133-NLR-NLR-V-57-D.-F.-ABEYEWARDENA-Appellant-and-REV.-SIRI-NIVASA-et-al-Respondents.pdf
1956P>c.?<■))/ : Pulle, J., anti Sansoni, J.1). F. ABEYEWARDEN’A, Appellant, andJ1KV. SIR! XIVASA cl ah, Respondents.
X. C. 301—P. C. -JIa/ara, 22,666 fM
Delict—Landlord and tenant — Wrongful dispossession of tenant by landlord—Injuria—
Landlord's liability to pay damages.
A landlord is not entitled to take possession of the rented premise.* unless thotenant has vacated them or surrendered possession of them. The fact, that thetenant agreed to quit the- premises is not. material if tho landlord knows that, inspite of tho agreement, the tenant intends to remain in occupation of tin-premises.
Wrongful dispossession of tho tenant hv the landlord constitutes an injuriainvolving coittamelia.
A PPEAR from a judgment of the District Court, VTatara.
Sir Lalila Tiajapalne, Q.C., with T. Ji. Dissanttyakc, for the plaintiffappellant.
-V. jE. Weernsuria, Q.C., with It L. S. Jayaxckrrtt, for the 1st defendantrespondent.
M.L. S. Jaya.tekera, for the 2nd defendant respondent.
Cur. rttlv. ruU.
May 10, 1956. Saxsoxr, J.—. –
The plaintiff in. this action was carrying on the business of a ForwardingAgent at premises Nos. 1011 and 1012, Kadevidiya, Matara. He was atenant of those premises, first- under one Wick rein esinghe and later under4he second defendant-. He had admittedly been paying rent to thesecond defendant, and it is not- in dispute that he was in occupation ofthe premises on 31st March, 1951. The first- defendant is a Buddhistpriest and the Principal of a Pirivena which stands on the adjoiningpremises. The second defendant, ns one of the chief Dayakayas of thePirivena, purchased Nos. 1011 and 10I2in trust for the Pirivena in August1949. The plaintiff, had also been residing in tlie premises in questionbut lie ceased to reside there from eail3' March, 1951. He claimed that-he continued in occupation of (lie premises for the purposes of his business.
This action was filed in January, 1952 against- botli defendants on fivec-auses of action. On the first causeofaction, theplaintiff complained thaton or about- 1st April, 1951, while he was still a tenant and in occupationof the premises, the defendants entered the premises and unlawfullydispossessed him. He estimated his damages at Ps. 2,400 on this causeof action. On the second cause of action, he complained that thedefendants after such entry removed and converted to their use motoraccessories and spare parts belonging to him worth Ps. 5,000 ; he claimedthis sum and a further sum of Ps. 1,000 as consequential damages. Onthe third cause of action, he complained that the defendants converted totheir own use the engine and other valuable parts of a lorry No. CE 576belonging to him, which was in the said premises ; on this cause of actionhe claimed the return of the lorry or its value, Its. 15,000, and damages atthe rate of Rs. 500 per mensem from 1st April, 1951. It is not necessaryto refer to the other two causes of action because the matters arisingunder them were adjusted at t he beginning of the trial.
The defendants filed separate answers, but their common defence wasthat they took possession of the premises on behalf of the Pirivena on1st April, 1951, on the expiration of the plaintiff’s tenancy and after theplaintiff had vacated these premises. They further stated in theiranswers that when the plaintiff vacated the premises lie failed to removelorry No. CE 576, although he was requested to do so ; and they deniedthat any damages were payable by them. The first- defendant claimedin reconvcntion a sum of Rs. 15,000 as damages sustained by him byreason of the plaintiff having initiated a false and malicious prosecutionagainst him in Case No. 22995 of the Magistrate’s Court of Matara.
After trial, the learned District Judge dismissed the plaintiff's actionsave in respect of a sum of Ps. 67 ’50. This amount had been broughtinto Court by the defendants on the fifth cause of .action, and the jiarticshad agreed that it should be drawn out of Court by the plaintiff. Thefirst defendant’s claim in reconvcntion was also dismissed and the plaintiffwas ordered to pay the defendants half their costs. The learned Judgetook the view that the defendants lawfully took possession of the pre-mises on 1st April, 1951, on the termination of the plaintiff’s tenancy.
He appears to have taken the view that the plaintiff had agreed to quitthe premises on 31st March, 1951. He does not, however, find that theplaintiff had vacated .the premises or surrendered possession of themin any way to the defendants.
On the evidence placed before him I do not see how the learned Judgecould have held in favour of the defendants on the first cause of action.It has been proved that on 1st April, 1951, one Wijenaike, a retiredPostmaster who had also been associated with the plaintiff in businesspreviously, went to the premises to have them cleaned:He was there
till 1 p.m. supervising the cleaning, which was not completed. He thenlocked the doors of the building and went home to lunch, taking the doorkeys with him. About an hour later, on receiving certain information,Wijenaike went near those premises. He found the main gate locked,although he had not locked that gate when he left the premises at I p.m.He saw several priests on the verandah and two lorries belonging to theplaintiff in the garage. He went to the Police Station and complainedto the Police at 3.15 p.m. The plaintiff had gone to Den iy ay a that- day.On his return that night Wijenaike informed him of what had happened,and both of them went to the Headman of Kadevidiya and the plaintiffcomplained to him.
Jvow, it is not disputed that the second defendant took possession ofthese premises on 1st April, 1951, through his nephew Dhannasena whowent into occupation on that day. The fiz-st defendant admits thatpossession was taken on his own behalf also. Both defendants are thereforejointly liable for the entry. As I said earlier, they sought to justify theiraction in going into possession on the ground that the plaintiff hadearlier agreed to quit the premises on 1st April, 1951, but such agreement-,even if proved, doss not justify their action. The learned judge seemsto have been greatly influenced by the view he took that Wijenaike hadcleaned these premises on behalf of the plaintiff for the benefit of thedefendants. I think the opposite conclusion may as easily have beendrawn from the fact that the defendants were admittedly anxious tomove into these premises for the purpose of extending the Pirivena.With great respect, I am unable to take the same view as the learnedjudge. Is it of no significance that there were two lorries belonging to theplaintiff standing in the garage at the time the defendants took possession,one of these lorries being fully laden with vegetables which were to betransported to Colombo ? Surely this circumstance must have satisfiedany reasonable person that the plaintiff had not taken the necessary stepsto give up possession, and had no intention of doing so on that day. Thekeys of the building were not surrendered cither, nor does any requestappear to have been made for them. The invasion seems to have beenwell-timed to coincide with Wijenaike’s temporary absence from thepremises. I would therefore reverse the finding of the learned judgein regard to the first cause of the action and hold that the defendantsunlawfully dispossessed the plaintiff of these premises. '
As to the damages which the plaintiff should be awarded on this causeof action, he has not proved that he suffered special damages Under
cross-examination on this point he stated that he was claiming Rs. 2,400as damages for the discontinuance of his business, on the basis of theprevious year’s income from his lorry Ko. CE 576 which did not ply on theroad after 1st April, 1051. Here the plaintiff seems to have been mixingup his claim on the first cause of action with his claim on the third causeof action, for the latter deals with the loss he incurred by having beendeprived of the use of lorry No. CE 576. At the same time, there is nodoubt that the plaintiff has suffered a wrong because he was illegallydispossessed of these premises by the defendants ; he is entitled to somedamages on that account. The wrongful dispossession of the plaintiffby the defendants constituted an injuria involving coniumelia, for I amsatisfied that the defendants well knew that the plaintiff intended toremain in occupation of these premises, in spite of an alleged agreementto quit by 1st April, 1951. I would award the plaintiff a sum ofRs. 1,000.
On the second cause of action the plaintiff claimed the value of motoraccessories and spare parts according to amounts which he said wereentered in his account books. It was suggested to him, for the defence,that all accessories, spare parts and account books had been removedby him previously to other premises where he has already residing. Heinsisted, however, that all his account books were still on the premisesin dispute on 1st April, 1951. If that were so, it is strange that when he.made his complaint to the Headman he made no reference whatever tothese books. The learned judge points out in his judgment that in theMagistrate’s Court too the plaintiff made no reference to his books ofaccount, and the first reference ever made to them was on 5th June, 1953,when a notice was sent to the defendants to produce the books at thetrial of this action.
After a consideration of the evidence I find it clearly proved that thedefendants were alwaj-s willing, from the time they went into occupationof these premises, to allow the plaintiff to remove all articles belonging tohim of whatever nature. The Headman made this quite plain in hisevidence, for he said that when he spoke to the second defendant’s nephew,Dharmascna, and asked that the lorries be released, Dliarmasena wasquite willing that they should be removed. He added that Dliarmasena■was prepared to allow the plaintiff to remove any goods that were inthe garage. Although the lorry laden with goods was removed, the otherlorry CE 576 was not. The Headman stated that he waited for somebodyto come and remove that other lorry but nobody came for that purpose.The plaintiff suggested in evidence that lorry CE 576 could not be removedbecause the tyres had been taken off the wheels, but he did not claim tohave seen that himself; he was speaking to some information which hisdriver is alleged to have conveyed to him, but that driver has not beencalled as a witness. He later added that it was only on 4th April, 1951,that he was informed that the tyres had been removed, and that untilthen he had not sent anybody to remove that lorry. It seems obviousthat the claim made in regard to the spare parts and accessories is onas shaky a foundation as the claim in regard to the lorry CE 576.
The learned judge rejected the claim on the second and third causes ofaction because he was not satisfied that the defendants had convertedeither the lorry or the spare parts and accessories to their own use. Ithink the plaintiff has entirely failed to prove that the spare parts andaccessories described in the schedule to the plaint were on these premises,and it also seems to me that, for reasons best known to himself, theplaintiff deliberately chose not to remove lorry CE 576, although hehad every opportunity to do so.
In the result the plaintiff has failed on the major part of his claim.This action was brought to recover a total sum of Rs. 29,967-50 andcontinuing damages at Rs. 500 a month. The plaintiff has succeededto the extent of only a sum of Rs. 1,000 and I therefore think that theorder of the learnedjudge as to costs in the lowerCourt should stand. Iwould vary the decree under appeal and give judgment for the plaintiffin the sum of Rs. 1,000 plus Rs. 67*50, totalling Rs. 1,067-50, but theplaintiff will pay the defendants half their costs in the District Court.Each party will bear his own costs in this Court.
Poxle, <J.—I agree.
Decree varied.