023-SLLR-SLLR-1985-V1-SUBENDRANATHAN-v.-DR.-S.-PONNAMPALAM.pdf
SUBENDRANATHAN
v.
DR. S. PONNAMPALAM
COURT OF APPEAL
SENEV1RATNE, J. (PRESIDENT) AND JAMEEL. J.
S.C. (C.A.) 376/77 – D.C. MOUNT LAVINIA CASE No. 1072/RE.
JANUARY 9, 1985.
Landlord and Tenant – Rent and Ejectment; – Cessation of occupation continuously fornot less than six months – Section 28 (!) of the Rent Act No. 7 of 1972 – Occupation
of wife and children.
•
The defendant who was the tenant of the plaintiff left for Malaysia on 26.11.1973 onan employment contract for two years. He left Ns wife and children beNnd in thepremises but they too joined the defendant in Malaysia on 25.2.1974. On25.11.1975 the defendant and his family returned. The plaintiff filed this suit on
28.6. T974 alleging that as the defendant his tenant had ceased to occupy thepremises without reasonable cause for a continuous period of not less than six monthshe (the plaintiff) was entitled to a decree for ejectment. The District Judge found for theplaintiff and (he defendant appealed.
In respect of the law pertaining to the Rent Act the tenant's spouse and their childrenhave a right, not merely a licence, to occupy the house taken on rent by the tenant Theoccupation of the tenant's wife and children was constructively occupation by thetenant. As the defendant's wife and children left for Malaysia only on 25.2.1974 andas the action was instituted on 28.6.1974 it was badly constituted and notmaintainable as it was filed before the lapse of six months from the departure of the wifeand children.
Casas referred to:
AMs v. Kulatunge (1970) 73 NLR 337 (DB).
Canekeratne v. CanekBratno{1968) 71 NLR 522.
National Provincial Bank Limited v. Ainsworth [1965] AC 1175. 1152.
Brown v. Draper [1944] 1KBD309.
APPEAL from the District Court of Mount Lavinia.
Siva Rajaratnam with S. Mahendran lor defendant-appellant.
H. L. de Sftva, P.C. with N. S. A. Goonetitleke and J. de Almeida Gunaratne forplaintiff-respondent.
Cur. adv. vuft.
April 3. 1985.
SENEVIRATNE, J. (President C/A)
The plaintiff-appellant filed this action on 28.6.74 in the District Courtof Mt. Lavinia seeking to eject his tenant B. Subendranathan from thepremises No. 169 1/2, Canal Bank Road, Wellawatte. The Plaintiffalleged that the defendant had from October 1973 ceased to occupythe said premises for a continuous period of not less than six monthswithin the meaning of section 28 (1) of the Rent Act No. 7 of 1972,and thereby forfeited his tenancy rights in respect of the said premisesand ceased to be its tenant. Section 28 (1) of the Rent Act referred tois as follows :
'Notwithstanding anything in any other provisions of this Act,where the tenant of any residential premises has ceased to occupysuch premises, without reasonable cause, for a continuous periodof not less than six months, the landlord of such premises shall beentitled in an action instituted in a court of competent jurisdiction to, a decree for the ejectment of such tenant from such premises'.
Yhe defendant filed answer stating that he left Sri Lanka on
to take up an appointment in Malaysia on contract for 2years, that his stay in Malaysia was purely temporary for the purposeof employment and that he had not ceased to occupy the premiseswithout reasonable cause within the meaning of section 28 {1) of theRent Act. The answer further stated that after he left Sri Lanka on
his wife and children continued to occupy the saidpremises until 25.2.1974 when they left to Malaysia to join thedefendant. The main plea taken up by the defendant was set out asfollows : – When this action was originally instituted on 28.6.74 theplaintiff was not entitled to do so inasmuch as the defendant's wifeand children were in occupation of the said premises until 25.2.74.Hence a continuous period of not less than six months ofnon-occupation within the meaningof section 28 (1) of the Rent Acthas not elapsed when this action was instituted, The defendant alscvaverred that the plaintiff had failed to terminate the tenancy betweenthe parties in respect of the premises, and hence cannot maintain thisaction.
At the trial several issues were raised, of which I will refer to issues{1) and (2) in respect of which this appeal can be decided.
Issue No. (1) Has the defendant ceased to occupy the premisesin suit for a continuous period of not less than sixmonths as set out in paras 2 and 3 of column 1 ofthe amended plaint ?
(2) – If so, is the plaintiff entitled to eject the defendantand all those holding under, him from the saidpremises.
The learned District Judge has answered both these issues in theaffirmative and those findings are some of the findings which havemade the Judge give judgment for the plaintiff-respondent in. thisappeal. The defendant has appealed from this judgment.
As stated earlier, in the plaint the plaintiff has specifically stated thatthe defendant left for Malaysia in about October, 1973. The plaintiff inhis evidence has stated that he heard that the defendant and familywent to Malaysia in November, 1973. Again the plaintiff has stated in
his evidence-'I thought that the defendant's wife also left'. Thelearned Judge in his judgment has held that the following facts havebeen proved and admitted also by both parties
• (1) That the defendant was the tenant of the plaintiff in thepremises in question;
That on 26.11.73 the defendant alone left for Malaysia for ajob;
Till 25.2.74 the defendant's wife and children lived in thesepremises and on this date left for Malaysia ;
On 20.9.75 the defendant and family visited Ceylon and gotback their ration books ;
On 22.11.75 again the defendant and family left for Malaysia,and the ration books were returned ;
The defendant came to Ceylon on 12.3.77 for his mother'sdeath. On 20.3.77. the defendant returned to Malaysia.
The learned Judge held that the action has been filed on 28.6.74six months after the defendant ieft for Malaysia : that, the defendanthad been away for six months when the plaint was filed. As statedearlier this appeal can be decided on issues (1) and (2) set out above,and for the purpose of this appeal it is not necessary for the Court todecide issue No. (3) – Whether the defendant ceased to occupy thesaid premises without reasonable cause within the meaning of section28(1) of the Rent Act, No. 7 of 1972, which the learned Judge hasanswered in the affirmative. As regards Issue No. (1) the learnedJudge’s finding in the affirmative has been based on this reasoning. Hehas held that the defendant has ceased to occupy the premiseswithout reasonable cause-for a continuous period of not less than sixmonths. In coming to this conclusion the learned Judge has restrictedthe operation of section 28 to the "tenant" only. If the defendant'swife and children are considered as having a right to occupy thepremises let to the defendant, after the defendant went to Malaysia,as it has been held that the defendant's wife and children left forMalaysia only on 25.2.74, six months had not elapsed when theaction was filed on 28.6.74.
The learned Judge held that the defendant has ceased to occupythe premises for a continuous period of sjx months. His finding infavour of the plaintiff on this point is due to the following reason-(atpage 97)-The learned Judge has held as follows
•
"Section 28{ 1) of the Rent Act refers to the 'tenant* only. Thissection does not mention the members of the family of the tenant.As such, if a tenant without reasonable cause ceased to occupy thepremises for a continuous period of.not less than six months, I am ofthe view that a landlord can eject the tenant from such premises".
On this reasoning the learned Judge does not accept the right of atenant's spouse and children to occupy a premises rented by onespouse. In this instance the learned Judge does not recognise inrelation to section 28(1) of the Rent Act the right of the defendant’swife and children to occupy the said premises rented…out by thedefendant. The learned Judge has given a very narrow interpretationto the phrase "tenant of any residential premises". The learned Judgehas failed to realise that the occupancy of the defendant's wife andchildren of the said premises till 25.2.74 was constructively theoccupation by the defendant himself.
execution. In this case their Lordships held that both under theprinciples of Rent Control Legislation and on the principles of RomanDutch Law the wife cannot be deprived by the landlord of her right ofoccupation unless and until the tenant-spouse is duly deprived of hisprotection in accordance with the law. Till such time she has thestatus, both in relation to the tenant and in relation to the landlord, of aprotected person.
The case of N. J. Canekeraine. v. R. M. D. Caneker'atne. {2) wasdecided in the context of a wife deserted by her husband. This casealso recognised the right of a wife to live in the matrimonial home inher own right as the wife.
«
The learned Judge has held that section 28 (1) of the Act refersonly to the tenant {that is, does not refer to the family of the tenant)and in contradistinction he has referred to section 29 <5) of the Actwhich refers to the "landlord or any member of the.family". This is oneof the reasons which has led the learned Judge to restrict the term"tenant" in section 28 (1) to the tenant alone (and not his family). Incoming to this conclusion the learned Judge has overlooked the factthat section 29 (2) deals with the landlord entering into a writtenagreement with the tenant and a term of that agreement is that thetenant will occupy the premises till such time the premises will berequired for "occupation as a residence for the landlord or anymember of his family". Section 29 (5) is a penal provision arising froman agreement entered into under section 29 {2} of,the Act. Thus thereference to the "landlord or any member of the family" in section29 (2) springs from the agreement entered into in terms of section29 (5) of the Act. The Rent Act in several sections refers to the familyof the landlord and the family of the tenant. Section 22 (1) {£>) makesprovision for a landlord to file action against the tenant on the basisthat the premises are "reasonably required for occupation as aresidence for the landlord or any member of the family of the
landlord", Section 36(1) deals with the continuance of
tenancy upon death of the tenant. The first person mentioned amongthe category of persons who will ‘be deemed for the purpose of thisAct to be the tenant of the premisesr, in terms of section 36(1) of theAct "is the surviving spouse". J
In the House of Lords case National Provincial Bank Limited v.Ainsworth f3) Lord Wilberfore held as follows :
'In rent cases, the wife's occupation has to be treated as thehusband's so as to give her the benefit, against the landlord, of tlfetenant's statutory protection'. In the case of Brown v. Draper (4), itwas held ‘that the wife's possession must be regarded as that ofthe husband and could not be treated as unlawful so long as thehusband had the right to claim the protection of the Acts".
For the reasons given above I hold that the learned Judge was inerror in Jaw when he restricted the term 'tenant' in section 28{1) tothe "tenant" only, that is the defendant in this case. I hold that theoccupation of this house by the wife and children of the defendantfrom 26.11 73 up to 25.2.74,:must be deemed to be occupation bythe defendant in this action.- As such when action was filed on
the defendant "had not ceased to occupy such premiseswithout reasonable cause for a continuous period of not less than sixmonths' for the plaintiff to become entitled to institute this action forejectment of the defendant-tenant. I will answer issue Nos. (1) and (2)as follows :
Issue No. (1) : No.
Issue No. (2); No.
In view of my answers to issues (1) and (2) I hold that this action isbadly constituted and should be dismissed. Due to this finding there isno need for me to consider the issue No. (3)-
Has the defendant ceased to occupy the said premises withoutreasonable cause within the meaning of section 28( 1) of the Rent Act,No. 7 of 1972 ?
and issue No. (4)-
t-
Has the plaintiff, terminated the contract of tenancy with thedefendant by due and lawful notice ?
The appeal is allowed with costs.
JAMEEL, J.-1 agree.
Appeal allowed.