Fonseka v. Gulamhussein

046-SLLR-SLLR-1978-79-V2-Fonseka-v.-Gulamhussein.pdf


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Fonseka v. Gulamhussein *
COURT OF APPEAL.
WIMALARATNE, P. AND ABDUL CADEK, J.
c. a. (sc.) 725/75 (F)—c.p.. Colombo 43S3/f.d.march 26, 1979.
Rent Act, No. 7 of 1972, section 28—Non-occupation of premises bytenant—Action for ejectment—Premises occupied by employees ofdefendant—Whether landlord had acquiesced—Whether occupation byemployees permissible under section 28.
The plaintiff filed action against his tenant, the defendant, forejectment from certain premises under the provisions of section 28 ofthe Rent Act, No. 7 of 1972, on the ground that “ the defendant has
ceased to occupy the said premises without reasonable cause
for a continuous period! of well over six months. ” It transpired at thetrial that for a period of five years prior to institution of this actionit was the defendant’s employees who were occupying these premises.The learned trial judge held that although some members of the defen-dant’s staff may have lived' in these premises to the knowledge of theplaintiff it cannot be held that the premises in suit was given to thedefendant for the use and occupation of his employees. In appeal thequestion that was argued was whether section 28 (1) of the Rent Actwould prevent an employer from housing his employees in premises thathe had rented" out inasmuch as the house was being put to its naturaluse as residential premises.
Held
The defendant wa<s liable to be ejected as he was not in occupationwithin the meaning of section 28 (1). Occupation -through a licenceeis not protected by the section and unless there is reasonable causethe defendant is liab’e to be ejected. The defendant had not establishedsuch reasonable cause inasmuch as except for stating that thestatus quo ante prevailed he had placed no other cause before theCourt; but the plaintiff had not acquiesced in the defendant’s non-occupation and indeed had drawn his attention to it as far back as1961. However, until 1972 the plaintiff had no opportunity to seek eject-ment on the ground of non-occupation and this action was filed as soonas the opportunity arose after awaiting the stipulated six months.
Per WlMALARATNE, P.
“'Section 28, it would appear, gives protection to a tenant of residentialpremises only if he is in physical occupation. The protection is withdrawnif he has ceased to occupy the premises for a continuous period of sixmonths, without reasonable cause. A tenant who has ceased to occupyas a result of lawful sub-letting or as a result of placing some other
* Affirmed by S.C.—see (1981) 1 Sri L.R.
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person in occupation with the consent of the landlord, express or implied,would have reasonable cause, within the meaning of this section. Butwhere a person is placed in occupation of residential premises by thelandlord, who thereby ceases to occupy, without the consent of thelandlord, express or implied, he would not have reasonable cause.”
Cases referred to
Mohamed v. Kadhibhoy, (1957) 60 N.L.R. 186.
Wijeratne v. Dschou, (1974) 77 N.L.R. 157.
Samerawickrema v. Senanai/ake, SC. 21/73—D.C. Kandy 22104, S.C.
Mts. 23.11.77.
Suriya v. Board of Trustees of Maradana Mosque, (1954) 55 N.L.R.
309 ; 50 C.L.W. 45.
Skinner v. Geary,, (1931) K.B. 560; (1931) All E.R. Rep. 302.
Dando v. Hitchcock, (1954) 2 K.B. 317 ; (1954) <3 WJL.R. 76; (1954)
2 All E.R. 535.
Hiller v. United Dairy, London Ltd., (1934) 1 K.B. 57 ; 150 L.T. 74.
Reidy v. Walker, (1933) 2 K.B. 266; 149 L.T. 238; 49 T.L.R. 386.
APPEAL from the District Court, Colombo.
A. C. Gooneratne, Q.C., with D. R. P. Goonetillake, for the defendant-appellant.
C. Thiagalingam, Q.C., with K. Kanag-lsvaran, for the plaintiff-respon-dent.
Cur. adv- vult.
June 25, 1979.
WIMALARATNE, P.
I have had the benefit of reading the judgment prepared by mybrother, Abdul Cader, J. I agree with the conclusion reached byhim that occupation of residential premises through a licensee oran employee does not give the tenant protection under section28 (1) of the Rent Act, No. 7 of 1972, unless he shows reasonabecausje for non-occupation. In view of the importance of the sub-ject, I wish to add a few observations of my own.
Normally, the tenant of residential premises is also the personin occupation of the premises, and it is; he who enjoys theprotection of the Rent Act. But the Act recognises persons otherthan the tenant as the persons in occupation. Sections 15, 16 and17 are three provision^ where the Act gives protection either tothe tenant or to the person in occupation. A landlord is prohibi-ted from witholding amenities and facilities earlier providedto the tenant or the person in occupation (section 15). Likewise,a landlord is prohibited from using force or causing damage tothe tenant or any person in occupation (section 16). And a land-lord is prohibited from interfering with the use and occupationof, or preventing access to, the tenant or person in occupation(section 17). In these instances, “ person in occupation ” meansa person in occupation with the consent, express or implied, ofthe landlord.
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A tenant can also place a person in occupation by sub-lettingthe premises or a part thereof to a sub-tenant with the priorconsent in writing of the landlord—section 10 (2). Where thetenant sub-lets without such prior consent in writing, the land-lord is entitled to a decree for ejectment against both tenantand sub-tenant—section 10 (5). A sub-tenant in occupation withthe written consent of the landlord is a pers-on in occupation whois in the premises with the consent of the landlord, and, there-fore, enjoys the protection given by sections 15, 16 and 17-
The scheme of the Rent Act, therefore, appear^ to be to protectonly tenants in actual occupation or other persons who are placedin occupation of residential premises by the tenant with the con-sent of the landlord.
Section 28, it would appear, gives protection to a tenant ofresidential premises only if he is in physical occupation. The pro-tection is withdrawn if he has ceased to occupy the premises fora continuous period of six months, without reasonable cause. Atenant who has ceased to occupy as a result of lawful sub-lettingor as a result of placing some other person in occupation withthe consent of the landlord, express or implied, would havereasonable cause, within the meaning of this section. But wherea person is placed in occupation of residential premises by thelandlord, who thereby ceases to occupy, without the consentof the landlord, express or implied, he would not have reasonablecause.
That the Legislature had in contemplation the giving of pro-tection to a tenant of residential premises who is in actualoccupation of those premises, and not through another, isapparent from the provision included in the Rent Act for thecontinuance of tenancy on the death of the tenant. One has tonote the care with which the Legislature has designated, in sec-tion 36, the persons who, on the death of the tenant, are deemedto be the tenant of the premises for the purposes of the Act. Theclassification even draws a distinction between (a) residentialpremises the annual value of which does not exceed the relevantamount and had been let prior to the date of commencement ofthe Act, and (b) residential premises other than those describedin (a). It would be unthinkable that the Legislature intended togive protection to, say, a brother or parent of a deceased tenantof residential premises who himself was not in actual occupation,but had placed his employees in occupation.
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As the case law on the subject has been dealt with fully inmy brother’s judgment, it is unnecessary for me to repeat it.I am of the view that section 28 of the Rent Act gives no pro-tection to a tenant of residential premises who has, ceased to bein actual physical occupation for a period of six months priorto the institution of action for ejectment. The fact that themode of occupation was through the tenant’s employees will notbe a reasonable cause within the meaning of his section, if thatmode of occupation was through the tenant’s employees will notimplied, of the landlord. In the present case, the tenant has notproved that such mode of occupation had the express or impliedconsent of the landlord.
I would therefore, dismiss this appeal with costs.
ABDUL CADER, J.The plaintiff prayed that the defendant, his tenant, be ejectedfrom the premises in suit on the ground “ that the defendant has
ceased to occupy the said premiseswithout reasonable
cause for a continuous period of well over 6 months. ” Thedefendant answered that lie has not ceased to occupy a premiseswithin the provisions of section 28 of the Rent Act, No. 7 of1972, and that the plaintiff was a consenting party to the mannerin which the premises in suit were being occupied.
Among the issues framed were: —
(1) Had the defendant ceased to occupy the premises in suitwithout reasonable cause for a continuous period ofwell over 6 months ?
Has the plaintiff terminated the contract of tenancy with
the defendant ?
Is the plaintiff estopped in law in relying upon the defen-
dant ceasing to occupy the premises in suit ?
Are the premises in suit residential premises ?
The learned Magistrate answered issues (1) and (5) in theaffirmative, issue No. 4 in the negative and No. 3 to the effectthat the termination of the contract of tenancy is not necessary.The answer to issue No. 3 really depended on the answer to issueNo. 1. Only issue No. 1 was canvassed before us.
It transpired at the trial that the defendant went into occupa-tion by tenancy agreement marked PI dated 10.3.1945 and for aperiod of 5 years prior to the institution of this action, the defen-dant had been living at Queen’s Road and it was his employeeswho were occupying these premises.
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Our attention was drawn to P6 wherein the defendant hadstated, “I «jtill continue to occupy the premises along with themembers of the staff, the only difference now being that I occupyNo. 37, Alfred Place, beside the above. ” P17 was addressed tothe defendant, 25, Queen’s Avenue, Colombo 3. In fact, counselfor the defendant did not contest the finding of the learnedMagistrate that the defendant had left the premises in suitin 1955-56. He has held that the tenancy had been in favour ofthe person who has been in physical occupation of the premises,viz., defendant and Gnanapragasam and then defendant and that,although some members of the defendant’s staff may have livedin these premises to the knowledge of the plaintiff, it cannot besaid that premises in suit was, given to the defendant for the useand occupation of his employees. These findings were not can-vassed before u?,, the only matter discussed before us beingwhether section 28 (1) of the Rent Act would prevent an emplo-yer from housing his employees in premises that he had rentedout inasmuch as the hous,e was being put to its natural use asresidential premises.
The question whether a non-occupying tenant would have theprotection of the Rent Act had been the subject of considerationeven under the Rent Restriction Law, No. 29 of 1948, as amendedby Act, No. 10 of 1961 and 12 of 1966. The more acceptable opinionof the Supreme Court was, to the effect that it would be wrongto introduce this English principle into the Ceylon law as theRent Act did not provide such relief. Particular mention shouldbe made of the judgment of Basnayake, C. J. in Mokamed V.Kadhiboy (1) the judgment of Sbarvananda, J. in the case ofWijeratne v. Dschou (2) and the unreported judgment of 5 Judgesdelivered in Derrick Samaraicickrema v. Miss P. S. Senanayake13)
The definition in section 48 of the Rent Act is of no assistanceto decide this question for the reason that residential premises hasbeen defined to mean “ any premises for the time being occupiedwholly or mainly for the purpose of residence ” while residenceitself is not defined. When I look into the Act itgelf, I find thatsection 15 (1) is to the effect that no landlord shall discontinueor withhold any amenities or facilities previously provided forthe tenant of, or the person in occupation, of, guch premises. Butin section 17 (2) it is stated that the person in occupation meansa person in occupation of the premises wih the consent express orimplied of the landlord of the premises. Therefore, though itwould appear that occupation through servants is caught up with-in the meaning oi residence, section 17 (2) provides that such
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occupation shall be with the consent express or implied of thelandlord of the premises. In this case, there has been acquies-cence on the part of the landlord merely because the law did notgive him any assistance. But the moment the law was changedwith the introduction of section 28, he has sought the assistanceof the Court to eject the defendant on the basis that it is thedefendant’s servants and not he who are in occupation of thepremises. Therefore, it cannot be said that there has been con-sent on the part of the landlord express or implied. In the caseof Suriya v. Board cf Trustees of Maradana Mosque (4) Gratiaen,J. stated as follows : —
“Broivn v. Brash (supra) which declared that “a nonoccupying tenant prima facie forfeits his status, as a statutorytenant under the Rent Restriction Acts must not be mis-understood. In Sabapathy v. Kularatne (supra) I intendedonly to accept the dictum that questions of relative hardshipcannot arise where the tenant has completely abandonedpossession of the premises and thereby, to use the words ofAsquith L.J., “ completely removed himself from the protec-tive orbit of the Acts. ” But a tenant who lawfully sub-letsthe premises can in no sense be equated to one who defeatsthe very object of rent restriction legislation by renting ahouse and then, by completely abandoning it, “withdrawsit from circulation ” although it is urgently required foroccupation by others—per Scrutton, L. J. in Skinner v. Geary.See also V/abe v. Taylor. Such instances, as far as Iam aware, have not arisen in any action instituted in Ceylon,and I do not doubt that, if they do, the Courts would refuseto interpret the local Act so as to permit the tenant to claimprotection. But in the normal cases with which we are onlytoo familiar, the landlord can only obtain an order for eject-ment by one or other of the conditions specified in the Act. ”(the emphasis is; mine)
In the Five Bench case that I referred to, Wanasundera, J.stated as follows :—
“ The evidence in that case shewed that the defendanthaving taken the premises for residential purposes was notin physical occupation of them, but had allowed the premisesto be used as his; office and store and also as sleeping quartersfor the employees of his business. Although the defendantwas not residing in the premises with his; wife and children,it seems to me that on the findings of the Cour: the defen-dant was in occupation of the premises through his servantsand the premises ivere being used for his purposes and or.
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his behalf. In this state of facts, with all respect to Alles,J. the question of non-occupying tenant does not appear toarise for consideration. ” (the emphasis is mine)
In both these cases, the question of occupation through alicensee did not arise and these observations, were, therefore,with respect, obiter. But the rights of a non-occupying tenantcame for decision directly in Skinner v. Geary (5). In that case,the defendant took a house and permitted his sister to live in thathouse while he lived in another house. The County Court Judgeheld that the tenant was not in actual occupation of the houseand that he did not retain possession within the meaning ofthe Rent Restriction Act. The appeal was dismissed on the groundthat the fundamental principles of the Rent Restriction Act wasto protect only the tenant who himself resides in the house,and that the tenant to be entitled to the protection of the Actmust be in personal occupation or in actual possession of thepremises.
Scrutton, L.J. observed : —
“ In my opinion, this underlying principle has been treatedas governing the Acts—namely, that these Acts were passedduring war time owing to the scarcity of houses, and thefact that very high rents were being claimed by landlordsfrom tenants led to the intervention of Parliament, whichfixed the rents which could be exacted, and in effect enactedthat if a tenant paid the rent so fixed he should be allowedto remain in occupation. Parliament was dealing with atenant who was in occupation and who was not to be turnedout; it was not dealing, and never intended to deal with atenant who was not in occupation but who wished to say:
‘ Although I am not in actual occupation I claim the rightso long as I pay the rent to 'retain my tenancy ’. ”
It may be noted that it was under similar circumstances thatlocal rent laws, too, were passed.
Slesspr, L. J. said in the same case : —
“ Having regard to the mischief with which the Acts dealand the invasion of the common law rights of the landlords,it would not in my opinion be a reasonable interpretationof the Statute for us to say that a tenant who has acquiredthe legal tenancy of a dwelling hous,e but who does notremain in actual possession thereof is entitled to the protec-tion of the Acts. I, therefore, come to the conclusion thatthe restriction on the landlord’s right to recover possessionir confined to the case of persons who are tenants residing
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on the premises, meaning thereby not residing in the narrowsense, but tenants of whom it can properly be said thatthey are in actual occupation. ”
Of significance is Greer, L.J.’s complaint in the same case: —
“ To add to the provisions of section 4 of the Act of 1923that non-residence shall be a ground for taking the houseout of the protection of the Acts seems to me to be legislation
and not a decision on the meaning of the Acts
It does not qeem to me that mere non-residence justifies theCourt in making an order for possession, inasmuch as it isnot so provided in the Act. ” (the emphasis; is mine)
Then came the case of Dando v. Hitchcock (6) in which Denning,L.J. adopted the dictum of Lord Wright in Hiller v. United Dairy,London, Ltd. (7).
“ If the rights under the Acts which are given to Statu-tory tenants are, as this Court has held in several casespurely personal, I do not see how these rights can bevicariously enjoyed or how the principle of dwelling in thepremises by an agent can be admitted. ”
He went on to quote Lord Goddard, C.J- in Reidy v.Walker (8) : —
“ The Rent Restriction Acts were “ intended for theprotection of a person’s home, ” not for the protection ofsome other rights which he may have. ”
Birkett, L.J. stated: —
“ The principle in Skinner v. Geary and subsequent casesis that just stated by Denning, L.J., namely, that the protec-tion which the Act affords is to the tenant in his own home.
It is a personal thing although that is^ of course, not laiddown in the Rent Restriction Acts. ”
Lord Goddard, C.J. stated :—
“I think that the Acts are intended and designed to
protect the tenants and tenants onlyThe Acts
put very considerable difficulties in the way of landlordsand circumscribe their legal rights to a very great extent. Ido not think that we ought by decisions to enlarge thedifficulties of landlords or to go further than the declaredobject and policy of the Act dictate—that is, to protect thetenants—and I think that it cannot be denied that that means-tenants who live in these housesI can see no reason
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why his tenancy should be protected to enable him to keepin the hous>e a manager, or a partner, or anyone else whomit may be convenient to have there. ”
All these passages cited by me in a large measure support theplaintiff in this action.
In the Five Bench case referred to by me earlier, Wanasundera,
J.stated as follows : —
“The English decisions which hold that a non-occupyingtenant is disentitled to protection against ejectment havesome justification in the language of the U.K. Rent Acts.Section 5 (1) of the English Rent Act of 1920, when con-trasted with the corresponding provisions of our Act, bringsout this feature. The provision of the U.K. Act reads: —
‘ No order or judgment for the recovery of possessionof any dwelling house to which this Act applies or forthe ejectment of a tenant therefrom shall be made orgiven’
The term ‘ dwelling house ’ has been taken to connote aplace where a person resides; and the effect of the provisionis to protect ‘ a person residing in a dwelling house frombeing turned out of his home ”
He went on further to discuss, some of the case law from U.K.and concluded as follows : —
“We have to construe the actual language of our ownlegislation in the context of local conditions without import-ing English doctrines and trying to strain the language ofthe enactment to bring it in line with some pre-concehrednotion. We have no doubt in the past, been guided byEnglish decisions in this field, but such decisions must beused carefully and with discrimination. ”
In respect of the case which was before Wanasundera, J.section 28 of the Rent Act of 1972 had no application, whereasthis case is governed by that section which I quote below : —
“28 (1) Notwithstanding anything in any other provisionsof this Act, where the tenant of any residential premises hasceased to occupy such premises, without reasonable cause,for a continuous period of not less than six months, thelandlord of such premises shall be entitled in an actioninstituted in a court of competent jurisdiction to a decreefor the ejectment of such tenant from such premises. ”
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The English courts have used a dwelling house as synonymous with residence.Therefore, I do not think that a difference in terminology as between “adwelling house" in the English low and "residence" in our law is of any signi-ficance. Without a provision similar to section.28( 1), the English courts feltconstrained to protect the interests of the landlord by limiting the encroach-ment by the Rent Acts into his Common Law rights by looking into thepurpose of that legislation. We have in this country now a special provisionwhich did not find a place in our earlier Acts. It may not be wrong topresume that the section has been introduced by the legislature in the contextof the many cases in our courts on this subject.
It is equally true as in the U.K. that the Rent Restriction Act has beenpromulgated to protect the tenant and thereby a part of the Common lawrights of the landlord were taken away. Therefore, in interpreting our ownRent Act, even as it was stated in the English Courts, which I have quotedabove, it is the duty of this Court to interpret the Act so as to take awayfrom the landlord only so much of the common law rights that have beentaken away expressly by the Rent Act. I mean thereby that a strict interpre-tation of the Statute is necessary. As one reads section 28(1), the impressionthat that section conveys is that it is personal occupation by the tenant that isprotected. This view is sustained by the various passages that I have quotedfrom English courts. Secondly, when a tenant enters into residence on acontract with a landlord and in this case it is in evidence that the contract wasto enable the defendant himself to live on the premises, the tenant can relyon the terms of that contract and nothing more. The defendant is now astatutory tenant inasmuch as the contract has been terminated. In 19542 Q.B., 321, a clause in the tenancy agreement provided that either the tenantor his "present manager" could reside. Denning L. J. said:
"I do not think that the clause in the agreement can be admitted to havesuch an effect. The clause is not carried over into the statutory tenancybecause it is not consistent with the provisions of the Act. It is contraryto the principle that the tenant is only protected so long as he himselfretains possession, which means so long as he himself remains in personaloccupation."
Therefore, even where the contract permitted occupation througfanother, it was held that once the tenant became a statutory tenant eventhough there be a provision in the contract for occupation by another, itceased to have any force. I
I have come to the conclusion that occupation through a licensee is notprotected by section 28(1) and unless there is a reasonable cause, the defen-dant is liable to be ejected. The burden is on the defendant to establishreasonable cause and, except for stating that the status quo ante prevails, noother cause has been placed before the Court.
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As far back as 1961, the plaintiff had drawn the attention of the defen-dant to the fact that he was not in occupation of the said premises. On thebasis that he had sub-let the premises, the plaintiff had served notice onhim to vacate the premises and had even drafted a plaint on that basis. Until1972, the plaintiff had no opporunity to seek ejectment on the ground ofnon-occupation. Immediately, the opportunity arose after awaiting the stipu-lated six months, he filed this action. Therefore, there has been no acquies-cence by the plant iff.
hold that the ■ judgment in favour of the plaintiff has been correctlyentered by the learned Magistrate and dismiss the appeal with costs.
Appeal dismissed
Mendis, Fowzieand othersv.Goonewardena, G. P. A. SilvaCOURT OF APPEAL.
VYTHIALINGAM, J„ ABDUL CADER, J„ AND ATUKORALE, J.
C. A. APPLICATIONS. 669/78, 695/78, 766/78 , 789/78 , 873/78, 805/78, 880/78,924/78, 1024/78, 421/78, 693/78, 750/78, 757/78, 912/78 AND 914/78JULY 30 AND 31, 1979 AND
AUGUST 6,8,9, 10, 13, 14, 15, 16, 17, AND 20, 1979.
Writ of Certiorari — is Commissioner holding inquiry under S. 2 of Commis-sions of inquiry Act and making his report amenable to certiorari ? -Will certiorari He where it would be futile ? — Natural justice — Duty to actfairly — Imposition of civic disabilities — Relevant person – Will quashingof findings of commission involve questioning of validity of laws whichis prohibited by Article 80(3) of the Constitution ?
The President by warrant appointed two one man Commissions underthe Commissions of Inquiry Act to inquire into and report (with theirrecommendations) on whether in the course of the administration by theCouncil or by any person appointed under any written law, of the affairsof each of the twelve municipalities specified in the schedule to the warrant,there had been incompetence, mismanagement, abuse of power, corruption,irregularities in the making of appointments of persons, or contraventionsof any provisions of any written law and the extent of their responsibility.Upon receiving the reports Laws No. 38 and No. 39 of 1978 were passedimposing civic disabilities on certain persons specified in the Schedules tothe two laws against whom findings had been made by the respectiveCommissioners. Fifteen applications were then filed by some of the persons