SIRIWARDENA v. HEWAGE

003-SLLR-SLLR-1997-V3-SIRIWARDENA-v.-HEWAGE.pdf


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Siriwardena v. Hewage
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SIRIWARDENA
V.
HEWAGE
SUPREME COURT.
G.P.S. DE SILVA. C.J..
RAMANATHAN. J. ANDWIJETUNGA. J.
S.C. APPEAL NO. 8/96.
C.A. NO. 452/75 (F).
DC. COLOMBO 2391/ED.
DECEMBER 17,1996 AND FEBRUARY 27, 1997.
Landlord and Tenant – Sub-letting of premises – Requirement of exclusiveoccupation of a part of the premises – Section 9 of the Rent Restriction Act -Section 10 of The Rent Act.
The plaintiff as Landlord sued his tenant the defendant for ejectment on theground that the latter had sub-let a portion of the premises in suit to the addeddefendant. The evidence led in support of the alleged sub-letting included theevidence of a Grama Sevaka who had issued a certificate that the addeddefendant and her daughter were resident at the premises in suit, a letter from thedefendant to the same effect, a writing signed by the added defendant that shewas a tenant of a part of the premises and house-holders lists. The evidenceshowed that all this material had been prepared to help the added defendantsdaughter to gain admission to a school. But the child failed to gain admission tothe school as the school authorities were not satisfied that neither the addeddefendant nor her daughter resided at the premises. The Grama Sevaka himselfdid not state in evidence that the added defendant in fact occupied a room.
Held:
The essential test in every case is whether there is evidence from which onecan infer that there is at least some part of the premises over which the tenanthas, by agreement, placed the sub-tenant in exclusive occupation. There is noevidence of exclusive occupation of a separate portion of the premises by theadded defendant.
Even though the requirement of exclusive occupation of the premises was notexpressly provided in section 9 of the Rent Restriction Act as in the case of sub-letting under section 10 of the Rent Act, exclusive occupation has to beestablished even in a case where the action is instituted in terms of the provisionsof section 9 of the Rent Restriction Act,
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Cases referred to:
Suppiah Pillai v. Muthukaruppan Pillai 54 N.L.R. 572.
Jayawardena v. Kandiah 71 N.L.R 380.
APPEAL trom judgment of the Court of Appeal.
Ft. K. W. Goonesekera with Aravinda R.l. Athurupana for the plaintiff-appellant.
Faiz Musthapha, P.C. with Sanjeewa Jayawardena for the substituted defendant-respondent.
Cur. adv. vuk.
May 2, 1997.
P. S. DE SILVA, C.J.
The plaintiff, as landlord, instituted these proceedings on 1stMarch 1971, seeking, inter alia, the ejectment of his tenant, theoriginal defendant, from the premises in suit. The ground of ejectmentrelied on was sub-letting a portion of the premises to the addeddefendant. After trial, the District Court held with the plaintiff and thedefendant preferred an appeal to the Court of Appeal. While theappeal was pending the original defendant died and his daughterwas substituted in his place. The appeal of the defendant wassuccessful and the Court of Appeal set aside the judgment of theDistrict Court and the plaintiff’s action was dismissed. Hence thepresent appeal to this court by the plaintiff.
The defendant in his answer denied the allegation of sub-lettingthe premises to the added defendant. By way of further answer thedefendant pleaded that the added defendant prior to her marriageresided in the premises which are situated next to the premises in suitand that after her marriage she went to Homagama to reside in herhusband’s house. On or about the 15th October 1970, the addeddefendant, who was well known to the defendant, came andrequested him “to state that she and her child resided at thedefendant’s house for the sole purpose of qualifying for admission toAnanda Balika Vidyalaya as the defendant's house is situated nearAnanda Balika Vidyalaya." (Paragraph 4 of the answer), The addeddefendant too in her answer denied the allegation of sub-letting. In
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paragraph 5 of her answer she specifically averred that she has notbeen at any time in constructive or physical occupation as tenant ofany portion of the premises in suit. She further pleaded that on orabout the "15th October 1970 she requested the defendant to stateto the Grama Sevaka that she resided at the defendant's house forthe sole purpose of qualifying her daughter for admission to theAnanda Balika Vidyalaya as the defendant's house is situated inclose proximity to the said Ananda Balika Vidyalaya."
It is not in dispute that the original defendant, now deceased, wasin occupation of the premises from 1942 and the plaintiff became theowner of the premises in or about 1966. The Court of Appealreversed the judgment of the District Court on the basis that (a) therewas no evidence to support the finding that the added defendantwho was alleged to be the sub-tenant resided at the premises, and
that in any event, there was no proof that the added defendantwas in exclusive occupation of a defined portion of the house.
The plaintiff's case rested on the evidence of Siriwardena, theplaintiff’s husband, Piyasena Alwis, the Grama Sevaka of the area,and in particular the documents marked P4, P5, P6, P7 and P8.According to Siriwardena, in 1970 he received information that thedefendant had sub-let the premises. However, he did not know towhom the premises had been sub-let; he had not visited thepremises to verify the informations received. He made a statement tothe Grama Sevaka on 6.10.70 (P1) stating that a portion of thepremises had been sub-let and requesting him to inquire into it.Subsequently, he had learnt from the Grama sevaka that “there wassomebody residing there" and that it was the added defendant. Hefurther testified that the Grama Sevaka told him that the defendantwas occupying "one room" and that it was "the 2nd room" which hethought may be the “store room.” The notice to quit (P2) was sent andin reply to P2 the defendant denied the allegation that he had sub-letthe premises (P3).
On a consideration of the evidence of Siriwardena it would appearthat he has merely stated what he learnt from the Grama Sevaka, andhis evidence does not in any way advance the case of the Plaintiff.
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The Grama Sevaka’s evidence was that he recorded the complaintof Siriwardena and that he went for inquiry. He further stated that theadded defendant who was anxious to admit her child to AnandaBalika Vidyalaya brought a letter from the defendant (P4). P4 is dated24.10.70 and is addressed to the Grama Sevaka; admittedly it waswritten and signed by the defendant. By P4 the defendant hadcertified that the added defendant and her daughter had beenresiding at the premises in suit for the last 5 years. According to theGrama Sevaka, he had visited the premises in suit earlier and issuedthe certificate of residence marked D1. It is to be noted that D1 andP4 bear the same date, namely 24.10.70. By D1 the Grama Sevakacertified that the added defendant and her daughter were resident inthe premises in suit. The house-holder's list number and the riceration book number have also been noted in D1. Admittedly, theadded defendant was not present when the Grama Sevaka visitedthe premises. However, according to the Grama Sevaka “the peoplein that house showed me the place where she resides and I gave hera certificate.1’ It is a matter of the utmost significance that in answer tocourt the Grama Sevaka further stated that he did not know how theadded defendant was residing there, whether she was a boarder ora tenant. He conceded that he had not made an entry in his officialdiary in regard to his claim that he visited the premises in suit. It isvery relevant to note that the Grama Sevaka's evidence was that theinmates of the house showed him the place where the addeddefendant resided. Nowhere in his evidence does he state that theadded defendant occupied a "room" as claimed by Siriwardena.
P4 apart, the other important document relied on by the plaintiff is P5.P5 which is dated 27.10.70 has been written by the Grama Sevakaand admittedly signed by the added defendant. The addeddefendant has stated in P5 that she is permanently residing with herdaughter at the premises in suit for the last one year and eightmonths, and what is more, she further stated that she pays a sum ofRs. 35/- as rent for her occupation. P5 could reasonably beconstrued as an admission of sub-tenancy. The added defendant inher evidence explained the circumstances in which she came to signP5. She was sent for by the Grama Sevaka on 27.10.70 and shereceived the message when she was at her work place, the General
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Hospital, Colombo. She then proceeded to the office of the GramaSevaka who had told her that the certificate of residence (D1) he hadgiven was not sufficient and that he wanted a writing from her. Shehad not brought her spectacles and the Grama Sevaka wrote thecontents of P5 and she signed it. It is difficult to understand the needfor P5 when the Grama Sevaka had three days earlier issued thecertificate of residence, D1. The cross-examination of the GramaSevaka in regard to the circumstances in which P5 came to bewritten throws grave doubt as to the bona tides of the conduct of theGrama Sevaka. The evidence reads thus:
Q. You issued this certificate on 24.10.70 (D1)?
A. Yes.
Q. You got this letter from the added defendant on 27.10.70 (P5)?
A. Yes.
Q. As far as you are concerned once a certificate of residence isgiven the matter is completed?
A. Yes.
Q. After the certificate was issued on 24.10.70 when didGunawathie (added defendant) come to see you?
A. No answer.
Q. I put it to you that after you issued this certificate, D1, theplaintiff came and saw you and thereafter you went in searchof Gunawathie (added defendant) and asked her to come andsee you?
A. Gunawathie did not come and see me.
Q. Can you give any reason why Gunawathie came to see youafter 24.10.70?
A. No answer.
On a consideration of the above evidence, it would appear that thecircumstances in which P5 came into existence lend support to thesuggestion made in cross-examination that P5 was obtained by theGrama Sevaka to advance the case of the plaintiff. The District Court
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has totally failed to address itself to the infirmities in P5. It seems tome that it is a document on which no court, acting reasonably, couldhave placed any reliance.
The plaintiff relied heavily on the document P4 referred to above.The defendant who gave P4 to the added defendant stated that itwas at the request of the added defendant that he gave the letter P4addressed to the Grama Sevaka and it was given purely to assist theadded defendant in getting her child admitted to Ananda BalikaVidyalaya which is about half a mile away from the premises in suit.His position clearly was that neither the added defendant nor herchild was ever in occupation of the premises, although he gave theletter P4. No doubt P4 constitutes an admission against thedefendant but it is not conclusive. The added defendant gaveevidence in support of the defendant. It seems to me that P4 has tobe considered in the light of the following important facts which arenot in dispute: (1) The plaintiff has not seen the added defendant inthe premises; (2) the Grama Sevaka has stated that the addeddefendant was not present at the premises at the time of his visit;(3) it is in evidence that the added defendant's daughter could notgain admission to the school for the reason that the JanathaCommittee which inspected the premises found that neither theadded defendant nor her daughter resided at the premises in suit.The District Judge has totally failed to consider these relevant itemsof a evidence in assessing the evidentiary value of P4.
P6, P7 and P8 are the other documents relied on by the plaintiff.They are the householder's lists for the years 1968, 1970, and 1971respectively. It is true that these lists have been signed by thedefendant and the names of the added defendant and her daughterhave been included as occupants of the premises. However, it is tobe noted that according to P6 the total number of persons inoccupation of the premises was no less than 17. On the other hand,according to the evidence of Siriwardena this was a small house andit was very unlikely that as many as 17 persons would have resided inthat house. P7 too contains the names of as many as 14 persons.These facts in my view lend credence to the evidence of thedefendant that he was trying to help parents who were seeking toadmit their children to schools in close proximity to his residence.
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The burden was clearly on the plaintiff to establish first, that theadded defendant was in occupation of a portion of the premises. Ona consideration of the entirety of the evidence, both oral anddocumentary, I am inclined to the view that the evidence on this pointwas weak and tenuous. In any event, the mere fact of occupation of aportion of the premises is quite insufficient to discharge the burdenthat lay on the plaintiff. There is the further essential requirementwhich the plaintiff must establish, namely that the added defendantwas in exclusive occupation of a portion of the premises. On thiscrucial aspect of the case there is no evidence. As stated earlier,nowhere in his evidence has the Grama Sevaka stated that theadded defendant occupied a room. And the District Court hascompletely overlooked the vital question of exclusive occupation.
Mr. R. K. W. Goonesekera, Counsel for the plaintiff-appellantsubmitted that "sub-letting under the Rent Restriction Act whichapplies to this case since the action was instituted in 1971 does notrequire exclusive occupation of a defined and separate part overwhich the landlord has relinquished his right of control. This conditionwas introduced only by the Rent Act section 10(1) when comparedwith the Rent Restriction Act, section 9". The provisions of section 9of the Rent Restriction Act directly arose for consideration byGratiaen J„ in Suppiah Pillai v. Muttukaruppa PMam. The case for theplaintiff's was that the 1 st defendant (the tenant) had in breach ofsection 9(1) of the Rent Restriction Act sub-let portions of thepremises to the 2nd and 3rd defendants. Dealing with the concept ofsub-letting postulated in section 9 Gratiaen J., expressed himself inthe following terms:
“There is nothing in the provisions of the Act from which one maylegitimately infer that the concept of “sub-letting" prohibited bysection 9 is different to that in which the term is properlyunderstood under the Roman Dutch Law which governstransactions of this kind in Ceylon. It is essential to the formation ofa contract of tenancy (or of sub-tenancy) that the “thing hired" iscapable of ascertainment as an identifiable entity occupied by thetenant (or sub-tenant as the case may be) to the exclusion not onlyof trespassers but of the landlord (or tenant) himself. As Wille putsit The parties must definitely agree upon the same property asbeing the subject matter of the contract and (in the case of awritten lease) the subject matter must be defined or described with
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a degree or precision which wilt enable it to be identified withoutrecourse to the evidence of the parties concerned, otherwise nolease is formed’ – Landlord and Tenant in South Africa (3rd Ed) p.24, It follows that no breach of section 9(1) of the Act is committedif a tenant, while himself remaining in occupation of the leasedpremises, merely permits someone else to share their use andenjoyment with him … “ I agree with Mr. Choksy that a valid sub-letting can effectively take place without any structuraldemarcation of the portion sub-let from the rest of the premises;but the essential test in every case is whether there is evidencefrom which one can infer that there is at least some part of thepremises over which the tenant has, by agreement, placed thesub-tenant in exclusive occupation. No such evidence is to befound in the present case, and the plaintiffs have not establishedthat, since the date of his agreement with the 2nd and 3rddefendants, the 1st defendant, qua tenant, ceased to occupy or toexercise his general control over, any portion of the premises”.
The same view was taken by H. N. G. Fernando, C.J., inJayawardena v. Kandiatt2'. I therefore find myself unable to agreewith the contention of Mr. Goonesekera that section 9 of the RentRestriction Act does not require proof of exclusive occupation of aseparate portion of the premises.
Since there is no evidence in the case before us of “exclusiveoccupation" of a separate portion of the premises by the addeddefendant, I am of the opinion that the Court of Appeal was justifiedin setting aside the judgment of the District Court and dismissing theplaintiff’s action.
For these reasons, the appeal fails and is dismissed, but in all thecircumstances without costs. I would also direct that the order forcosts made against the plaintiff in the judgment of the Court ofAppeal be deleted.
RAMANATHAN, J. – I agree
WIJETUNGA, J. -1 agree.
Appeal dismissed.