037-SLLR-SLLR-1995-2-FERNANDO-V.-EDWARD-SOYSA.pdf
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[1995] 2 Sri L.R.
FERNANDO
v.
EDWARD SOYSA
COURT OF APPEAL
A. 80/89
C. MT. LAVINIA 391/ZLWEERASEKERA, J.
DR. ANANDA GRERO, J.
OCTOBER 3, 1994.
Land Lord and Tenant – Demolition of tenanted premises -S. 48 of the Rent Act -Definition of premise – Standard Rent Determined by Rent Board.
Plaintiff-Respondent was the owner of premises No. 29/1 and No. 2912. VisakaRoad, in order to widen the Duplication Road premises No. 29/1 was completelydemolished and greater part of premises No. 29/2, in occupation of theDefendant-Appellant the Tenant was also demolished.
The question arose whether the contract of Tenancy between the parties still existor whether it has come to an end.
Held:
It is in respect of premises No. 29/2, the parties have entered into a contract ofTenancy; after the demolition of 3/4 the part of the premises, one cannot say thatthe premises that was given on rent still exists.
The part of the premises now remaining although some temporary un-authorised structures have been put up by the Defendant in order to remain inoccupation does not in any way come within the definition of “part of thepremises” as contemplated under the Rent Act. Nor does this premises fall intothe category of premises for human habitation in the strict sense of the term.
The contract of Tenancy was not in respect of such part of the building but forthe entire premises and that premises ceased to exist after the demolition.
Per Dr. Ananda Grero, J.
“ The mere fact that the Rent Board made order that the Defendant couldmake an application to determine the Standard Rent to the Board does not inour view make us to come to the finding that there still exists a contract oftenancy between the Plaintiff and the Defendant.”
Appeal from the Judgment of the District Court of Mt. Lavinia.
Cases referred to:
Girtry v. de Silva – 69 NLR 281.
Premadasa v. Atapattu-T NLR 62.
M. A. Marleen for Defendant-Appellant
L. de Silva, P.C. with Ms. Chamantha Weerakoon for Plaintiff-Respondent.
Cur. adv. vult.
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December 9,1994.
DR. ANANDA GRERO, J.
This is an appeal preferred to this Court by the defendant-appellant (hereinafter referred to as defendant) against the judgmentof the learned District Judge of Mount Lavinia dated 19.4.1988,whereby he entered judgment in favour of the plaintiff-respondent(hereinafter referred to as the plaintiff).
It is common ground, that the plaintiff in this case became theowner of premises numbers 29/1 and 29/2 respectively Visaka Road,Bambalapitiya and in order to widen the Duplication Road premisesNo. 29/1 was completely demolished.
It is the position of the plaintiff, that to widen the Duplication Road,the Colombo Municipal Council acquired part of the land where thehouse bearing No. 29/2 stood, and took steps to demolish a greaterpart of the house and after the demolition what was remaining wasnot fit for human habitation. It was the position of the plaintiff that thecontract of tenancy entered into between the parties was in respectof the entire premises, bearing No. 29/2 and not in respect of aremaining part of the premises which became unfit for humanhabitation.
The defendant who was the tenant of the plaintiff of premisesNo. 29/2, admitted that part of the said premises was demolished towiden the Duplication Road, but stated that the remaining portion ofthe premises was quite adequate and fit for human habitation and thesaid remaining portion still falls within the definition of "premises”under the Rent Act.
When this matter was taken up for hearing, the learned Counsel forthe defendant contended although a part of the premises bearingNo. 29/2 was demolished by the Colombo Municipal Council for thewidening of the Duplication Road, the remaining portion comes withinthe definition of “premises” as defined in the Rent Act. He furthercontended that the existing premises has all the facilities of a smallhouse and therefore it is not correct to state that it is not fit for humanhabitation.
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The learned President's Counsel for the plaintiff contended thatmajor part of premises No. 29/2 (i.e. about 3/4 of the building) hasbeen demolished, the remaining part of the roof has to be proppedup and the contract of tenancy was in respect of the entire premisesbearing No. 29/2 Visaka Road, Bambalapitiya. As the originalcontract of tenancy got frustrated there is no such contract that existsbetween the parties and he further contended that the defendant is inunlawful occupation of the premises. He further contended that thelearned District Judge quite correctly decided the case in favour ofthe plaintiff.
It is common ground that the defendant was the tenant of theplaintiff in respect of the premises bearing No. 29/2, which isdescribed in the plaint of the plaintiff, and the contract of tenancycame into being prior to the demolition of the said premises.
P2 is the plan showing premises No. 29/2, Visaka Road, andposition of the line of acquisition affecting such premises. A carefulstudy of P2, reveals that about 3/4 of the aforesaid premises hadbeen acquired and what is left behind is the balance 1/4 of thepremises. Plan D3 shows the position of the part of three premisesbearing No. 29/2, after the acquisition and the demolition of the majorpart of the said premises. According to this plan D3, what is shown inpink colour is the part of the permanent building remaining afterdemolition. Adjoining the remaining part of the building marked A, isa temporary building constructed with planks which is shown as "D"in the said plan. There is also a wooden temporary building used asa store marked “E" in the said plan. Then there is a water closetmarked “C" in the said plan. Only the portion marked “A” remains asthe part of the permanent building of premises No. 29/2 after thedemolition. It is not in respect of the portion of premises marked A inplan D3, the parties entered into a contract of tenancy; but only inrespect of the entire premises bearing No. 29/2 (as it stood before theacquisition and demolition of the said premises.)
It is the contention of the learned Counsel for the defendant thatthe remaining part of the premises bearing No. 29/2 (which is theportion marked A) falls within the definition of “premises” as definedin the Rent Act. Section 48 of the Rent Act No. 7 of 1972 defines
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premises as any building or part of a building together with the landappertaining thereto.
It is crystal clear, that in the instant case there is no complete orfull building that exists today. No doubt such a building existed priorto the acquisition and demolition of part of premises bearingNo. 29/2. What remains now is a small part*of the original buildingbearing No. 29/2. This is shown as “A” in plan D3. According to theevidence of the defendant she says that after the demolition 3/4 ofthe building remains. A perusal of D2 and D3 contradicts herposition. In fact these two documents (plans) clearly reveal that themajor portion of the premises had been acquired and demolished.She has thereafter put up temporary buildings and got them addedto the existing part which is marked A, and the temporary buildingsare shown as D and E in the said plan D3. In fact she has beencharged in the Municipal Magistrate’s Court of Colombo forconstructing unauthorized buildings in this premises (after thedemolition of part of the premises 29/2) and pleaded guilty on23.9.77 and moved for time to remove such unauthorized buildings.The learned Magistrate has given time till 31.8.78 and also ordered to .issue a mandatory order after 31.8.78 (vide certified copy of theproceedings in M.C. Case No. 808 filed of record).
The learned Counsel for the defendant appears to rely on thesecond part of the definition of “premises” in the Rent Act which says“part of a building together with the land appertaining thereto.”
The part of a building “which is described in the aforementioneddefinition is not a part which remains after a demolition of a buildingas in the instant case, that is contemplated in section 48 of the RentAct, but a part of a existing house not partly demolished, with all thebasic amenities, which a tenant can make use of for reasonable andwholesome habitation. It is unthinkable to imagine, that the legislatureintended to assign the meaning of a “parts of a building” to a smallpart of a remaining building after the demolition of a major part of asubstantial building. Such a remaining part of a building as in theinstant case according to my view, is not what is contemplated underthe definition of “part of the premises” in the Rent Act. WitnessSomapala de Silva, the Chief Planning Officer of the Colombo
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Municipal Council has given evidence in this case. P1 and P2 wereshown to him. P1 is the plan showing premises 29/2 (the entirepremises) and the portion acquired to widen the Duplication Road.
P2 is a plan showing clearly the part of the premises (29/2)acquired for widening the Duplication Road, and also the remainingpart of the premises after the acquisition. Based on these two plans,he has stated that after the acquisition of the Major part of thepremises No. 29/2 the remaining part of the premises was not fit forhuman habitation according to the rules and regulations of theColombo Municipal Council. The learned District Judge hasconsidered the evidence of this witness and it appears that he hasrelied on his evidence. This witness was shown D1, D2, and D3 (i.e.notice of acquisition, plan showing the acquisition and plan showingpart of the premises after acquisition) in addition to the aforesaid P1and P2. A perusal of his evidence reveals, that the defendant, afterthe acquisition of part of premises, has put up some temporarystructures and on the whole the present building (partly temporaryand partly permanent) is not fit for human habitation. There is nodoubt that the part of the premises now remaining although sometemporary unauthorized structures have been put up by thedefendant in order to remain in the premises,does not in anywaycome within the definition of “part of the premises” as contemplatedin the Rent Act. Nor does this premises fall into the category of“premises for human habitation" in the strict sense of the term.
Does the contract of tenancy between the parties still exist, or hasit come to an end?
As earlier stated it is in respect of premises bearing No. 29/2, theparties have entered into a contract of tenancy. After the demolition of3/4th part of the said premises, one cannot say that the premises thatwas given on rent still exists. What was given on rent was, whole ofthe premises bearing No. 29/2 and not a remaining part of suchpremises. The defendant tenant went into occupation of the entirepremises.
There is evidence to show that after the demolition of about3/4th part of the premises, there was an open space facing the
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Duplication Road. P2 reveals that unless this part of the house facingthe Duplication Road is propped up with a wall or pillars the roof maycome down and it is dangerous to occupy such remaining part of thebuilding. The room that was remaining was 5 to 6 feet by 8 to 10 feet.There is evidence that the defendant after the demolition of the saidpremises has taken steps to construct unauthorized and temporarystructures which were added to the remaining part of the premisesfor which there was no contract of tenancy between the parties.
After the demolition of the major part of premises bearing No. 29/2,I am of the view that there was no proper building to use and occupyby the defendant tenant. The defendant has subsequently by makingsome additions to the existing part of the building made it somewhata house as one could see; but for which there was no contract oftenancy. But what remained (i.e. the part of the premises) soon afterthe demolition could not be called a building for the use andoccupation of the defendant or any other person. Even if it wasregarded as habitable, the contract of tenancy was not in respect ofsuch part of the building, but for the entire premises, and thatpremises ceased to exist after the demolition.
Both Counsel relied upon the decision of the Supreme Court in thecase of Girty v. De Silva(,). In his judgment Sansoni C.J. quoted Wille,on Landlord and Tenant in South Africa (5th edition) as follows:-
“By the contract the tenant is entitled to the use and occupation ofthe building, and if there is no building to use and occupy, there isno existing contract” (Vide page 282 of the judgment)
In the aforesaid case the building that was given on rent was burntdown without the fault of the landlord and the tenant. The court heldthat the tenancy has come to an end. Such a complete destruction ofthe premises has not taken place with regard to the premises in thepresent case. But on the other hand a major part of the premises wasdemolished leaving behind a small part of it which was not let by theplaintiff to the defendant, and this small part of it as it stood then (i.e.prior to the defendant making alteration and addition) was not aproper building for the use and occupation of the tenant. In thesecircumstances one cannot say the contract of tenancy still exists, and
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no sooner the demolition took place the contract of tenancy came toand end. Furthermore as earlier stated in this judgment, theremaining part of the building does not come within the preview ofthe definition of “premises” as contemplated in the Rent Act.
The case cited by the learned Counsel for the defendantPremadasa v. Atapattu (2> does not apply to the facts of the presentcase. The learned Counsel for the defendant relied upon D5, thedetermination of standard rent made by the Rent Board with regard tothe present premises (after demolition) bearing No. 29/2. The merefact that the Rent Board made order that the defendant could makean application to the Board does not in our view make us to come tothe finding that there still exists a contract of tenancy between theplaintiff and the defendant.
We are in full agreement with the contention of the learnedPresident’s Counsel for the plaintiff that what was let to defendantwas the entirety of the premises bearing No. 29/2 and now whatremains is a different entity for which there is no contract of tenancy.We too agree with his contention that the original contract of tenancyhas come to an end. We also agree with the findings of the learnedDistrict Judge that the plaintiff is entitled to judgment as prayed for inthe plaint.
In the aforesaid circumstances, we affirm the judgment of thelearned District Judge dated 3.5.88 and delivered on 19.4.88 and theappeal of the defendant is hereby dismissed, but without costs.
Considering the fact that the defendant is a lady with children wemake order that writ of ejectment should not be issued till 1st ofMarch, 1995, so that she can find alternative accommodation beforeshe is ejected.
WEERASEKARA, J. -1 agree.
Appeal dismissed.