132-NLR-NLR-V-51-KOCH-Appellantand-ABEYSEKERE-Respondent.pdf
GRATIAEN J.—Kochv. Abeyasekere
54ti
1949Present: Gratlaen J.
.KOCH, Appellant, and ABEYASEKERE, Respondent8. C. 97—C. P. Colombo, 17,119
Rent Restriction Ordinance—Action for ejectment—Relative clai»rw of both parties.
The claims of a tonant who has failed, in spite of diligent search, to findalternative accommodation should bo preferred to those of a landlord whosofamily does at least possess a home in which they can continue to live.
.^PPEAL from a judgment of the Court of Requests, Colombo.
8. J, Kadtrgamar, for defendant appellant.
M. M. Kwnarahulasingham, with J. J/. Jayatnanne, for plaintiffrespondent.
Cur. adv. vult.
December 13, 1949. Gratiaen J.—
The plaintiff, who is a school-teacher employed at Wcligama, rentedhis bungalow in Nugegoda in March, 1946, to the defendant, who is aclerk. The house has been occupied since that date by the defendant,his wife and child.
On July 25, 1948, the plaintiff gave the defendant three calendarmonths’ notice to quit tho house, explaining that he required it forhis wifo and child “ who frequently fall ill here, the climate disagreeingwith them”. There is no evidence, however, that tho climate inNugegoda was any more salubrious than that in Wcligama. The truthappears to be that although the plaintiff's duties required him to remainin Wcligama, ho was anxious to make arrangements for the education inColombo of his daughter who was now ox school-going age.
The defendant protested on September lik that he could not vacatetho house as he had not succeeded in finding suitable alternative accom-modation. The plaintiff roplied that he doubted the genuineness of thedefendant's attempts to look for another house'but, as far as T canjudge, the defendant’s bona- jidcs in t'-.is respect was neither challengednor disproved at the trial. Indeed, the plaintiff’s proctor suggested thenames of certain other landlords who might, possibly accept the defendantas a tenant, but tho defendant has established that this was not correct.
In November, 1948, the plaintiff instituted the present action forejectment. Tho provisions of the Rent Restriction Ordinances admit-tedly apply to the premises in question, and the burden therefore lay onthe plaintiff to prove that he reasonably required the house for theoccupation of his wife and child. In deciding this issue, it is of coursenecessary to consider the relative claims of both parties to the contractof tenancy.
The learned Commissioner of Requests decided the case in favour ofthe plaintiff, and the present appeal is from his judgment. I propose toadopt as substantially correct, tho learned Commissioner’s findings of
A nnammah v. Subramaniam
-547
fact; as to the inferences to be drawn from these facts, an appellatetribunal is placed in no less advantageous a position than the Courtbelow to arrive at a correct conclusion.
In my opinion there is one circumstance which tips the balance infavour of the defendant, and to which insufficient weight has beon givenby the learned Commissioner. Whereas on the* one hand the tenanthad signally failed in his endeavours to find alternative accommodationfor himself and his family, the landlord has been more fortunate. Shortlyafter giving notice to quit, the landlord has succeeded in taking on rent ahouse in Talangama for his wife and daughter, and from there the child,who is a Roman Catholic, has attended St. Bridget’s Convent as astudent. Arrant?*'*11'-'11*'5 Lavo boon. muH# wtnc child to and from
school each day, and although these are not ideal they seem to me to benot inadequate having regard to the difficulties of the present time.Certain minor inconveniences which the plaintiff complains of aresurely insignificant when they are compared with the hardships to whichthe defendant and his family would be subjected if they wore ejocted fromtheir house with nowhere else to go. In my opinion the claims of a tenantwho has failed,in spite of diligent search, to find alternative accommodationshould be preferred to those of a landlord whose family does at least possessa home in which they can continue to live. It was suggested at the trialthat the defendant could take up residenco in the house at Talangamawhich the plaintiff’s wife and daughter now occupy. If that could havebeen definitely arranged, the defendant would have been unreasonablein refusing to vacate the house in Nugegoda. No such proposal washowever made to the defendant before the trial commenced, and at thotrial the owner of tho Talangama house was oxtremely non-committalon the point.
In my opinion the plaintiff has failed to establish his claim to be restoredto possession of the house in Nugegoda. I therefore allow the appealand enter decree dismissing the plaintiff’s action. The defendant isentitled to his costs of appeal, but as he failed in the lower Court toestablish his claim in roconvcntion in regard to alleged “ excess ” rent,each party will bear his own costs of trial.
Appeal allowed.