017-NLR-NLR-V-55-S.-DEERASOORIYA-Appellant-and-C.-L.-MASILAMANY-Respondent.pdf
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Deerasooriya v. Masilamany
■ 1953Present : Gratiaen J.
S. DEERASOORIYA, Appellant, and C. L. MASILAMANY,Respondent
S. G. 93—C. R. Colombo, 31,117
Rent Restriction Act, No. 29 of 1948—Alternative accommodation■—Can it be providedby altering substantially the structural identity of the protected premises ?—
. Section 13, sub-sections 1, proviso (c), and 3.
A landlord sued his tenant for ejectment on the ground that he “reasonably re-quired ” the leased premises for the purposes of his petroleum agency business.The trial Court passed a decree in favour of the landlord whereby (a) the land-lord was to be restored to possession of a substantial portiop of the premiseswhich would suffice for the purpose of the landlord’s business, and (6) the tenantshould be allowed to remain in possession, at a reduced monthly rental to be sub-sequently determined, of the rest of the premises which, in the opinion of theCourt, would (but only after certain necessary structural alterations had beeneffected) mqet the requirements of the tenant’s business as a timber merchantwhich was being carried on in the premises.
1 Government Gazette 9,228 of 21.1.44.
I GBATIAEiN' J.—Deerasooriya v. Masilamarvy
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Held, u'hafc the decree was quite inappropriate for the reasons (a) that it wouldadmittedly be impossible to provide the tenant with the suggested alternativeaccommodation until certain substantial alterations were first completed, (i>)that it was demonstrably impracticable to afford the necessary protection to thetenant’s business interests during the interval of time.„
Held further, that a landlord who is restored to possession of his premises on theground that he reasonably requires them is not entitled substantially to alterthe structural identity of the protected premises before the period of time fixedby section 13 (3) of the Bent Bestriction Act has elapsed.
,/^LPPEAL from a judgment of the Court of Requests, Colombo.
H. V. Pererct; Q.C., with H. W. Jayewardene, M. I. M. Haniffa and
D. R. P. Goonetilleke, for the defendant appellant.
B. W ikramanayake, Q.C., with J. N. Fernandopulle and E. B.
Vannitamby, for the plaintiff respondent.
Cur. adv. vult.
July 13, 1953. Gbatiaun J.—
This action relates to certain premises in Colombo to which the pro-visions of the Rent Restriction Act No. 29 of 1948 are applicable. Thetenant is a timber merchant and contractor who has during the past tenyears established and progressively improved a lucrative business on thepremises. The landlord is a petroleum agent associated with the ShellCompany of Ceylon, and carries on his activities in another part of thecity. He has sued the defendant for a decree of ejectment on the groundthat the premises are “ reasonably required for the purposes of his busi-ness ” within the meaning of the third proviso to sec. 13 (1) of the Act.
The landlord’s claim, in effect, is that he could improve his agencybusiness considerably by transferring it to the premises now occupied byhis tenant. In that event, he says, he would arrange to lease the premisesto the Shell Company for a term of years ; and the Company would, qualessee, after demolishing the existing buildings of the timber business andsetting up in their place a modem petrol installation at its own expense,continue to employ him on the new premises as its selling agent on far morefavourable terms. He points out that, by way of contrast, his profitsunder existing conditions remain stationary at about Rs. 700 per mensem.
The learned Commissioner was satisfied upon the evidence that thelandlord would in fact gain material pecuniary advantage if this projectcould be carried out. It is implicit, however, in other parts of the judg-ment under appeal that a decree for ejectment would nevertheless lack'the essential element of “ reasonableness ” unless the tenant were at thesame time provided with suitable alternative accommodation from whichhe could conveniently carry on his long established timber business.After an examination of the problem from this angle, the learned Commis-sioner passfed a decree in favour of the landlord whereby (a) the landlordwas to be restored to possession of a substantial portion of the premiseswhich would suffice for the erection of a modem petrol installation, and
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GRATIAEN J.—Deerasooriyct v. Masilamany
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(6) the tenant should be allowed to remain in possession, at a reducedmonthly rental to he subsequently determined, of the rest of the premiseswhich, in the Commissioner’s opinion, would (but only after certain ne-cessary structural alterations had been effected) meet the requirements ofthe timber business. I shall assume, although I am not at all convinced,that this new arrangement would ultimately prove satisfactory.
It is sought to justify this form of decree on the analogy of the decisionof the Court of Appeal in England in Parmee v. Mitchell l. If a decree forejectment is to be passed at all in favour of a landlord, the order for pos-session must, as a matter of form, extend to the entire premises, “for that isthe only way in which the tenant’s interest can he effectively determined ”.In Parmee’s case the tenant actually occupied only a portion of the pre-mises which was sufficient for his own requirements, and had accordinglysub-let the remaining portion to someone else. The Court of Appeal heldthat the tenant was reasonably entitled only to be protected in his con-tinued occupation of the portion which he in fact occupied, and thereforeapproved of a decree whereby the landlord was to be restored to possessionof the entire property, “ but subject to a proviso that the tenant was toremain in occupation of the part of the premises actually occupied by himat an agreed rental ”.
I do not doubt that, notwithstanding the differences which exist be-tween the English Act and the local Act, a decree in the form approvedin Parmee’s case may be justified in appropriate cases in Ceylon. Butsuch a decree is quite inappropriate to the facts of the present case,because :
it would admittedly be impossible to provide the tenant with the
suggested alternative accommodation until certain substantialstructural alterations have first been completed ;
it is demonstrably impracticable to afford the necessary protection
to the tenant’s business interests during this interval of time.
I therefore do not see how in the present case the decree passed by thelearned Commissioner can be modified so as to take the form of the decreein Parmee’s case.
There is a further difficulty which is fatal to the decree under appeal. Alandlord who is restored to possession of his premises on the ground speci-fied in the third proviso to sec. 13 (1) of the Rent Restriction Act, No. 29of 1948, is not entitled substantially to alter the structural identity of theprotected premises before the period of time fixed by sec. 13 (3) has elapsed.If, for instance, a landlord, having regained possession of the premises for hisown use, subsequently vacates them ■without reasonable cause within oneyear, the tenant is entitled as of right to be restored to possession. It istherefore essential that, in such an eventuality, the premises shouldthroughout this period of extended protection continue torbe suitable forthe tenant’s enjoyment in the same manner and for the same purposes ashad obtained prior to the original decree for ejectment. It is only subjectto this important qualification that I agree that there can be f_o objectionto alterations' being effected by the landlord to suit his own needs.
’ (1950) 2. K. B. 199.
Thassim v. Wijekulasuriya
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Ariyaratne v. Silva x. In the present case, the scheme of demoJition andreconstruction contemplated by the landlord . would necessarilydestroy the tenant’s protection should the need for resorting tosec. 13 (3) arise subsequently. Indeed, the scheme is speciallydesigned to place the Shell Company, qua lessee, in immediate occupationof that part of the premises on which the petrol installation is to be es-tablished. The moment that occurs, a breach of sec. 13 (3) is automa-tically committed. No alterations to the premises can therefore be justi-fied which would render the premises unsuitable for the revival of theactivities of the present tenant’s business as a timber merchant.
Even if one gives full effect to the considerations which weighed withthe learned Commissioner, the landlord’s claim to eject his tenant isunreasonable, and the decree under appeal cannot be supported either inlaw or upon the merits of the case. I therefore set aside the judgmentand dismiss the action with costs in both Courts.
Appeal allowed,.