082-NLR-NLR-V-72-G.-P.-NANDIAS-SILVA-Appellant-and-T.-P.-UNAMBUWA-Respondent.pdf
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Nandias Silva t>. Unambuica
Present: Wijayafilake, J.
G. P. NANDIAS SILVA. Appellant-, and T. P. UNAMBDWA,
Respondent
S. G. 3/67—C. Ji. Colombo, 39116 {71. E.)
National Housing—Right of tenant to sue sub-tenant—Procedure—National Housing
Act, Pari V—Inapplicability oj Rent Restriction Act.
Plaintiff was a tenant of certain premises of tho National Housing Dopnrtmentunder an agreement whioli provided that, ho should not lot or sub-let any partof tho premises. The defendant occupied a distinct portion of the house ns asub-tenant on a monthly rental of Its. 00. Plaintiff stated in hiscvidenco thatho obtained tho necessary permission from tho Commissioner of NationalHousing.
Held, that tho plaintiff was entitled to sue tho defendant for ejectment fromtho annoxo on tho basis of a monthly tenancy. In such a case neither theRent'Restriction Act nor the special procedure prescribed in Part V of thoNational Housing Act is applicable.
Appeal from a judgment of tho Court of Requests, Colombo.
II.-IV. Jayzicardcne, Q.G., with IT. E. ]V cent soar ia, for the defendant -appellant.
Walter. Jayaicanlena. Q.C. with Lak-dimmi Kadirrjamar. for the ■plaintiff-rospoudout.
Cur. udv. vult.
IVIJAYATIIjAKE, J.—Xand/js Silra r. Vnambuu-a
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November 25, 10GS. IVjjavatjlake, J.—
Tn (his case the jdaintiff has sued (lie defendant for ejectment from theannexe to premises C23, Xawala Jtond. Pajagiriya, on the basis of amonthly tenancy. The learned Commissioner entered judgment for theplaintiff as prayed for.
Admittedly the premises in question arc owned by the National HousingDepartment and the plaintiff is a tenant of this Department (videtenancy agreement D1 of 2.12.00). It would appear that the plaintiff,who is a President, Labour Tribunal, was transferred to Kandy and one
P.»S. Perera camo into occupation as his tenant and sometime thereafterthe defendant occupied a distinct portion of tin's house as a sub-tenant ona monthly rental of Its. 00.
Learned Counsel for (he appellant has raised several defences: Firstly,whether this action is properly constituted ns admittedly tho NationalHousing Department- is tho landlord under the agreement DI. Chiu so 8 offids agreement provides-that- tiro tenant (the prcseiiLphtintiff) shall not letor sub-let any part of the premises. Tito National Housing Act No. 37 of1054 has in Part V sot out tho procedure for tho recovery of possession ofhouses let out by the Department. Jn fact die defendant in tho presentaction was a party to an application made under the aforementionedprocedure by the Commissioner of National Housing in respect of thesevery premises, and it was hold by this Court that tho procedure referredto is not available in a case whore tho original occupier holding underthe Commissioner sub-lets the premises or permits some other person(not being a, dependant) to occupy ihe promises. Tho Amending ActNo. 30 of 1906 clarifies the position (vide G. P. N. Silva v. Commissionerof National I Ion si nr;)1. Therefore in my view the objection to this actionon this ground cannot bo sustained.
Secondly the question has boon raised as to whether tho defendant is atenant cf the plaintiff. Counsel for the appellant submits that on thoevidence of plaintiff himself it is clear that there is no privity of contractas between the plaintiff and the defendant ; the defendant having comeinto occupation as a ‘tenant’ of tho plaintiff’s ‘tenant ’. P. S. Perera.Counsel for the respondent has drawn my attention to the original answerwhich categorically admits the tenancy averred in the plaint, althoughin the amended answer the defendant lias sought to deny it. The plain-tiff has produced a serios of letters PI to P9 for the period 11.3.63 to10.1.G4 showing that the defendant haci forwarded the monthly rent inrespect of theso promises to the plaintiff;'so that thore can be no doubtwhatever that although it was through P. S. Perera tho defendant hadcome into occupation of tho premises the defendant had recognised thoplaintiff as tho landlord. In my view this affords adoquato proof of thoprivity of contract.
Thirdly, the Counsel for tho appellant submits that the sub letting isvoid in law' in view of claiiso S of tho agreement Dl. ' Counsel for therespondent has mot this,submission by roljing on the principle set out by
:Sl 1196$ 70 N-:l. P. 57i,' ■
384WIJAYATILAKE, J.—Nandias Silva v. Unambuwa
Wide in Landlord and Tenant (3rd od.) at page 18 that a parson may lot toanothor immovable proporty without having any right or title in it or anyauthority from the truo owner. Vide de A he is v. Perera1. No doubt sub-letting in breach of a prohibition contained in the contract of tenancygivos a landlord a right to cancel the tenancj'. Howevor, in the instantcase, dospito clause 28 of the agroomont which provides for a terminationthe Commissioner of National Housing has not availed himself of it toterminate the tenancy. (Vide Wille pp. 114-116 and 170 and the caseof Robert v. Rasheed 2.) I might state that the only witness in this case isthe plaintiff and his evidence is that in view of clauso 8 of the agreementhe got tho necossary permission from the Commissioner of NationalHousing. It is truo that ho has not callod any evidence in support but thodefondant has not made any attempt to controvert this assertion. I donot think the submission of tho appellant on this ground can be acceptedin tho circumstances.
Fourthly, tho Counsel for tho appellant submits that tho premisos aregoverned by the Rent Restriction Act and therofore a sub-tenant canroly on the statutory protection given to a tenant. Ibrahim Saibo v.Mansoor3. Ho further contonds that the principle set out in the case ofFonseka v. Wanigasekera4 in which Sri Skanda Rajah J. hold that the. Ront Restriction Act does not apply to tho premises belonging to the Crownis of no avail to the plaintiff in the light of the judgment of Gratiaen J.in tho case of Davilh Appu v. Attorney-General*. The facts in the caseof Fonseka v. Wanigasekera appoar to bo analogous to tho facts beforemo and with respect I see no substantial reason to take a different view.In tho earlier case the question was the right of tho Crown to eject anover-holding tenant, and I think it can bo distinguished from tho instantcase.
' Learned Counsel for the respondent has submitted that tho issue raisedby him as to whether tho defendant is estopped in law from denying thetenancy under tho plaintiff had been wrongly rejected by the learnedCommissioner. He relies on the casos of Jayaxuardene v. Jayaivardene 8and Sumanatissa Therunanse v. Pangnananda Therunanse1. LearnedCounsel for the appellant has drawn my attention to tho fact thatestoppel has not been pleaded and thereforo tho loarnod Commissionerwas well within his right in rejecting this issue. I am inclined to agreewith him.
As I have already observed I see no morit in tho several points raisedin this Appoal by the appellant. I would accordingly dismiss the appealwith costs.
Appeal dismissed.
1(1951)52 N.L.R. 433.*(1963) 65 F. L. R.552.
'(1954)55 N.L.R. 517.•(1948) 49 N. L. R.356.
•(1953)54 N.L.R. 217.*(1939) 40 N. L. R.467.(P. C.)
' (1968) 10 N. L. R. 313.(P. O.)