010-SLLR-SLLR-2002-V-2-MANNANAYAKE-v.-PIYASEELI.pdf
CA
Mannanayake v. Piyaseeli
57
MANNANAYAKE
v.PIYASEELI
COURT OF APPEALTILAKAWARDANE, J„ ANDUDALAGAMA, J.
CA NO. 1044/91 (F)
DC COLOMBO NO. 6399/REAPRIL 04, 2001
Rent Act, No. 7 of 1972 – S. 22 (1) bb, s. 22 (1), (2), (3) – S. 22 (7) – AmendmentNo. 10 of 1977 – Specified date – Applicability of the Bar in s. 22 (7).
The premises were purchased by A in 1966. The defendant-respondent had beenliving in the premises from 1941 and was admittedly in occupation at the timethe premises were sold to A. Upon A's death in 1968 his heirs inherited theproperty. His spouse, instituted action in terms of s. 22 (1) (bb) seeking theejectment of the defendant-respondent.
The District Court held that the bar in s. 22 (7) applies and dismissed the action.
On appeal it was contended that s. 22 (7) was inapplicable, as the Rent Acthad no retrospective effect, as the purchase of the premises had been in 1966.
Per Tilakawardane, J.
“S. 22 (7) needs no interpretation as it is not lacking in clarity. Theretrospectivity is clear from the words of s. 22 (7) especially when it is readtogether with the preamble of the Act and the intention of the legislature thatthe Rent Act was enacted specifically for the protection of tenants."
Specified date contemplated in s. 22 (7) is capable of being even beforethe operation of the Rent Act, No. 7 of 1972 and includes a periodwhen tenancy was governed by the Rent Restriction Act.
The bar does not operate, where the ownership of such premises wasacquired by the landlord on a date subsequent to the specified date bypurchase or by inheritance or gift other than inheritance or gift from aparent or spouse who had acquired ownership on a date prior to thespecified date.
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[2002] 2 Sri LR.
It is manifest that when the ownership of the premises went to the landlordby inheritance after 1968, the tenant was already in occupation from 1941- at the time, the plaintiff did not obtain the ownership of the premiseson a date prior to the date on which the tenant came into occupation.
APPEAL from the judgment of the District Court of Colombo.
Case referred to :
1. Kanagasabai v. Seevaratnam – 76 NLR 517.
Aravinda Athurupana for plaintiff-appellant.
T. B. Dillimuni for substituted defendant-respondent.
Cur. adv. vult.
May 31, 2001
SHIRANEE TILAKAWARDANE, J.
This appeal has been preferred by the plaintiff-appellant against the ijudgment of the District Judge, Colombo, dated 27. 08. 1991 whereinthe action of the plaintiff had been dismissed without costs.
The plaintiff instituted action in terms of section 22 (1) {bb) of theRent Act, No. 7 of 1972 as amended by Rent (Amendment) Law No.10of 1977 seeking the ejectment of the defendant and all those holdingunder the defendant from premises bearing assessment No. 111/25,Ananda Mawatha, Colombo 5. The plaintiff also claimed damages ina sum of Rs. 218/14 and further damages at Rs. 16/78 per mensemfrom 01. 09. 1985 until the plaintiff was restored to vacant possession 10and for costs.
During the pendency of the action the original defendant died on24. 05. 1988. His wife was substituted, thereafter, as substituteddefendant.
The main matter for determination in this case was whetherthe trial Court had erred in holding that the action was barred by
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Mannanayake v. Piyaseeli (Shiranee Tilakawardane, J.)
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section 22 (7) of the Rent Act or whether the section did not haveretrospective effect and was, therefore, not applicable to this action.
Counsel appearing for the plaintiff-appellant submitted thatsection 22 (7) was inapplicable, as the Rent Act had no retrospective 20effect inasmuch as admittedly the purchase of the premises in suitby the defendant had been in 1966.
The plaintiff had instituted this action on 26. 09. 1985. The RentAct came into operation on 01. 03. 1972. Counsel for the plaintiff-appellant has argued that this section was not retrospective and wouldtherefore not be operative. His argument was that in interpreting thissection of the Rent Act, it must be considered as being prospective.
He urged that it had been held that sections 22 (1), (2) and (3) ofthe Rent Act are prospective and are not retrospective in theirscope and nature (Kanagasabaiv. SeevaratnanrP'). The only question 30specifically dealt with in that judgment was whether section 22 (3)of the Rent Act applied to cases which were pending at the time whenthe said Act came into force, and therefore, is irrelevant to thedetermination of this case.
Section 22 (7) of the Rent Act needs no interpretation, as it isnot lacking in clarity. (Interpretation of Statutes. Maxwell 12th ed. page215). The retrospectivity of the section is clear from the words ofsection 22 (7) of the Rent Act. Especially, when it is read togetherwith the preamble of the Act and the intention of the Legislature thatthe Rent Act was enacted specifically for the protection of tenants. 40It is significant that this section has defined what is meant by "specifieddate". It reads as follows:
"In this subsection 'specified date' means the date on whichthe tenant for the time being of the premises, or the tenantupon whose death the tenant for the time being succeeded tothe tenancy under section 36 of this Act or section 18 of the
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Rent Restriction Act, No. 29 of 1948 came into occupation
of the premises the premises".
Therefore, the 'specified date’ contemplated in the section is capableof being even before the operation of the Rent Act, No. 7 of 1972 soand includes a period when tenancy was governed by the RentRestriction Act. By implication it was therefore intended to haveretrospective operation. This is analogous to the interpretation of theCeiling on Housing and Property Act, which cannot only be said tobe operative to those who came into possession of an excess houseafter the operative date of that Act. No suggestion can be made thatwhen the owner of the house purchased it he had no knowledge thata Ceiling was going to be introduced and therefore the Act could haveonly prospective operation. He could not seek an exemption of thatlaw merely because the operative date of the law was 13. 01. 1974. 6°
Section 22 (7) of the Rent Act contains a bar to actions orproceedings being instituted for the ejectment of a tenant of anypremises referred to in section 22 (1) or 22 (2) of the Rent Act.
But, this bar does not operate if the following conditions aresatisfied. Where the ownership of such premises was acquired bythe Landlord, on a date subsequent to the specified date, bypurchase or by inheritance or gift other than inheritance or gift froma parent or spouse who had acquired ownership of such premiseson a date prior to the specified date. The specified date being thedate on which the tenant for the time being of the premises came 70into occupation of the premises.
It is manifest that the bar in terms of section 22 (7) of the RentAct would operate only if the Landlord had obtained the premisesunder the following two conditions: 1
(1) Where the landlord obtained the premises by purchase or byinheritance or gift other than inheritance or gift from a parentor spouse; and
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Mannanayake v. Piyaseeli (Shiranee Tilakawardane, J.)
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(2) Where the ownership was acquired on a date prior to the dateon which the tenant came into occupation of the premises.
In other words the bar would not operate if the landlord obtained sothe ownership of the premises by an inheritance or gift by a parentor spouse and where the landlord obtained the premises after thetenant came into occupation of the premises.
According to the facts in the present case the premises in disputewere admittedly purchased by the vendor, Rathuge David Appuhamyby virtue of deed No. 1652 dated 17th of January, 1966. The defendanthad been living in the premises from 1941 and was admittedly inpossession at the time the premises were sold to Rathuge DavidAppuhamy. Upon the vendor's death on 16. 03. 1968, his heirsinherited the property. His spouse, who was one of his heirs, 90instituted this action.
It is manifest that when the ownership of the premises went tothe landlord by inheritance after 1968, the tenant was already inoccupation of the premises (from 1941) at the time. The plaintiff didnot obtain the ownership of the premises on a date prior to the dateon which the tenant came into occupation of the said premises.Therefore, the Landlord cannot claim an exemption of the barcontained in section 22 (7) of the Rent Act.
Therefore, the District Judge has correctly held that the bar wouldoperate, and dismissed the action of the plaintiff.100
The District Judge, Colombo, has also found that the notice to quitP4, and the documents (P4a and P4b) which had been produced toprove that said notice to quit had been sent by registered post, hadnot been proved. No evidence had been elicited to prove theauthenticity of these documents in terms of the Evidence Ordinance.
The plaintiff-appellant, however, did not canvass these matters beforethis Court.
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In any event in terms of section 22 (1) of the aforesaid Rent Actbefore a decree of ejectment in terms of section 22 (1) (bb) cannotbe issued on the ground that the premises are reasonably required 110by the landlord until the Commissioner for National Housing hadnotified to such Court that he is able to provide alternate accommodationfor such tenant. The Court has not been in receipt of such notification.
No writ in execution of such decree could in any event be issueduntil this prerequisite is complied with.
The District Judge, Colombo, in a well considered judgment hascome to his findings and dismissed the plaintiff's action. I see noreason to interfere with the same. The appeal is dismissed. I makeorder for payment of taxed costs by the plaintiff-appellant to thesubstituted defendant-respondent.120
UDALAGAMA, J. – I agree.
Appeal dismissed.