085-NLR-NLR-V-55-K.-P.-M.-SURIYA-Appellant-and-BOARD-OF-TRUSTEES-OF-MARADANA-MOSQUE-Responde.pdf
Suriya v. Board oj Trustees of Maradona Mosque
30 9
1954
Present: Gratiaen J.K. P. M. SURIYA, Appellant, and BOARD OP TRUSTEES OPMAR AD AN A MOSQUE, Respondent
S. C. 144—0. R. Colombo, 36,196 RjE
Rent Restriction Act, No. 29 of 1948—“Non-occupying tenant”—Meaning ofexpression—Forfeiture of statutory protection.
The theory of forfeiture of the rights of a “ statutory tenant ” by “ non-occu-pation ” is not applicable in a case where the tenant has lawfully sub-let thepremises without violating either the terms of his contract of tenancy or theprovisions of any statute.
Sabapalhy v. Kularatne (1951) 52 N. L. R. 425, explained.
^^.PPEAL from a judgment of the Court of Requests, Colombo.
H. W. Jayewardene, with D. R. P. Goonetilleke,' for the defendantappellant.
M. H. A. Aziz, for the plaintiff respondent.
Cur. adv. vult.
{1900) 1 K. B. 803.
{1936) 37 N. L. R. 439 ; 6 C. L. W. 1.
310
GRATIAEN J.—Swriya v. Board of Trustees of Maradona Mosque
Jebniaiy 9, 1954. Gratiaeu J.—
In this case the plaintiff (-which is an incorporated Board of Trustees)sued its tenant the defendant, after due notice* to have-him ejectedfrom certain premise's in Maradana. The premises are protected by theprovisions of the Bent Bestriction Act, No. 29 of 1948. At the trial,the plaintiff’s claim was based only on two allegations—(1) that thedefendant had sub-let the premises to A. J. M. Juffer in breach of section9 (1) of the Act, and (2) that she was a “ non-occupying tenant ” andhad therefore forfeited her status as a statutory tenant entitled to theprotection of the Act.
On the first ground, the learned Commissioner held in favour of thedefendant. The evidence established that the sub-tenancy complainedof had been created before the prohibition contained in section 9 (1)of the Act passed into law. In the result, the lawful exercise by thetenant of her common law right to sub-let the premises did not giverise to a cause of action for ejectment.
Mr. Aziz argued, on the second ground, that the judgment underappeal is supported by certain observations I had made in Sabapathy v.Kularaine1. My decision in that case, however, related to an entirelydifferent set of circumstances. The landlord had there sought to recovercertain protected premises in Matale from his tenant who, after thecommencement of the tenancy, had taken up residence permanentlyin Colombo. The landlord genuinely required the premises for his ownuse, but the tenant contended the claim was “ unreasonable ” becausehe (the tenant) himself “ required the premises for the purpose ofallowing his brother Batnapala to carry on business there ”. It wasproved, however, that the tenant had no proprietary interest inBatnapala’s business, and that Batnapala was not his “ dependantIn these circumstances I held that the landlord’s claim clearly prevailedon the issue relating to the “ reasonableness ” of his requirement. Itwas in that context that I pointed out that, in such a situation, theclaims of the landlord must necessarily be preferred! to those of a“ non-occupying tenant ” who merely wished to continue his tenancyfor the benefit of someone who “ was in no sense privy to the contractof tenancy ”.
I,
The present case is entirely different. To begin with, the plaintiffdid not suggest that it required the premises for its own use. Moreover,the defendant, though not in personal occupation, had lawfully sub-letthe premises without violating either the terms of her contract of tenancyor the provisions of any statute. The theory of forfeiture by “ non-occupation ” in the sense in which that term was explained in Brown v.Brash 2 has therefore no relevancy to the circumstances of the case.
Brown v. Brash {supra) which declared that “ a non-occupying tenantprima facie forfeits his status as a statutory tenant under the BentBestriction Acts ” must not be misunderstood. In Sabapathy v. Kula-ratne {supra) I intended only to accept the dictum that questions of relative
1 {1951) 52 N. L. R. 425.2 {1948) 2 K. B. 247.-
In re Saleem
311
hardship cannot arise where the tenant has completely abandoned possessionof the premises a nd thereby, to use the words of Asquith L. J., “ completelyremoved himseif from the protective orbit of the ActsBut a tenant who
lawfully sub-lets the premises can in no sense be equated to one who de-feats the very object of rent restriction legislation by renting a house andthen, by completely abandoning it, “ withdraws it from circulation ”although it is urgently required for occupation by others—-per Scrutton L. J.in Skinner v. Geary x. See also Wabe v. Taylor 2. Such instances, as far as I amaware, hav« not arisen in any action instituted in Ceylon, and I do notdoubt that, if they do, the Courts would refuse to interpret the local Actso as to permit the tenant to claim protection. But in the normal caseswith which we are only too familiar, the landlord can only obtain an orderfor ejectment by one or other of the conditions specified in the Act.
The judgment under appeal is based on a misdirection, and must beset aside. I allow the appeal and direct that the plaintiff’s action bedismissed with costs both here and in the Court below.
Appeal allowed.