039-SLLR-SLLR-1998-V-2-YOUNG-MENS-BUDDHIST-ASSOCIATION-v.-AZEEZ-AND-ANOTHER.pdf
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Young Men's Buddhist Association v. Azeez and Another
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YOUNG MEN'S BUDDHIST ASSOCIATION
v.AZEEZ AND ANOTHER
SUPREME COURTG. P. S. DE SILVA, CJ.,
RAMANATHAN, J. ANDWADUGODAPITIYA, J.
S.C. APPEAL NO. 100/94
A. NO. 643/81 (F)
C. KURUNEGALA NO. 4508/L
SEPTEMBER 17TH, OCTOBER 1ST AND 31 ST AND19TH, NOVEMBER, 1996
Declaratory action – Business premises – Non-occupation of premises by tenant- Whether co-partners of tenant are liable to ejectment.
The plaintiff sued the dependants who are partners of a business for a declarationof title and ejectment on the ground that M.R., one of the partners who wasthe tenant of the premises had ceased to occupy the premises and consequently,the dependants were in unlawful occupation of the premises.
Held:
Non-occupation of the premises by the tenant per se does not constitute a groundfor ejectment in so far as business premises are concerned; and the defendantswho were partners carrying on business with the acknowledged tenant as at thedate of the action wiere not in wrongful occupation of the premises.
Cases referred to:
Pir Mohamed v. Kadhibhoy 60 NLR 186.
Wijeratne v. Dschou 77 NLR 157, 159.
APPEAL from the judgment of the Court of Appeal.
A. K. Premadasa, PC with Senaka Walgampaya for plaintiff-appellant.
Faiz Musthapha, PC with C. N. Geethananda for defendants-respondents.
Cur. adv. vutt.
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Sri Lanka Law Reports
(1998) 2 Sri LR.
9th December, 1996.
G. P. S. DE SILVA, CJ.
The plaintiff (The Young Men's Buddhist Association, Kurunegala)instituted these proceedings in August, 1974, seeking a declarationof title to the premises in suit, ejectment of the 1st and 2nd defendantsand damages. It was averred in the plaint (i) that the plaintiff hadlet the premises on a monthly tenancy to M. Abubacker and MeeraRawther; (paragraph 4 of the plaint); (ii) that the said Abubacker andMeera Rawther carried on business at these premises under the nameand style of S. M. M. Mohamed Abdulla and Bros, from 1st March.
1940; (iii) that "when the plaintiff discovered the said tenants had leftthe premises the plaintiff refused to accept rent"; that Meera Rawtherhad ceased to occupy the premises; (iv) that the defendants are inwrongful occupation of the premises.
The defendants in their answer pleaded (a) that Mohamed Abdullaand Abdul Rahiman carried on business in partnership at thesepremises from 1.3.1940 under the name and style of S. M. M.Mohamed Abdulla and Bros; (b) that the said partnership was thetenant of the premises; [d) that at all times material the 1st and 2nddefendants and Meera Rawther were the partners of the firm of S.M. M. Mohamed Abdulla Bros., and were the lawful tenants underthe plaintiff; (d) that the partnership paid rent which the plaintiffaccepted.
After trial the District Court entered judgment for the plaintiff. Onappeal, the Court of Appeal set aside the judgment of the DistrictCourt and dismissed the plaintiff's action. Hence the appeal to thiscourt by the plaintiff.
At the trial, the title of the plaintiff to the premises in suit wasadmitted. The burden therefore was on the defendants to prove bywhat right they were in occupation of the premises. Two issues wereraised on behalf of the plaintiff, (i) Are the defendants in unlawful andwrongful occupation of the premises from 1971? (ii) If so, is the plaintiffentitled to the reliefs claimed in the prayer to the plaint?
Oh behalf of the defendants 6 issues were raised and issueNo. 5 which is relevant for present purposes reads thus: "Are thedefendants the partners of the business known as S. M. M. M. Abdulla
SC Young Men's Buddhist Association v. Azeez and Another
(G. P. S. de Silva, CJ.)327
and Bros?". It is to be noted that the District Court answered issueNo. 5 in the affirmative.
Mr. Mustapha for the defendants-respondents strenuouslycontended that the case for the plaintiff as set out in the plaint isthat Meera Rawther is a tenant of the premises in suit. It is so averredin express terms in paragraph 5 of the plaint. What is more, thisposition is strongly supported by the letter P2. Now P2 is a letterdated 8th March, 1974. addressed to the 2nd defendant by theSecretary of the YMBA. The opening words of P2 read as follows:"I write to state that the above premises (ie the premises in suit) wererented out by the YMBA to Meera Rawther who was carrying onbusiness at the said premises under the name "Abdulla and Bros"(emphasis added) P2 goes on to state "Now it has been found thatMeera Rawther is not in occupation of the said premises and thatyou are a trespasser. You had been attempting to create a tenancywithout disclosing that Meera Rawther has left the premises".
Mr. Premadasa for the plaintiff-respondent strongly urged beforeus that it was by reason of a mistake that it was averred in paragraph4 of the plaint and in the letter P2 that Meera Rawther was a tenantof the premises in suit. I find myself unable to accept this submissionfor the reason that P2 was specifically put to witness H. V. Karunadasa,who was called by the plaintiff. His evidence on this crucial point readsthus: "Q. You don't know whether what is set out in P2 is correct?
I think it is correct".
No doubt it is correct to say that on the documents filed of recordMeera Rawther was not one of the original partners of the firm whenthe business commenced in 1940 at the premises in suit. It is alsocommon ground that there were changes in the constitution of thefirm of Abdulla and Bros, from time to time since 1940. However whatneeds to be stressed is that, on the plaintiff's own pleadings, thedocuments P2 and the oral evidence of the plaintiff's witnessKarunadasa, it is not possible to resist the conclusion that MeeraRawther was ah acknowledged tenant under the plaintiff even thoughhe was not one of original partners of the firm at the commencementof business in 1940.
It would be wholly unreasonable to take the view that the avermentsin the plaint, the contents of P2 and the oral evidence adduced on
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(1998) 2 Sri LR.
behalf of the plaintiff, are all the result of a “mistake0. P2 in particularcontained a clear and categorical statement that Meera Rawther wasa tenant. In this connection explanation 2 to section 150 of the CivilProcedure Code is of intense relevance. It is in the following terms“The case enunciated must reasonably accord with the party's pleading. .. And no party can be allowed to make at the trial a case materiallydifferent from that which he has placed on record . . ..
The position then is that Meera Rawther was acknowledged to bea tenant under the plaintiff. On a reading of the plaint it would appearthat plaintiff's cause of action is based on the non-occupation of thepremises by Meera Rawther. However, the fact that Meera Rawtherhas ceased to occupy the premises is of no avail to the plaintiff,inasmuch as non-occupation per se does not constitute a ground ofejectment in so far as business premises are concerned (P/r Mohamedv. Kadhibho/'h, Wijeratne v. Dschoi/2K Moreover the plaintiff has notpleaded an abandonment of the tenancy nor was it put in issue atthe trial. In any event the evidence is that Meera Rawther left forIndia only in 1976. The action was filed two years prior to his departure.
It is not disputed that since August, 1962, Meera Rawther wasa partner of the firm of Abdulla and Bros. The finding of the DistrictCourt is that since 1971, the 1st and 2nd defendants are themselvespartners of the firm of Abdulla and Bros, (vide the answer to issueNo. 5 referred to above). In short, the defendants are themselvespartners carrying on business with an acknowledged tenant as at thedate of action. It follows that the defendants are not in unlawful andwrongful occupation of the premises, and issue No. 1 has to beanswered against the plaintiff. In the result, the plaintiff's action fails.The origin of the tenancy and the changes in the constitution of thepartnership do not really arise for consideration having regard to thecase as presented in the plaint and the evidence led on behalf ofthe plaintiff.
For these reasons, the appeal fails and is dismissed but withoutcosts.
RAMANATHAN, J. – I agree.
WADUGODAPITIYA, J. – I agree.
Appeal dismissed.