I. ABDUL RAHIM and others, Appellants, and M. D. GUNASENA CORPORATION LTD., R

100-NLR-NLR-V-66-I.-ABDUL-RAHIM-and-others-Appellants-and-M.-D.-GUNASENA-CORPORATION-LTD.-R.pdf


SRI SJCANDA RAJAH, J.—Abdul Rahim v. Gunasena Corporation Ltd. 419
1964Present: Sri Skanda Rajah, J., and Alles, 3.I. ABDUL RAHIM and others, Appellants, and M. D. GUN AS ENACORPORATION LTD., Respondent
S.G. 291/1962—D. C. Colombo, 49195/M
Rent Restriction Act—Section 13 (1) (c)—“ Reasonable requirement ”—Date at which it
should be shown to exist—Right of appeal—Courts Ordinance, s. 36.
The date at which the reasonable requirement of the landlord in terms ofsection 13 (1) (c) of the Rent Restriction Act should be shown to exist is the datewhen the Court makes the ejectment order and not the date of the institutionof the action.
Kader Mohideen v. Nagoor Gang (60 N. L. R. 16) not followed.
A judgment obtained by a landlord on the ground of reasonable requirementis subject to appeal to the Supreme Court.
Appeal from a judgment of the District Court, Colombo.
E. Chitty, Q.C., with T. Arulananthan and E. B. Vannitamby, forthe defendants-appellants.
V. Perera, Q.C., with Desmond Fernando, for the plaintiff-respondent.
Cur. adv. vult.
September 16, 1964. Sri Skanda Rajah, J.—
The plaintiff-respondent sued the defendants-appellants, its tenants,forejectment from premises No. 223, Norris Road, Colombo, on the groundthat the premises are reasonably required by the plaintiff for the purposesof its business.
The plaint was filed on 1.2.1960 and the answer on 12.7.1960. The casewas taken up for trial on 18.10.1960, on which date the Chairman of theplaintiff corporation, Gunasena, gave part of his evidence-in-chief and thehearing was adjourned, for 25.11.1960,on which date the case was takenoff the trial roll for filing amended plaint on 6.12.1960. Amended answerwas filed on 17.1.1961. The case was then heard on 23.10.1961 and otherdates. The evidence was concluded on 27.10.1961, arguments were heardon 27.11.1961, written submissions tendered on 19.12.1961 and judgmentwas reserved for 30.1.1962 ; but, ultimately delivered on 6.6.1962.
The amended plaint was necessitated by the plaintiff pleading a furtherground for ejecting the defendants, viz., that the defendants had sub-letparts of the premises after they became the plaintiff’s tenants. This was
420 SRI SKANDA RAJAH, J.—Abdul Rahim v. Ghunasena Corporation Ltd.
^fmconcl string to the plaintiff’s bow—in the event of the plaintiff failing4© prove that the premises are reasonably required for the purposes of itsbusiness it could still rely on the ground of sub-letting.
The learned Additional District Judge has held that the plaintiffreasonably requires the premises for the purposes of its business.The appeal is from this finding.
Regarding the alleged sub-letting, he has held against the plaintiff.The evidence regarding sub-letting after the plaintiff became the owner ofthe premises was so meagre that the learned Judge’s finding cannot besaid to be wrong. Once this conclusion was reached the need forconsideration of the issues of law based on sub-letting did not arise.
Relying on Coplans v. King1, Mr.Perera,for the respondent, argued thatthe decision of the District Judge regarding comparative hardship whenconsidering whether or not to make an order for possession within the RentRestriction Act on the ground of reasonable requirement was final andoannot be made the subject of appeal to this Court. He further arguedthat once the trial Judge had exercised his discretion and come to aconclusion as regards reasonable requirement his finding would be oneof fact and, therefore, final' and not subject to appeal.
In England, section 105 of the County Courts Act, 1934, makes thedecision of a county court judge, who hears such cases, on a question of factfinal. There was a similar provision in our Civil Procedure Code regardingthe decision on certain matters of a Commissioner of Requests, viz,,section 833A which has now been repealed by Act 5 of 1964. The extentof the appellate jurisdiction of this Court is contained is section 36 of theCourts Ordinance. It extends “ to the correction of all errors in fact orin law which shall be committed by any District Court ”. I would,therefore, hold that Mr. Perera’s submissions are untenable.
Mr.Chitty’s complaint that the trial Judge’s approach to the question ofreasonable requirement was wrong and influenced by irrelevant consider-ations is not without substance. For instance : (1) the judge refers to thedefendants as T.R.P. (Temporary Residence Permit) holders ; and (2)to their reply P2 to the notice to quit as “a defiance suggesting theplaintiff to take their legal remedy”; (3) he says that “plaintiff’s businessis a great service to the public”; and (4) adds that he is “ not influencedby quasi-political considerations in this case whether it be for theimplementation of the language policy or not
These considerations are quite irrelevant for deciding the question ofreasonable requirement. One is reminded of the words : “ Out of theabundance of the heart the mouth speaketh ”.
1 {1947) 2 A. E.R. 393.
SRI S RAND A RAJAH, J.—Abdul Rahim v. Ounasena Corporation Ltd. 421
“ What is the date at which the reasonable requirement of the land-lord should be shown to exist ? ” was a question posed by me to Mr. Perera.Relying on Kader Mohideen v.Nagoor Gany1, he said that it was the date ofthe institution of the action. In that case Sinnetamby, J., held that “theCourt cannot take into consideration events that occur subsequent to thedate of action ”.
In Ismail v. Herft2, Windham, J., said, “ The time at which the conditionset out in section 8(c)of the Rent Restriction Ordinance, No. 60 of 1942.(now section 13 (1) proviso (c) of the Rent Restriction Act, 1948), must beshown to exist by a landlord is, I conceive, the time when the court isrequired to make the ejectment order
In Andree v. de Fonseka3, Gratiaen, J., said, “ the reasonableness of thelandlord’s demand to be restored to possession for the purposes of hisbusiness must be proved to exist at the date of the institution of the actionand to continue to exist at the time of the trial
In Aranolis Appuhamy v. de Alwis4, Sansoni, J., adopted this view. Inhis judgment Sansoni, J., referred to Ismail v. Herft (supra) and KaderMohideen v. Nagoor Gany (supra) also.
In Swamy v. Gunawardena5, Weerasooriya, J., held that the point of timeat which the conditions set out in paragraph (c) of the proviso to section 13of the Rent Restriction Act must be shown to exist is the time when theCourt is required to make the ejectment order and not the date ofinstitution of action.
We are in respectful agreement with the view expressed in Ismail v.Herft, Andree v. de Fonseka, Aranolis Appuhamy v. de Alwis, and Swamy v.Gunawardena (supra).
Now I will examine the evidence oral and documentary, to see if at thetime of the judgment in this case the plaintiff’s demand to be restored topossession for the purposes of its business was still reasonable, even if itwas reasonable at the time of the action.
The plaintiff purchased premises No. 223 in 1956 while the defendantswere still in occupation as tenants. They attorned to the plaintiff, who isalso owner of the four adjoining premises—213, 215, 217 and 219. Thesepremises, like 223, have two road frontages, viz., Norris Road on one sideand Maliban Street on the opposite side. The plaintiff gave the defendantsnotice to quit dated 24.11.1958 (PI) adding that action for ejectmentwillbe instituted on failure to comply. By P2 of 6.12.1958 the defendants
1 (1958) 60 N. L. R. 16.3 (1950) 51 N. L. R. 213 at 214.
(1948) 50 N. L. R. 112 at 116.4 (1958) GO N. L. R. 141 at 142.
6 (1958) 61 N. L. R. 85.
2
422 SRI SJLANDA RAJAH, J.—Abdul Rahim v. Ounctsena Corporation Ltd.
replied pointing out that the plaintiff had already demolished the buildingson 213 and 215 and new buildings were being constructed and was intend-ing to do the same in respect of premises 217 and 219 and, therefore, whenall those new buildings were completed the plaintiff will have such spaciouspremises as would eliminate reasonable requirement. P2 further stated thatthe defendants would suffer untold hardship by having to vacate premises223 and added, “ Your clients are entitled to carry out their threats andmy clients will seek their legal remedy in reply.”—This cannot be construedasa“ defiant suggestion ”.
Gunasena’s evidence given on 23.10.1961 reveals, inter alia : The fourpremises 213, 215, 217 and 219 had been completely demolished for erectinga new building consisting of basement accommodation, ground floor andtwo storeys and the building was nearing completion. At that timeplaintiff was in occupation of rented premises No. 185, Norris Road.Besides, the plaintiff was the owner of 7 and 9, Trinity Place, 128 and150, Mihindumawatha, 20, San Sebastian Hill, 93/41, Norris Road—totalextent being over two and a half acres—From 29.4.1960 plaintiff becameowner of still other premises—109, 111 (Victoria Hotel premises) and 113,Norris Road, 7, 11, 13, 15,17 and 19, First Cross Street and 60 and 62,Maliban Street in extent 34 perches. The plaintiff is also owner of 123,Norris Road, and 72, Maliban Street, where the Wijesiri Hotel is.
His evidence given on 27.10.1961 shows:—(a) Application was made bythe plaintiff on 13.8.1960 (v. D15) to erect a building at Trinity Place forprinting and stores (v. plan D12b) and it was approved on 23.8.1961—Thatplan reveals that the building was to consist of two storeys and the groundfloor ; printing (part of the plaintiff’s business) is to be carried on there ;provision was made for a total floor space of 13,129 square feet; this wasthe first stage of development; the second and third stages of developmentwere to be offices (v. site plan in D15b—(1), (2) and (3)—and the groundarea covered by the proposed buildings (2) and (3) being much largerthan that by the building (1), which is 3,794 square feet, the firststage of development) ; (b) Application was made by plaintiff on11.10.1960 for building a bookshop and offices on 213, 215, 217 and219, Norris Road (v. 1)16., D16a, D16b and D16c) and it wasapproved on 15.11.1960. The ground area covered by the building is7,614 square feet and the total floor space of all floors is 23,482 squarefeet. The building consists of a basement, ground floor and two storeys,whereas it consisted of a ground floor only before demolition—i.o.,presumably 7,614 square feet. D16c shows that the basement is tobe used as stores. Extensive office area is provided for and a restauranttoo. It would appear that these plans were submitted nine months afterthe institution of this action. Gunasena’s evidence on this point is thatthe plans were made to meet all the plaintiff’s requirements at that time,i.e., to meet all the plaintiff’s requirements nine months after this actionwas instituted. This building was about to be completed in about two tofour months of 27.10.1961—that would be between the end of December,1961, and February, 1962.
SRI S RAND A RAJAH, J.—Abdul Rahim v. Gunas&na Corporation Ltd. 423
It would, therefore, appear that before judgment was delivered inthis case the plaintiff had converted premises 213, 215, 217 and 219 intopremises with floor space more than three times the original floor space.
This aspect of the matter had not been adverted to by the learned Judge.Had he directed his mind to this important aspect instead of to matterscompletely irrelevant he could not have reached the conclusion he did asregards reasonable requirement, viz., “ There is no evidence that thelandlord in this case has at his disposal suitable premises which he canwithout difficulty appropriate for his own use. All that he has got istotally inadequate for his needs. It is not the number of premises he hasgot but the sufficiency of the premises that has to be considered
The new building on 213, 215, 217, and 219, Norris Road, is more thansufficient to meet the plaintiff's requirements for carrying on the businessof book-sellers, publishers, stationers, and paper merchants.
In examination-in-chief itself Gunasena said that the defendants carryon business in cereals and foodstuffs. Cader’s evidence is that the defend-ants are exporters and importers. Besides, there were documentsproduced to show the turnover of the defendants’ business. Therefore,it is surprising that the learned Judge said, “One really is in doubt as towhat sort of business is done by them (defendants). I have no doubt thatthe document D20, the income tax assessment, is of no avail to thedefendant.” The learned Judge appears to have been more concernedwith the fact that the defendants are “ T.R.P. holders ” than withevidence favourable to them.
For these reasons, we would hold that at the time of the judgment inthis case the plaintiff’s demand to be restored to possession for the purposeof its business was not reasonable. The answer to issue No. 1—Arethe premises in suit reasonably required by the plaintiff for the purposeof business within the meaning of section 13 (1) (c) of the Rent RestrictionAct ?—should be in the negative.
In the result, the appeal is allowed and the plaintiff’s action for eject-ment is dismissed with costs both here and in the Court below. Rentis payable from 1.11.1958. Credit should, however, be given to thedefendants in respect of remittances, if any, received and accepted by theplaintiff.
Alles, J.—I agree.
Appeal allowed.