D. S. MADANAYAKE, Appellant, and M. D. R. SENANRATNE, Respondents

065-NLR-NLR-V-75-D.-S.-MADANAYAKE-Appellant-and-M.-D.-R.-SENANRATNE-Respondents.pdf


DE KRETSER, J.—Madanayake v. Senaratne
340
1971Present: de Kretser, J.S. MADANAYAKE, Appellant, andM. D. R. SENARATNE, RespondentS. C. 100/69—C. It. Colombo, 93443
Lease of bare lard—Provision that lessee can. put up temporary buildings thereon—Whether Rtnt Restriction Act is applicable to the lease—Res judinnta—Evidencerelating to it.
Where the lease of a bare land which provides for monthly payment ofground rent contains a condition enabling the lessee to put up, with the approvalof the lessor, buildings and structures of a temporary nature which the lesseewould be ontitlcd to remove at any time, the provisions of the Rent RestrictionAct are not applicable to such contract of letting.
"Where, in relation to an issue of res judicata, the plaint and answer of aprevious action are tendered as documents, the entire Record of that actionshould not be placed among the documents.
Appeal from a judgment of the Court of Requests, Colombo.
C. Ranganathan, Q.C., with B. A. R. Candappa, for the plaintiff-appellant.
H. W. Jayewardene, Q.C., with S. 8. Basnayake, for the defendant-respondent.
Cur. adv. wit.
Octobers, 1971. de Kjbetseb, J.—
On P.l. indenture of.lease No. 1707 of 12.5.61 Plaintiff leased to theDefendant' for a period of 3 years the bare land bearing AssessmentNo. 386, Skinner’s Road North described in the Schedule to P.l for amonthly Rental of Rs. 205/-..
350
DE KRETSER, J.—Madanayake v. Senoratne
The lease provided inter alia for the Lessee to Greet buildings andstructures of a temporary nature with the approval of the Plaintiffwhich at the termination of the lease, the Lessee would be entitled toremove at his expense.
The Defendant who was carrying on the business of running a TimberMill put up buildings on this land the Plans for which had been approvedby the Plaintiff. Some indication of their value is that the Municipalityassessed the premises thereafter and on that basis a rental of Rs. 495/-a month could have been charged. The Defendant did not give uppossession when the lease terminated on 14.5.64 and his version thathe did not do so as he had become their lawful tenant by an agreementbetween the Plaintiff and himself was vindicated when on the 29thJanuary 1965 Plantiff instituted D. C. 335 R.E. Colombo seeking tohave him ejected on tho footing that he was liable to hand over posses-sion to Plaintiff on the termination of the lease on 14.5.64 and had failedto do so. Tho Plaint and Answer in the Case are produced as P. 2.It is common ground that Plaintiff’s action was dismissed with costs.The Plaintiff did not appeal from that Order.
On the footing that Plaintiff had let the bare land to Defendant,Plaintiff on tho 23rd January 1966 by P. 3 gave Defendant notice toquit and deliver VuiCuiIlt possession on or before tho 14th of March, 1966.The Defendant did not do so and Plaintiff then Sled the present action.The Defendant filed answer claiming that he was the tenant of Premises386 and claiming the protection of the Rent Restriction Act.
The following are the issues framed at the trial and the answers tothem :—
(1) Is tho defendant a tenant of the bare land described in the scheduleto tho plaint under the plaintiff as from 15th May 1964, on amonthly rental of Rs. 205/- ?
Answer — No.
;(2) Did tho plaintiff on or about 23.1.66 give notice to the defendant toquit and deliver vacant possession of the said land on or beforetho 14th March 1966 1
Answer —Yes.
If issues 1 and 2, or issue (1) alone is answered in the affirmativeis the plaintiff entitled to maintain this action for ejectment againsttho defendant ?
Answer — No.
What amount is duo to the plaintiff as arrears of rent and damages ?
Answer — Docs not ariso but it has boen admitted that damageshad been paid up to 15th April 1966 at Rs. 205/- a month.
DE KRETSER, J.—Madanayake v. Senaralne-
851
Has the defendant been a tenant of premises bearing No. 386,Skinner’s Road North, at all times material to this action ?
Answer — Yes.
Is the judgment and tho deereo in case No. 355 R. E. of D. C.Colombo res judicata on the question of the defendant’s tenancyof tho said premises 1
Answer — Yes.
Are tho said premises governed by tho Rent Restriction Act aaamended by Act No. 12 of 1966 ?
Answer — Yes.
Does the notice mentioned in issue (2) in any event terminate thetenancy of the defendant under the plaintiff ?
Answer — Yes.
If issues 5, 6, 7 and 8 or any one of them or all of them be answeredin favour of the defendant, can the plaintiff have and maintainthis action ?
Answer — No.
The Trial Judge dismissed Plaintiff’s action and the present Appealis from that Order.
It is' I think necessary for the proper determination of the dispute inthis case to remember that from th» of May 1964 all that Plaintiffcould have let to Defendant on a monthly basis was tho bare land hehad already let to him on the Lease P. 1. for the buildings, to which atno stage Plaintiff laid claim, belonged to Defendant and ho could takethem away. If Defendant persuaded Plaintiff, and for this purposethe evidence is that ho employed the services of a Mr. S. D. S. Jayasingke,to lot to him Defendant would naturally postpone the talcing away oftho buildings he had put up and would continue to use them.
So that the result of Defendant obtaining a fresh agreement would bethat he would enjoy tho land and the building, but that result mustnot load to confusion that the actual agreement entered into was a lettingof the land as well as the building. In view of the decision in D.C. 335Colombo my Order proceeds on tho basis that there wsb in fact a freshagreement entered into although on the evidenco there appears muchto point to tho fact there was not for o.g. the Defendant says “ after thetermination of the leaso I was not prepared to give more, as it was Iwho put up tho buildings and I continued in occupation paying Rs. 205/-a month.” It is Plaintiff’s evidence that when the lease was at an endho was willing to let Defendant continue in the premises as his tenantbut that while there were negotiations there was no agreement as regardsthe Rent.
352
DE KRETSER, J.—Madanayake v. SenaraJne
It is probably because Plaintiff realised that if he let to Defendant onthe monthly basis the Defendant was seeking to obtain that Defendantwould have the use of a premises which according to the Assessmentcould command a rental of Rs. 495/- a month that Plaintiff sought tohave an enhanced rental. Be that as it may it had been held in D. C. 335that Defendant had been given a fresh agreement and Plaintiff had notonly not appealed from that Order but had also sent P. 5 on the footingof that Order.
The Trial Judge correctly says that the question for decision is whatwas the subject matter of the tenancy on 15.5.64 and in coming to theconclusion that it was the premises (that is house and building) bearingAssessment No. 386 he has laid great stress on what Plaintiff sot outin D. 1 an application to the Rent Control Board for a determinationof the Rent. I t appears to me that he has lost sight of the fact that thatapplication was not proceeded with when Defendant took up the positionthat all that was let to him was the bare land.
In considering the matter he has completely ignored Defendant’sevidence in this Case “ my position is that the buildings belonged tomo and I am a tenant of the bare land.” There is also the fact thatright throughout the Rent of Rs. 205/- per month has been tenderedas ground rent and received as such.
In my opinion therefore Issue No. 1 should have been answered in theaffirmative. The Trial Judge has' also held that the judgment anddecree in Case No. 335 D. C. Colombo is res judicata, on the question ofthe Defendant’s tenancy of the said premises. If by that lie meantthat the decision in D. C. 335 settled the controversy whether or notthere was a tenancy agreement entered into when the lease P. 1 expiredit would be impossible to say that he was wrong, but if as his judgmentappears to indicate he was of the view that it concluded tho questionas to what the tenancy agreement was in respect of I do not find it possibleto uphold his finding. In the absence of the production of the Issuesframed in the Case the Judgment and Decree I find it difficult to under-stand how the Trial Judge could say “ the matters in issue in that case^ being the same as matters in issue in the present Case I hold the Judgmentand Decree of the District Court Case is res adjudicata.” While I amon this point I wisn to say that I find among the productions tho entireRecord in D. C. 335 (Certified copy). That is something which Proctor fortho Plaintiff should not have tendored as only the Plaint and Answerwere productions. It has led to confusion and also unnecessary expensein the preparing of the brief. This is not the first time that I find whathas not been produced being placed among the docu ments. I hopethat it will not happen again, now that I have drawn attention to thematter.
The Trial Judge has answered Issue No. 7 “ Are the said premisesgoverned by the Rent Restriction Act as amended by Act 12 of 1966 ” inthe Affirmative. That would b6 the correct answer to tho issue if the
Puakpawathy v. San<h irasagarampilta*
35a
facts established that the Plaintiff had let to tho Defendant the buildingsand tho land appurtenant to them (which would bo tho premises for thepurposes of tho Rent Restriction Act) for the ovidcnco establishes that thoMunicipality had assessed the premises and they could command a Rentalof Rs. 495 a month. It .appears to mo that tho more correct issue to hovebeen formulated in tho instant Case would bo whether the Defendantcould claim tho protection of tho Rent Restriction Act. It appears tome that once the factual situation was clarified viz. that Plaintiff couldonly let and did in fact only lot tho bare land the provisions of tho RentRestriction Act had no application to the lotting for it has been repeatedlyheld that that Act has no application to the letting of bare land. Thofact that the Defendant had put up temporary buildings which ho couldremove at any timo pleasing to him, on the land he had taken on rent andmade uso of them, in my view makes no difference on the questionwhethor the Act applies or not.
In the instant Case there is oompleto agreement between Plaintiff andDefendant that what Plaintiff let to Defendant was bare land and thatthe buildings were those put up by the Defendant which ho was entitledto remove at any timo.
The Appeal is allowed. The judgment and order of the learnedCommissioner is sot aside and decree will be entered giving judgment forPlaintiff as prayed for by tho Plaintiff in his Plaint.
Appeal allowed.