004-NLR-NLR-V-48-MAHAROOF-Appellant-and-ISADEEN-Respondent.pdf
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NAGALENGAM AJ.—Maharoof v. Isadeen.
1946Present: Nagalingam A.J.
MAHAROOF, Appellant, and ISADEEN, Respondent.
146—C. R. Colombo, 99,103.
Landlord and tenant—Allegation that premises were reasonably required by thelandlord for purposes of his trade—Factors which Court should consider—Burden of proof—Rent Restriction Ordinance, No. 60 of 1942, s. 8,proviso (c).
In an action for ejectment instituted in terms of proviso (c) of section8 of the Rent Restriction Ordinance, the trial Judge, although he wasof opinion that “ neither the plaintiff nor the defendant proved theirrespective allegations”, entered judgment in favour of the plaintiffwithout examining the question whether the premises were reasonablyrequired by the plaintiff having regard to the situation of the defendantas well.
Held, that in the circumstances the plaintiff’s action should bedismissed.
^^FPEAL. from a judgment of the Commissioner of Requests, Colombo.
W. Thambiah, for the defendant, appellant.
C. ChellajrpaA, for the plaintiff, respondent.
December 18, 1946. Nagalingam A.J.—
Cur. adv. vult.
This is an appeal from a judgment of the learned Commissioner ofRequests, Colombo, decreeing the ejectment of the defendant-appellantfrom the premises of which he was tenant under the plaintiff-respondenton the ground that the premises were reasonably required by the plaintifffor the purpose of his trade in terms of section 8 proviso (c) of the RentRestriction Ordinance.
"The.learned Commissioner states in his judgment, “neither the plain-tiff nor the defendant proved their respective allegations If the plaintiff,therefore, did not establish his case, as the burden clearly was on himto adduce proof of-facts upon which he based his claim for relief, theobvious course was for the learned Commissioner to dismiss the plaintiff’s
NAG ALINGAM AJ.—Maharoof v. Isadeem.
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action. But on the contrary, the plaintiff’s case has thereafter been exa-mined and the learned Commissioner, holding that the plaintiff’s requestwas a reasonable one and that the defendant must have known, that whenhe signed the tenancy agreement with the plaintiff he would have to quiton one month’s notice being given to him, has decreed ejectment of thedefendant.
The learned Commissioner has not examined the question whether thepremises were reasonably required by the plaintiff having regard to thesituation of the defendant as well. It does not appear that his attentionhas been drawn to a series of judgments of this Court where the factorsthat should properly be taken into account in adjudicating upon thequestion whether the premises are reasonably required by the plaintiff forhis occupation are set out. In Rahim, v. Jayawardene1 my Lord the Chief!Justice held that proviso (c) to section 8 of the Rent Restriction Ordinancedid not cast on the landlord the burden of establishing merely a goodreason but that having regard to the words “ in the opinion of the Court ”which occur in the proviso the Court had to be satisfied after taking intoconsideration other matters such as alternative accommodation at thedisposal of the landlord and the position of the tenant that the require-ment was a reasonable one. In this case no attempt has been madeto establish that the landlord has no alternative accommodation at hisdisposal or that the position of the tenant was such that his needs werenot greater than those of the plaintiff. In Ab eye war dene and Nicolle*Soertsz J. himself expressed the view that the matter of alternativeaccommodation was a relevant fact to be taken into account along withother facts in considering the question of reasonableness. The observa-tions of the Chief Justice were cited with approval by Cannon J. inRaman v. Per era3 In Mohamed v. Salaudeen* Rose J. followed thedecision of Abeyewardene v. Nicolle which he stated was in accordancewith the observations of the Chief Justice in Rahim v. Jayawardene.Ganekeratne J. in Edmund Appuhamy v. Samarasekera5 held that eitherlandlord or tenant was entitled to lead evidence that injury might resultto his health from an order for possession being refused or made or thatsome pecuniary loss might directly flow from being turned out from thepremises, with a view to enable the Court to consider these matters beforemaking an order under section 8 (c) of the Rent Restriction Ordinance.As I said earlier, the facts disclosed in this case not only did not showthat any of the relevant matters have been considered but the Com-missioner expressly states that the plaintiff has failed to prove his case.
In these circumstances it seems to me unnecessary to remit the case tothe learned Commissioner for further adjudication. I would thereforeallow the appeal and dismiss the plaintiff’s action with costs both in this;Court and in the Court below-
Appeal allowed.
1 11944) 45 N. L. R. 313.3 (1944) 46 N. L. R. 133.
3 (1944) 45 N. L. R. 350.4 (1945) 46 A*. L. R. 166.
‘ (1945) 46 N. L- R. 310.
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