-pose of the plaintiff’s business called Suwaris & Sons, Ltd. ”. Thedefendants in resisting the plaintiff’s action for ejectment assert that thepremises are not reasonably required by the plaintiff as alleged in theplaint “ as the plaintiff owns several business places within the Municipallimits of Kandy ”.
The plaintiff, who owns several houses and lands in and around Kandy,was a contractor by trade. He started and carried on a business underthe business name of u Suwaris & Co. ”. In due course he formed alimited liability company registered under the name of “ A. R. Suwaris& Sons, Ltd.”. The registered company has contracted with the Govern-ment of Ceylon to put up buildings for the University of Coy Ion. Theplaintiff as an individual has no building contracts. The stores andbuilding materials required for the execution of the contract of A. R.Suwaris & Sons, Ltd., are kept at Mahaiyawa, and others at Katukelleand Peradeniya, all places around Kandy.
The plaintiff statos that he requires No. 67 for the purpose of storingthe cement needed for the contract entered into by A. R. Suwaris & Sons,Ltd. It is not the only property owned by the plaintiff in Kandy. Hehas a timber depot in the same street as No. 67, and he has severalhouses in Peradeniya which is nearer the University site than Kandy.
Learned counsel for the appellant makes the submission that theplaintiff’s action is not entitled to succeed on the following grounds:
(а)that the premises are required, not by the plaintiff himself but by
another person, viz., the legal person of A. R. Suwaris & Sons,
Ltd.
(б)that in any event the premises are not reasonably required by the
plaintiff, and
(c) that the plaintiff’s request for the premises is not made bona fide. I
I am inclined to agree with all the submissions of learned counsel.The plaintiff is the landlord of the premises in question and is in hisindividual capacity only a shareholder of A. R. Suwaris & Sons, Ltd. forwhose use he claims the premises. The evidence docs not disclose howmany shares the plaintiff holds in the company. Even if he were theholder of the bulk of the shares he does not come within the ambit ofsection 8 of the Rent Restriction Aot as the premises are not reasonablyrequired for “ the purposes of the trade, business, profession, vocationor employment of the landlord ”, for A. R. Suwaris & Sons, Ltd. is notthe landlord. A. R. Suwaris & Sons, Ltd. is a legal entity differentfrom the plaintiff. A shareholder who owns houses is not entitled to
BASNAYAKE J.— Yootvf v. Suwaris
■m
make use of the Kent Restriction Act for the purpose of providing hiscompany with a place of business. Even if the plaintiff were seekingto get the house for his own personal business, his request is not in myview reasonable as he has not given a sound reason for storing cementin Kandy when his contract has to be executed at Peradeniya where healready has stores and a number of houses.
The defendants have been carrying on business at No. 67 for a long timeand the nature of thoir business is such that it has to be carried on in thelocality in which similar businesses arc situated. They have tried toget other premises but have failed.
Another circumstance which militates against the plaintiff’s claim isthat in July, 1946, he instituted an action for ejectment against thedefendants in respect of the same premises and withdrew it. Thereafterabout a year later, he instituted this action. Evon then the plaintiffexpressed his willingness to give the defondants further time to leave thepremises. It appears therefore that the plaintiff’s need is not immediate.The Kent Restriction Act provides for a case where the premises arereasonably required for the immediate use and occupation of the landlordor his family. It does not enable a landlord to eject a tenant on the offchance of his requiring his house at somo future date. His neod must beimmediate and present in order that the court may have jurisdiction toentertain his action.
The learned Commissioner has allowed the defendants one year’6 timeto quit the house and has ordered that writ of ejoctment should not issuetill that period expires. Whore a plaintiff is declared entitled to anorder for ejectment of his tenant it is not open to the trial judge, exceptwith the consent of parties, to stay execution in that manner.
This is not the only case which has come up in appeal in which a judgehas token upon himself the responsibility of delaying execution withoutan application in that behalf by consent of parties. A judge is not in law■entitled to exercise a sort of patriarchal justice and decide the manner ofrelief that should be granted to an unsuccessful party without oven theconsent of the successful litigant. A plaintiff who succeeds in an actionfor ejectment is entitled to execute his decree immediately and time canonly be given by consent of parties or in the event of an appeal where theexecution of the writ would cause irreparable damage to the unsuccessfulparty. The Rent Restriction Act is designed both for the benefit of thelandlord and the protection of the tenant. Its provisions would berenderod nugatory if a landlord who has succeeded in bringing himselfwithin the ambit of section 13 were to be kopt out of his house merelybecause the Commissioner thinks that he should give the tenant furthertime. The Commissioner is not entitled to interpose his will in that way.
The appeal is allowed with costs both here and below.
Appeal allowed.