128-NLR-NLR-V-54-A.-VISUVASAM-Appellant-and-S.-ARUNASALAM-Respondent.pdf
SWAN <T.—Visuvasamv. Arunasdlam
527
1953Present: Swan J.
A. V1SXJVAS AM, Appellant, and S. ARUNASA Tj AM, RespondentS. C. 117—G. R. Colombo, 34,818
Rent Restriction Act, No. 29 of 1948—Bathing well—“ Business premises ”—
Section 27—Arrears of rent—Computation.
A bathing well and its appurtenances may come within the definition of“ business premises ” in section 27 of the Rent Restriction Act.
Where the date of payment of the monthly rent was fixed by agreementbetween the parties, the question whether the tenant is in arrears of renthas to be decided on the evidence and not according to the common law.
/, PPBAT, from a judgment of the Court of Requests, Colombo.
H. V. Perera, Q.G., with M. I. M. Haniffa and M. Markhani, for theplaintiff appellant.
K. Charavanamuttu, with T. Velupillai, for the defendant respondent.
Cur. adv. wit.
March 2, 1953. Swan J.—
The plaintiff-appellant brought this action against the defendant-respondent for ejectment from premises No. 136, Dias Place. Thecontractual tenancy had admittedly been determined by notice to quit.The appellant claimed the right to eject the respondent on two grounds,namely :—-
that the respondent was in arrears of rent ;
that the appellant required the premises for his own business.
It was also contended at the trial that the Rent Restriction Act didnot apply as the premises in suit were a bathing well. These threepoints were the matters in issue, and the learned Commissioner heldagainst the appellant on every one of them and the action was dismissedwith costs.
As regards the applicability of the Rent Restriction Act it would dependon whether or not this bathing well would come within the definition of“ business premises ” as set out in Section 27 of the Act. Before com-menting on that phrase I should like to refer to the view taken by Bas-nayajfe J. in Pakiadasanv. Marshall Appu 1 that a grassfield and vegetableenclosure could not be said to be “premises ”. 'The learned Commis-sioner considered this judgment and came to the conclusion that thebathing well and its appurtenances came within the ambit of the term“ premises ” to which the Rent Restriction Act applied. With thisfinding of fact I am unable to disagree. Accepting that this bathingwell does come within the meaning of the word “ premises ” as used inthe Act I have no hesitation in holding that it would be a “ business
(1951) 52 N. L. R. 335 ; 44 C. L. TV. 12.
528
SWAN J.— Visuuasam v. Arunasalam
premises ” as contemplated in Section 27. In that section we are toldthat “ residential premises ” are those which are occupied wholly ormainly for the purposes of residence, and that all other premises are£ ‘ business premises ”. I agree with the finding of the learned Commissionerthat this bathing well is a " business premises ” and that the RentRestriction Act does apply.
On the question of reasonable requirement I am unable to say thatthe view taken by the learned Commissioner was wrong. He has giventhe matter careful consideration and come to the conclusion that to ejectthe respondent would be a greater hardship than to restore the appellantto possession.
There remains the last question, namely, whether the respondentwas in arrears of rent. On this matter I think that the learned Commis-sioner has misdirected himself. Each month’s rent according to theappellant was payable on the 1st of that month—according to the re-spondent on the 20th of the following month. Instead of deciding thisquestion one way or the other the learned Commissioner has adopted astrange attitude. He states in his judgment that although the respond-ent’s version that rent was payable on the 20th of the following monthwas “ unusual ” it would be unsafe to hold against him on that ground.If he had also taken into consideration that the respondent had not paidanything by way of deposit or advance he would, I am sure, have saidthat the respondent’s version was not only unusual but also improbableand difficult to believe. The learned Commissioner goes on to say :—“ In the absence of reliable evidence I wish to fall back on the commonlaw and say that it must be deemed in the circumstances of this casethat the rent became due at the end of each month. ” It is here that hehas misdirected himself. He should have decided on the evidence andthe probabilities whether the rent was payable on the 1st of each monthor on the 20th of the following month.
To send the case back for an answer to this issue would mean unneces-sary delay. There is sufficient material before me to justify my decidingthis point. The respondent was shown to be an untrustworthy witnessin another matter. On this particular point, namely, the date of paymentof rent his evidence was equally unreliable. Although in his answerhe had taken up the definite position that rent was payable on the 20thof the following month, he said at first in his evidence that there was noagreement as to the date of payment, but subsequently had to revertto the other position. I would hold on the evidence that rent was payableon the 1st of each month. Rent for August 1951 was not tendered till1.10.1951 on which date it was clearly overdue. The respondent wasin arrears of rent within the meaning of Section 13 (1) (a) of the Ac? andthe plaintiff was therefore entitled to succeed.
The judgment of the learned Commissioner is set aside. Decree willbe entered for the plaintiff as prayed for in the plaint. The respondentwill pay the appellant the costs of this appeal.
Appeal allowed.