019-SLLR-SLLR-1983-2-JAYAWEERA-BANDARA-V.-WEERASIGNEH.pdf
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Jayaweera Bandara v. Weerasinghe
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JAYAWEERA BANDARAV.
WEERASINGHE
SUPREME COURT
SHARVANANDA. J.. WANASUNDARA, J.. AND WIMALARATNE, J.
S.C. 11/82 AND 35/82. C A. APPEAL NO. L/A 134/82D.C. MOUNT LAVINIA 571 /REMARCH 9. 1983.
Landlord and Tenant — Eviction of tenant — Standard rent not exceedingRs. 100/- — The Commissioner of National Housing to provide alternateaccommodation —- Section 22 of the Rent (Amendment) Act. No. 55 of 1980—Rent Act. No. 7 of 1972 and Rent (Amendment) Act. No. 10 of 1977.
The Appellant, who is the landlord of premises where the standard rent does notexceed Rs. 100/- per month, instituted the action to have her tenant(Respondent) evicted on the ground of reasonable requirement under the Rent(Amendment) Act. No. 10 of 1977. This action was filed on 22nd June 1978and the judgment was entered on 25th February. 1980. in the Appellant'sfavour. The Respondent did not appeal against the judgment. The Appellanthowever was prevented from making an immediate application for a writ ofexecution, as the Commissioner of National Housing had not complied with thecondition set out in section 22(1) (c) of the Rent (Amendment) Act. No. 55 of1980.
About nine months later, the Commissioner by his letter of 24th November1980, notified the Court that he had made alternate accommodation availablefor the Respondent. The Respondent upon receipt of this notification by hisletter dated 25th November 1980. made representation to the Commissionerthat the upstair flat allocated to him was not suitable. By a letter of 10thDecember 1980. the Commissioner then informed the Respondent that aground floor flat has now been allocated to him.
Thereupon, on 8th December 1980. the Appellant made application for a writ ofexecution. The learned District Judge directed that notice of the application begiven to the Respondent, and called for the objection of the Respondent. On21st January 1981. the Respondent moved the Court of Appeal, by anapplication for Revision, and on 26th January 1981. filed objections. The Courtof Appeal granted a stay order, but on 13th May 1981 dismissed the RevisionApplication.
Meanwhile, the Commissioner had written to the Respondent on 13th February.1981 stating that unless the Respondent acknowledges the offer
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of 10th December 1980 within seven days, he would consider that theRespondent has no interest in the alternate accommodation provided. No replywas received by the Commissioner.
With the dismissal of the Revision Application and the lapse of the stay order,the Appellant moved again for issue of writ of execution. Though theRespondent objected on 30th September. 1981 the District Judge allowed theissue of writ. As the Respondent appealed again for relief the Court of Appealordered a suspension of the writ for three nrtonths under section 27(c).Simultaneously the Respondent filed an application for leave to appeal againstthe order of the trial Judge and this was decided in the Respondent's favour.
Held –
Where a tenant by his own act has disabled himself from accepting the offermade by the Commissioner, writ can lawfully issue, because it is a case wherethe Commissioner had notified the court that he is able to provide alternateaccommodation for such tenant within the meaning of section 22(1 )(c). This isalso a case where the Respondent must blame only himself for the situation hehas created. He cannot be allowed to take advantage of circumstances whichare self-induced or brought about by himself.
APPEAL from an Order of the Court of Appeal.
K.N. Choksy. Senior Attorney-at-Law. with Mahes Kanagasunderam and NihalFernando for Plaintiff-Petitioner-Appellant.
V.S.A. Pullenayegum with Miss Mangalam KanapathipiHai and Miss DeepaliWijesundera for Defendant-Respondent-Respondent.
Cur. adv. vult
March 24. 1983.
WANASUNDARA. J.
The Appellant, who is the landlord of premises No. 22. DawsonRoad. Colombo 5. instituted this action to have her tenant, theDefendant-Respondent, evicted from the premises on the groundthat they were reasonably required by the Plaintiff-Appellant forher own use and occupation. Even though these are premiseswhere the standard rent does not exceed Rs. 100 per month, it isnow possible because of the amending legislation contained inthe Rent (Amendment) Act. No. 10 of 1977, to institute thisaction for ejectment.
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Jayaweera Bandar a v. Weerasmghe (Wanasundera. J.)
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Prior to this, an unsuccessful attempt had been made by theAppellant to evict the Respondent, but then existing statutoryprovisions of the Rent Act did not permit it. Later, Act No. 7 of1972 was introduced to remedy this, but those provisions didnot permit eviction in respect of tenancies subsisting prior to thedate of that amending Act. The amending Act No. 10 of 1977removed that bar.
Amending Rent Act, No. 10 of 1 977, enabled the Appellant tomaintain this action in respect of these premises even though theletting was prior to March 1972. Such an action however issubject to and governed by a number of conditions. AmendingAct, No. 55 of 1980, has added one more to these conditions.
The salient features are the following:—
The concession contained in section 22 (bb) of institutingsuch an action is granted only to owners of oneresidential premises — Sec. 22 (1 A).
Notice of such action or proceedings must be served onthe Commissioner of National Housing.— Sec. 22(1 A).This, taken with item (d) below, is to ensure alternateaccommodation to the tenant.
Such an action must be given priority over all otherbusiness of the court.— Sec. 22 (1B).
No writ or execution of a decree in such action shall beissued by court until after the Commissioner of NationalHousing has notified to such court that he is able toprovide alternate accommodation for such tenant.— Sec.22 (1C).
Notwithstanding anything in any other law, the executionof a writ of ejectment issued by court shall not be stayedin any manner by reason of any steps taken or proposedto be commenced in any court with a view toquestioning, varying, or setting aside such writ.— Sec. 22(1D).
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The court is precluded from inquiring into the adequacyor the suitability of the alternate accommodation offeredby the Commissioner of National Housing.
The present action was filed by the Appellant on 22nd June1978. After trial, judgment was entered on 25th February 1980,in her favour. The Respondent did not appeal against thejudgment. The Appellant however was prevented from making animmediate application for execution of writ, as the Commissionerof National Housing had not complied with the condition set outin item (d) above.
About nine months later, the Commissioner, by his letter of24th November 1980. notified the court that he had madealternate accommodation available for the respondent.Thereupon, on 8th December 1980. the Appellant madeapplication for a writ of execution. Upon the receipt of thenotification from the Commissioner, the Respondent on his part,by his letter dated 25th November 1980, made representationsto the Commissioner that the upstair flat allocated to him wasnot suitable, considering his age and state of his health. By letterof 10th December 1 980, the Commissioner of National Housingthen informed the respondent that, in deference to his request, aground floor flat has now been allocated to him.
The application for writ of execution made by the appellanttook an unsual turn. The learned District Judge directed thatnotice of the application be given to the Respondent, and thejournal entry of 8th December 1980 shows that he had also, as amatter of course, called for the objections of the respondent.Mr. Choksy submitted that the learned trial judge went wrong atthis point and. but for this error which provided a spring board tothe Respondent to drag out and prolong these proceedings, thiscase would have terminated in a satisfactory manner well withinthe time envisaged by the law.
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On 26th January 1981, the Respondent filed objections in theDistrict Court. A few days earlier, on 21 st January 1981. he alsomoved the Court of Appeal, by an application for Revision (C. A.72/81), praying that he be permitted to lead fresh evidence toshow that the appellant owned more than one residential house.He was thereby seeking to canvass the judgment in the case,although he had not appealed against it. When the applicationwas supported in the Court of Appeal, the respondent asked for astay order, which the Court granted. On 13th May 1981. theCourt of Appeal dismissed the Revision application.
Meanwhile the Commissioner of National Housing had writtento the Respondent on 13th February 1981. stating that unless heaccepts the offer of alternate accommodation contained in theCommissioner's earlier letter of 10th December 1980 within aperiod of seven days, the Commissioner would consider that theRespondent is no longer interested in such alternateaccommodation. No reply to this letter was received by theCommissioner.
With the dismissal of the Revision Application No. 72/81 andthe lapse of the stay order, the Appellant moved for issue of writof execution. The Respondent filed further objections on 28thMay 1981, now taking the stand that the alternateaccommodation offered by the Commissioner was no longeravailable and therefore the court had no power to issue the writ.The fact that the Respondent by his own conduct deprivedhimself of this right was one of the grounds urged against him inall the subsequent proceedings.
On 30th September 1981, after due inquiry, the learnedDistrict Judge rejected the Defendant's contention and allowedthe issue of writ.
Once again the Respondent applied for relief to the Court ofAppeal by way of Revision (C. A. 1191/81). He also prayed for astay order. The Court ordered a suspension of the writ for threemonths, relying on the provisions of section 27(2). This provisiondeals with a different situation and could have had no application
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to the facts of that case. There was therefore no justification forthat order, and we disapprove of that judgment. Simultaneouslythe Respondent filed an application for Leave to Appeal againstthe order of the trial Judge (C. A. L/A 134/81). These twomatters were taken up together and the Court of Appeal grantedthe Respondent leave to appeal. The appeal was decided in hisfavour on 1 5th June 1982. and it is against that judgement thatthe present appeal has been taken.
On the question as to whether the learned District Judge wasin error in permitting the respondent to file objections to theapplication for execution of writ, the Court of Appeal appears tohave entertained some doubts in the matter, but decided that,when an allegation of a fundamental nature like forgery is made,it would be proper for an inquiry to be held. From this premisethe court drew the conclusion that in this case the learned trialjudge was not in error when he allowed objections to be filed bythe respondent.
There is neither statutory provision nor a practice in our courtsfor notice to be given to the judgement-debtor or for thejudgment-debtor to file objections in the case of a firstapplication for execution of writ and made within one year of thedecree as in this case. The requirement of the law is that thecourt must satisfy itself, with reference to the record, ifnecessary, that the application is in conformity with the decreeand if the court is satisfied in this respect, "it shall direct a writ ofexecution to issue to Fiscal". — Section 225(3) Civil ProcedureCode. It should be noted in this connection that this was not acase in which the Respondent had filed an appeal against thejudgment of the’ trial Judge. For all practical purposes the trialhad concluded.
In regard to the issue of writ, the only fetter on this power, asfar as this action is concerned, is to be found in section 22( 1C)of Rent Act, No. 7 of 1 972, which provides that-
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"… no writ in execution of such decree shall be issued bysuch court until after the Commissioner of National Housinghas notified to such court that he is able to provide alternateaccommodation for such tenant."
On the 3rd December 1980. when the Appellant made theapplication for issue of writ, this condition was satisfied. If thisinitial error of noticing the Respondent and calling for objectionshad not been committed, none of the subsequent developmentsinvolving so much unnecessary litigation would have come topass.
The judgment of the Court of Appeal turns mainly on theinterpretation the Court had given to the provisions of section22(1 C). Even before us. both counsel devoted much of theirarguments to this same matter. In fact Mr. Pullenayegumsubmitted that section 22(1 C) is an important safeguard of theright of tenants and said that, since it is a matter of publicimportance, a ruling on this point by us would be welcomed.
Mr. Pullenayegum's contention is that this provision isintended to ensure that no tenant of this category could beevicted and thrown on the street without alternateaccommodation being provided for him. In every case of evictionit is incumbent on the Commissioner of National Housing to seethat such evicted tenant is moved into a house provided by him.He argued that the language of section 22(1 C) properlyinterpreted means that the availability of the alternateaccommodation must exist not at the time of the application forexecution of writ, but at the point of time when the. writ is actuallyissued.
The wording of section 22( 1C) however does not set out thisintention in such express words. Undoubtedly Mr. Pullenayegumis importing into the words, which are not so expressed, ameaning which he considers rational, having regard to theobjects of this legislation. The recent amendements however arenot all one way. that is to say, not wholly tipped in favour of thetenant nor weighted completely against the landlord. They
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indicate a compromise showing a concern for the plight of thetenant as against the acknowledged rights of the landlord.
The section requires the Commissioner to notify to court "thathe is able to provide alternate accommodation for such tenant".This notification or communication by him is to the effect that hehas a house which he is ready to place at the disposal of thetenant for the latter's occupation. This notification then has thecharacteristics of an offer.
The acceptance of this offer and the actual going intooccupation of this alternate accommodation must necessarily lieat the will and pleasure of the tenant. They cannot be said to bematters falling within the responsibility of the Commissioner. Inshort, such a concept cannot be implied by the words used. Mr.Pullenayegam, however, submitted that the tenant's conduct,however reprehensible, is wholly irrelevant to the issue before us,which is a pure question of statutory interpretation. That meansthat where a tenant has unreasonably rejected an offer ofalternate accommodation and the Commissioner has allocated itto another — since the Commissioner has neither an unlimitedamount of houses at his disposal nor can he be expected to keepany premises in a state of non-occupation — then the tenanttaking advantage of his own unreasonable conduct will be ableto keep his landlord at bay for an indefinite period of time. As faras the Commissioner is concerned, it appears that his practice isto make a suitable offer, and if that offer is not accepted he doesnot make a second offer. I am not prepared to say that thispractice is unreasonable.
In all the circumstances, it seems to me more reasonable tohold that, where a tenant by his own act has disabled himselffrom accepting the offer made by the Commissioner, writ canlawfully issue, because it is a case where the Commisioner hadnotified the court that he is able to provide alternateaccommodation for such tenant within the meaning of section22(1 C). This is also a case where the respondent must blame
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only himself for the situation he has created. He cannot beallowed .to take advantage of circumstances which are self-induced or brought about by himself.
For these reasons I would allow this appeal with costs anddirect that writ of execution be issued without delay.
SHARVANANDA, J. — I agree.
WIMALARATNE. J. — I agree.
Appeal allowed