046-NLR-NLR-V-67-J.-M.-APPUHAMY-Appellant-and-P.-B.-DE-SILVA-Respondent.pdf
Present: Sri Skanda Rajah, J.J.M. APPUHAMY, Appellant, and P. B. DE SELVA, Respondent
S. C. 84162—C. R. Colombo, 84306
Rent Restriction Act—Section 13 (1) (c)—Premises required by landlord for occupa-tion as residence—Meaning of “ immediate requirement
The plaintiff, who was a Government servant due to retire by the 28thSeptember 1963, instituted action on the 19th February 1963 against histenant, the defendant, for ejectment on the ground that the rented premiseswere reasonably required for his occupation as a residence.
Held, that although the plaintiff was in occupation of Government quartersat the time of the institution of the action, it could not be contended that hisrequirement of the rented premises was not immediate at the time of theaction.
Appeal from a judgment of the Court of Requests, Colombo.
O. T. Samerawickreme, with K. Palakidnar, for the Defendant-Appellant.
D. R. P. OoonetiUeke, for the Plaintiff-Respondent.
March 24, 1964. Sri Skanda Rajah, J.—
The plaintiff sued the defendant-appellant for ejectment on the groundthat these premises were reasonably required for his occupation as aresidence.
The words that require construction in this case are contained insection 13 (1) (c) of the Rent Restriction Act and they are : “ Thepremises are in the opinion of the Court reasonably required for occupa-tion as a residence for the landlord or any member of the family of thelandlord, or for the purposes of the trade, business, profession, vocationor employment of the landlord.”
This provision has been the subject of decision in a number of caseswhich fall under two categories. It is sufficient to refer to seven ofthese cases. Six of them have been decided with reference to thepremises being reasonably required for the purposes of the trade of thelandlord.
In the case of Hameedu Lebbe v. AdamSaibo1 Nagalingam, J., heldthat in considering whether the premises are reasonably required forthe use of the landlord in terms of the corresponding section of theRent Restriction Act the fact that the landlord who has no businessof his own wants to earn a livelihood by commencing a business is amatter to be taken into account. In doing so he followed the case ofGunasena v. Sangaralingampillai a.
In the case of Mamuhewa v. Buioanpatirana3, a case decided byBasnayake, J., 35 days after the decision just referred to, he held thatthe trade or business contemplated under the corresponding section isan existing trade or business and not one in posse.
In Andree v. de FonsekaA, Gratiaen J., preferred to follow the viewexpressed by Nagalingam, J., in 50 N. L. R. 181 and did not follow thedecision of Basnayake, J., in 50 N. L. R. 184. This case was also inrespect of a business premises.
The next case was that of Yusoof v. Smvaris 5 decided by Basnayake,J., also in respect of a business premises, where he held that a landlord’sneed must be immediate and present in order that the Court may havejurisdiction to entertain an action to eject a tenant under the RentRestriction Act, and that it was not open to a landlord to claim backhis premises under section 13 (1) (c) of the Rent Restriction Act for thepurpose of establishing a business which is not yet in actual existenceat the time of the institution of the action.
In the case of Mendis v. Ferdinands 8 Dias, S.P.J., following the opinionexpressed by Basnayake, J., in 51 N. L. R. 381, held that whether theplaintiff’s need of the premises waB immediate at the date of the insti-tution of the action was also to be taken into consideration. This wasin respect of a residential premises. As I have already pointed out,the case in 51 N. L. R. 381 was with reference to a business premises.
1 (1948) 50 N. L. R. *81.* (1950) 51 N. L. R. 213.
(1948) 49 N. L. R. 473.• (1950) 51 N. L. R. 381.
(1948) 50 N. L. R. 184.• (1950) 51 N. L. R. 427.
160
In Qunasekera v. Mathew1 which was decided by Gunasekara, J.,the facts were as follows: A landlord instituted an action for ejectmentagainst his tenant on the ground that the premises in question wererequired as a residence for his son who was about 28 years of age ; theson was not dependent on the father. He was engaged to be marriedand the premises were alleged to be required as a residence for him afterhis marriage. The learned Judge held that the words “ dependent onhim ” in the definition of “ member of the family ” in section 13 (1)of the Rent Restriction Act did not qualify “ son or daughter over 18years of age The landlord was therefore entitled to claim the premiseson the ground that they were reasonably required for his son althoughthe latter was not dependent on him. He further held that in order toshow that the premises required for occupation as a residence for thelandlord’s son and the latter’s wife, it was not necessary for the landlordto prove that the son was already married at the time of the trial. Atpage 302 the learned Judge said, “ The appellant and his son stated inevidence at the trial on 14th November, 1951, that the latter had beenengaged to be married since April but that it had not been possible tofix the date for the marriage because he had no place to live in with hiswife. The learned Commissioner accepted the evidence about the engage-ment, but he holds that the need of the premises is not an immediateand present need. ‘ The plaintiff’s son is not married yet ’, he says,
‘ and this action is brought in order to provide a house for his son afterhe gets married. Therefore, the need of the landlord is not immediateand present. The plaintiff’s evidence is that the marriage is not solemn-ized yet as they cannot be provided with accommodation. I refuseto believe this ’. I am unable to agree that in order to show that thepremises are required for occupation as a residence for the landlord’sson and the latter’s wife, the landlord must prove that the son is alreadymarried. If it had been arranged that he was to be married on saythe 14th November 1951, it should surely not be said that because themarriage had not yet taken place the need of a house was not animmediate and present need at the time of the trial.”
In this case the plaintiff was at the time of this action a Jail Guardand he had reached the age of 55 years on 28.9.62. He filed this actionon the 19th February, 1963, Being a Government servant he was liableto be retired at the age of fifty-five. There is evidence in this case thathe was given an extension of one year’s time. Therefore, he would havehad to retire by the 28th September, 1963, and also vacate the Govern-ment quarters. Under the circumstances, I am of the view that thoughhe was in occupation of Government quarters at the time of the insti-tution of this action, his requirement was an immediate requirement.Therefore, Mi*. Samarawickiema’s contention on behalf of the appellantthat the requirement rf the landlord was not immediate at the time ofthe action is not entitled to succeed.
1 would dismiss the appeal with costs.
Appeal dismissed.
1 (1953) 64 N. L. B. 299.