032-SLLR-SLLR-2002-V-2-WEERSINGHAM-AND-ANOTHER-v.-DE-SILVA.pdf
CA
Weerasingham and Another v. De Silva
233
WEERASINGHAM AND ANOTHER
v.DE SILVA
COURT OF APPEALWEERASURIYA, J. ANDDISSANAYAKE, J.
CA NO. 614/93 (F)
DC MT. LAVINIA NO. 2652/REAPRIL 27. 2000MAY 26, 2000 ANDJUNE 21. 2000
Rent Act – s. 28 – Non-occupation for more than 6 months – Abandonment -Mental element? – Cause of action – Whether premises is residential premises?- Not pleaded – Nunc pro tunc.
It was contended by the defendant-appellant that the District Court had misdirecteditself in holding that the defendant-appellant had ceased to occupy the premiseswithout reasonable cause for a continuous period of not less than 6 months withinthe meaning of s. 28 and further that the plaint did not disclose a cause of actionin that there is no averment that the premises are residential premises.
Held:
The plaint failed to mention that the premises were residential premiseswhich is a necessary element to claim ejectment on the ground of non-occupation by the tenant within the meaning of s. 28 (1). The journal entriesof the case do not disclose that either before or after acceptance of theplaint the defendant-appellant made any endeavour to call the attentionof the Court of this lapse. Thus, the principle of nunc pro tunc has noapplication to the facts of this case.
The defendant-appellant without resorting to call the attention of Court tothe purported 'defect' proceeded to 'legitimize' the plaint by admitting thatpremises in suit were 'residential premises'. Therefore, whatever defectsthe plaint contained, was rectified by the defendant himself.
Temporary absence of a tenant who intends to return to live in the premiseswithin a reasonable period will not deprive him of the protection of the
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Rent Act. However, where a house is kept closed or unoccupied by thetenant in circumstances from which an inference could be drawn that tenantdoes not intend to occupy any longer – be it exclusively occupied bystrangers or by business employees, tenant cannot avert eviction.
The indefinite period within which defendant-appellants in the instant casehad been away from the premises coupled with his admission that hisintention was to have his children educated in a foreign country wouldestablish that his staying away from the premises was not founded onreasonable cause.
The common law concept of abandonment of tenancy has no applicationto an action instituted in terms of s. 28.
APPEAL from the judgment of the District Court of Mt. Lavinia.
Cases referred to :
Reid v. Samsudeen – 1 NLR 292.
Soyza v. Soyza – 17 NLR 118.
Aw a Umma v. Cassindar – 24 NLR 199.
Jinadasa v. Peiris – 1988 2 SLR 417.
Brown v. Brash – 1948 1 ALL ER 922.
Sabapathy v. Kularatne – 52 NLR 425.
Amarasekera v. Gunapala – 72 NLR 469.
Fonseka v. Gulamhussain – 1981 1 SLR 77.
Wijewardena v. Dixon – 77 NLR 157.
Romesh de Silva, PC with Ms. S. Samarasekera for defendant-appellant.
M. R. de Silva for plaintiff-respondent.
Cur. adv. vult.
September 15, 2000
WEERASURIYA, J.
The plaintiff-respondent by plaint dated 04. 06. 1987, instituted actionagainst the defendant-appellants, seeking ejectment of the defendant-appellants from the premises described in the schedule to the plaintand damages.
CA
Weeraslngham and Another v. De Silva (Weerasuriya, J.)
235
The defendant-appellants in their answer whilst denying avermentsin the plaint prayed for dismissal of the action. This case proceededto trial on 10 issues and at the conclusion of the case, learned DistrictJudge by his judgment dated 19. 08. 1993, entered judgment for theplaintiff-respondent. It is from the aforesaid judgment that thisappeal has been preferred.
At the hearing of this appeal, learned President's Counsel for the 10defendant-appellants contended that learned District Judge hasmisdirected himself in holding that the defendant-appellant hadceased to occupy the premises without reasonable cause for acontinuous period of not less than 6 months within the meaning ofsection 28 of the Rent Act. This contention of the learned President'sCounsel was based on the following grounds:
that in common law, abandonment of premises necessarilyentails a mental element; and
that the plaint does not disclose a cause of action in that there
is no averment that the premises are residential premises. 20
The contention that the plaint does not disclose a cause of actionwas solely based on the premise that the plaint failed to mention thatthe premises were residential premises. It is to be noted that inparagraph 3 of the plaint, there is an averment that the defendant-appellant had ceased to occupy the premises bearing No. 28 for aperiod of not less than 6 months in terms of section 28 (1) of theRent Act. Therefore, there is notice of the invocation of section 28 (1)as a ground of ejectment in this action. However, it is to be observedthat there is no explicit reference to the fact that premises in questionwere residential premises. It is correct to state this being one of the 30ingredients of the ground upon which ejectment is sought that it isvital to aver that the premises in suit are residential premises. However,it is significant that before the commencement of the trial an admissionwas recorded that the premises in question were residential premises.
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Therefore, there was no need to have a specific issue framed fora finding on this matter as the parties seem to have agreed that thepremises in question were residential premises.
Learned President's Counsel sought to argue that despite theadmission that the premises were residential premises, learned DistrictJudge before issuing summons ought to have either dismissed the 40action or in the alternative before summons being ordered, upon hisattention being drawn to it, either reject it or return it for amendment.
He cited the following cases in support of this proposition:
Reid v. Samsudeen.0)
12)
Soyza v. Soyza.
Aw a Umma v. Cassindar.(3)
In Reid v. Samsudeen (supra) at 295 it was observed that if theplaint is defective in some material points and that appears on theface of the plaint, but by some oversight the Court has omitted tonotice the defect, then the defendant on discovering the defect may soproperly call the attention of the Court to the point and then it willbe the duty of the Court to act as it ought to have done in the firstinstance either to reject the plaint or return it to the plaintiff foramendment. If the plaint is a good one on the face of it but thedefendant has reason to urge why the plaintiff is not entitled to suehim that objections must be taken by the answer.
In Soyza v. Soyza (supra) it was held that if on the footing ofthe averments in a plaint the claim made therein is clearly prescribed,the claim is liable to be dismissed without evidence being gone intoor consideration of the averments in the answer.60
CA
Weerasingham and Another v. De Silva (Weerasuriya, J.)
237
In Awa Umma v. Cassindar (supra) it was held that where theplaint did not allege anything on the face of it, which gave it jurisdictionand the Court may by an oversight omitted to notice the defect andaccepted the plaint and where the attention of the Court is called tothe point by the defendant, that the Court ought either to reject theplaint or to return it to the plaintiff for amendment.
The principle which emerges from the decisions of Reid v.Samsudeen and Awa Umma v. Cassindar is that if the plaint isdefective ex facie and the Court by an oversight omitted to noticethe defect and accepted the plaint, once the defendant drew the ?oattention of the Court to the point, the Court ought either reject itor return it for amendment. This proposition is based on the principleof nunc pro tunc (now for then) which would apply where there issomething ex facie defective in the plaint which necessitates itsrejection, but due to an oversight it has not been rejected.
In the instant case, the plaint failed to mention that the premisesin suit were residential premises which obviously is a necessaryelement to claim ejectment on the ground of non-occupation by thetenant within the meaning of section 28 (1) of the Rent Act. The journalentries of the case do not disclose that either before or after acceptance soof the plaint, the defendant-appellant made any endeavour to call theattention of the Court of this lapse. Thus, the principle of nunc protunc has no application to the facts of this case. What is mostsignificant is the fact that the defendant-appellant without resorting tocall the attention of Court to the purported 'defect', proceeded to'legitimize' the plaint by admitting that premises in suit were 'residentialpremises'. Therefore, whatever defects the plaint contained, was rectifiedby the defendant-appellant himself. In the circumstances, the principlesenunciated in the cases of Reid v. Samsudeen and Awa Umma v.Cassindar have no bearing to the facts of this case.90
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The case of Soyza v. Soyza (supra) stands on a different footingin that the claim set forth in the plaint appeared to be prescribed.
Section 46 (2) of the Civil Procedure Code enacts that when aplaint is presented if the action appears from the statement of theplaint to be barred by any positive rule of law, the Court should rejectthe plaint. Therefore, the facts in Soyza v. Soyza (supra) are clearlydistinguishable from the facts of this case which did not offend anypositive rule of law preventing its acceptance.
Learned President's Counsel for the defendant-appellants submittedthat in terms of section 28 of the Rent Act non-occupation of thepremises for a period of not less than 6 months would entail the mentalelement namely, whether it was intended to be permanent.
Megarry in ‘The Rent Acts? (vol. 1, page 245) under the subheadTemporary Absence, has stated that temporary absence of a tenantwho intends to return to live in the premises within a reasonable periodwill not deprive him of the protection of the Rent Acts. He had citedthe following examples : The case of a tenant who may get absentdue to war; or ship captain at sea; absence due to illness or forreasons of either business or pleasure even for few months with theintention to return.
In the case of Jinadasa v. Peiris it was held under section28 (1) of the Rent Act a tenant can be absent from premises letto him for 6 months with or without cause but if he is away for alonger period he must give an explanation which will amount toreasonable cause. Where without the landlord's consent the tenantkeeps his dependents in the premises for longer than six months,without any intention to occupy them himself he is liable to betreated as non-occupying tenant and evicted.
CA
Weerasingham and Another v. De Silva (Weerasuriya, J.)239
In the English case Brown v. Brash® the concept of a non-occupying tenant was explained in the following manner: "The absence 120of the tenant from the premises may be averted if he coupled andclothed his intention to use it as his home with some formal, outwardand visual sign such as installing a caretaker or representative, beit relation or not with the status of a licensee and with the functionof preserving those premises for his ultimate home-coming".
The principles enunciated in Brown v. Brash (supra) was appliedin Sabapathy v. Kularatna;(6) Amarasekera v. Gunapala(7> and Fonsekav. Gulamhussain.(8) Nevertheless, in Wijewardena v. Dixon® decidedin 1974, the concept of non-occupying tenant enunciated in Brownv. Brash {supra) was not applied.130
The principles emerging on a survey of the above cases, wouldbe that where a house is kept closed or unoccupied by the tenantin circumstances from which an inference could be drawn that tenantdoes not intend to occupy any longer be it exclusively occupied bystrangers or by business employees, cannot avert eviction.
In the instant case the defendant enumerated the followingreasons for non-occupation:
That in 1984 he left the premises due to communal riots.
That he left the country for education of his children.
He conceded that the communal riots were in 1983 and that his 140children had some trouble which he chose not to elaborate. Therewas no evidence to suggest that the trouble that he described wassuch a magnitude sufficient to compel him to leave the premises.Therefore, it would be apparent that during the period whencommunal riots existed he was unscathed and occupied thepremises throughout this period till April, 1984.
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In the circumstances, one cannot attribute his leaving the premisessolely due to the existence of communal riots in 1983. In this regardit is significant to note that his brother and his family had lived inthe premises during his absence which would mean that they never ’sofaced difficulties in staying in the premises despite the existence ofthe situation which as alleged by the defendant-appellant led to hisdeparture from the Island. There was no material placed as to thereason why his children were taken out of the country when it wasevident that even his youngest child was 19 years of age. Thiswould be a situation where he had chosen that education of childrenin a foreign country would better their prospects for employment.Therefore, the decision to give them education in Australia was entirelyhis choice unhampered by the situation that prevailed in the country.
In the circumstances, question to be resolved is whether the 160defendant had reasonable cause for non-occupation. The first reasonnamely, the inability to live in Sri Lanka was contradicted by the factthat his brother remained in the premises during his absence. Therewas no material to suggest that their lives were in danger at any timeor there was an imminent threat to their properties necessitating themto be away from the premises even for a short period.
The contention of learned President's Counsel that Court has toconsider whether there was an abandonment of tenancy has norelevance. The common law concept of abandonment of tenancy hasno application to an action constituted in terms of section 28 of the 170Rent Act.
The reasonable cause contemplated in this section would be,among others, such as the house being under major repairs or thetenant has been on vacation or business which would take him outof the area. He can be absent with or without cause for this periodbut if he is away for longer period he is bound to give an explanationthat is acceptable, (vide Jinadasa v. Peiris (supra) at 421.
CA
Weerasingham and Another v. De Silva (Weerasuriya, J.)
241
The evidence in this case would reveal that the tenant intendedto be away indefinitely and that he was uncertain whether his childrenwould return after their foreign education. The rationale behind the 180requirement to adduce reasonable cause for non-occupation for acontinuous period of not less than six months is to give relief to thetenants who for genuine reasons are compelled to be away from thepremises. The indefinite period within which defendant-appellant in theinstant case had been away from the premises coupled with hisadmission that his intention was to have his children educated in aforeign country despite the fact that his youngest child was 19 yearsof age would establish that his staying away from the premises wasnot founded on reasonable cause.
For the above reasons, it seems to me that there is no basis to 190interfere with the findings of the District Judge. Therefore, I proceedto dismiss this appeal with costs.
DISSANAYAKE, J. – I agree.
Appeal dismissed.