073-NLR-NLR-V-54-R.-L.-GUNASEKARA-Appellant-and-M.A.S.-MATHEW-Respondent.pdf
Gunaaehera v. Mathew
299
1953Present: Gunasekara J.R. L. GUNASEKERA, Appellant, and M. A. S. MATHEW,RespondentS. G. 84—C. E. Colombo, 34,058
Rent Restriction Act, No. 29 of 1948—Section 13 (1)—•Premises required for landlord’s
son over 18 years of age—Right to eject tenant—“ Member of the family ”—
“ Immediate and present ” need of landlord.
A landlord instituted action for ejectment against his tenant on the groundthat the premises in question were required as a residence for his son, who wasabout 28 years of age. The son was not dependent on the father, but he wasengaged to be married, and the premises were alleged to be required as aresidence for him after his marriage.
Held, that the words “ dependent on him ” in the definition of “ memberof the family” in section 13 (1) of the Rent Restriction Act did not qualify“ son or daughter over eighteen years of age The landlord was, therefore,entitled to claim the premises on the ground that they were reasonably requiredfor his son, although the latter was not dependent on him.
Colombage v. Gomes 1, followed.
Brito Mulunayagam v. Hewavitarne,1 2 not followed.
Held further, that in order to show that the premises were required for occu-pation as a residence for the landlord’s son and the latter’s wife it was notnecessary for the landlord to prove that the son was already married at thetime of the trial..-
1S. C. 74 : C. R. Colombo 15,187, decided on 27th September, 1949.
2{1950) 51 N. L. R. 237.
soo
GTJNASEBlAItA J.—Ghlnasekera v. Mathew
3? PEAL. from a judgment of the Court of Requests, Colombo.V. Wijetunga, for the plaintiff appellant.
K.Rajaratnam, for the defendant respondent.January 27, 1953. Gunasekaba J.—
Cur. adv. vult.
This is an appeal against an order by the additional commissioner of'requests of Colombo dismissing an action for the ejectment of the re-spondent from a house that the appellant had let to him and for therecovery of damages for over holding. The question in the case is whetherit has been proved that the premises are, in terms of section 13 (1) of theRent Restriction Act, No. 29 of 1948, reasonably required for occupationas a residence for any member of the family of the landlord.
The appellant, who is about 71 years of age, is a retired interpreterof the district court of Colombo and the person for whom he alleges thatthe house is required as a residence is a son of his named A. P. Gunasekera>who is about 28 years of age and is a clerk in the Government auditdepartment. The son is not dependent on the father, and it is contendedfor the respondent that therefore he is not a “ member of the family ”of the latter within the meaning of that expression as defined in theenactment. The definition is in these terms :
“ member of the family ” of any person means the wife of that person,or any son or daughter of his over eighteen years of age, or any parent,brother or sister dependent on him.
I am unable to accept the contention that the words “ dependent onhim ” qualify “ son or daughter ”. As X read the definition it sets outthree categories of persons who can be members of the family of anyperson, and it is only the third that consists of dependent relatives. Thecategories are—
“ the wife of that person ”,
“ any son or daughter of his over eighteen years of age ”,
“ any parent, brother or sister dependent on him ”.
The same definition appeared in the corresponding provision of the re-pealed Rent Restriction Ordinance, No. 60 of 1942, and I have beenreferred to two cases in which its meaning was considered by this court.The first of these is an unreported case, Colombage v. Gomes,1 decidedon the 27th September, 1949, in which Canekeratne J. held that “ depen-dent on him ” did not qualify “ son or daughter ”, and therefore rejecteda contention that a son of the plaintiff in that case being a person whowas not dependent on the plaintiff was for that reason not a “ memberof the family ” of the latter. In the other case, Brito Mutuncuyagam v.Hewavitarne 2, which was decided on the 16th February, 1950, my brother
x8. C. 74 : O. R. Colombo 1S,1S7.
{1950) 51 N. L. R. 237 at 239.
afTTJASliiTtAB.A J.—Gunasekera v. Siathev)
SOI
Gratiaen, who was not aware of the earlier unreported decision, tooka contrary view—“ though not without hesitation ” and, as he alsoputs it, “ with diffidence ”,—and held that a married daughter of theplaintiff in that case who was not dependent on the plaintiff was thereforenot a member of the plaintiff’s family. It seems to me, however, thatthis opinion was obiter ; for although the notice to quit had stated thatthe premises were required for the purpose of providing the plaintiff’sdaughter with additional residential accommodation it was held that theywere in reality required by the plaintiff’s son-in-law ** for the use of him-self and the family unit of which he is the head In any event, Iventure to think that if Gratiaen J. had been aware of the case of Colorribagev. Gomes 1 he might well have been content to follow it as a precedent.For these reasons I prefer to follow the decision in that case and I holdthat A. P. Gunasekera is a “ member of the family ” of the appellant.
At present this gentleman is living with his parents and a brother ofthe age of 26 and a sister of 19 in another house belonging to the appellant.He is engaged to be married, and the premises in question are allegedto be required as a residence for him after his marriage. The learnedcommissioner holds that they are not reasonably required for this purpose.This finding is based on the grounds that the necessary accommodationcan be found in the house occupied by the appellant, that the need isnot an immediate and present need, and that the respondent will suffergreater hardship if he is ejected than the appellant’s son if he is not.
The learned commissioner’s view as to how the new couple can beaccommodated is that the appellant can vacate his bedroom and sharewith his wife and his daughter the adjoining one that is now occupiedby them. He holds that such an arrangement would benefit the appel-lant ; for the reason that a ground plan that has been produced indicatesthat the only bath-room in the house adjoins this second bedroom andcommunicates with it, and the appellant stated in his evidence that hewakes up frequently in the night “ to go to the bath-room ”. Thecommissioner says in his judgment :
“ The bath-room and lavatory are adjacent to room No. (2) whichis occupied by the wife and daughter. It therefore appears that them pltff has to go from room No. (1) through room No. (2) in order to goto the bathroom and this is the easiest way of reaching it. It is myview that it would be more convenient and more safe for the pltff inhis present condition to occupy room No. (2) with his wife and daughterwho could be expected as it is also their duty to look after the pltffin his feeble condition. ”
I am unable to agree with a submission made by Mr. Wijetunga thatwhen the appellant spoke of “ going to the bath-room ” he was onlyemploying a euphemism for “ answering a call of nature ” and that theevidence has been misapprehended by the commissioner when he takesit to mean that the appellant actually visited the bath-room or thewater-closet adjoining ith It is clear, however, that the finding that theappellant “ has to go from room No. (1) through room No. (2) in order
1 S. C. 74 : C. R. Colombo 15,187.
302
GTJHASEK ABA J.— Gunoeehera v. Mathew
to go to the bath-room ” is based on a misapprehension of the evidence,for the plan shows that both bedrooms open into the living-room andfrom it there is access through a verandah to the bath-room and thewater-closet. The appellant himself was not questioned as to whetherit was through the adjoining bedroom that he was accustomed to go tothe bath-room, and there is no other evidence on the point. The onlyevidence about his health is the following statement made by him ;
“ The state of my health is not quite satisfactory because I have to wakeup several times during the nights to go to the bath-room ”. While Ido not lose sight of the fact that the learned-commissioner has seen theappellant I find no evidence to justify a view that the appellant needsto have a nurse in attendance on him. The finding that the arrangement-in question would benefit the appellant is unsupported by the evidence.1 have little doubt that but for this erroneous finding the learned com-missioner could not have failed to regard this to be an impracticablearrangement, being one that would deny to the appellant and to hisdaughter a reasonable minimum of privacy.
The appellant and his son stated in evidence at the trial, on the 14thNovember, 1951, that the latter had been engaged to be married sinceApril but that it had not been possible to fix a date for the marriagebecause he had no place to live in with his wife. The learned commis-sioner has accepted the evidence about the engagement, but he holdsthat the need of a residence is not an immediate and present need. “ Theplaintiff’s son is not married yet ”, he says. “ This action is broughtin order to provide a house for his son after he gets married. Thereforethe need of the landlord is not immediate and present. The pltff’sevidence is that the marriage is not solemnised yet as they cannot beprovided with an accommodation. X refuse to believe this. ” I amunable to agree that in order to show that the premises are required foroccupation as a residence for the landlord’s son and the latter’s wifethe landlord must prove that the son is already married. If it hadbeen arranged that he was to be married on, say, the loth November,1951, it could surely not be said that because the marriage had not yettaken place the need of a house was not an “ immediate and present ”need at the time of the trial. Apparently the ground on which the com-missioner rejects the reason given for the marriage not having takenplace is the erroneous finding that the necessary accommodation can befound in the appellant’s house. No other ground is stated in the judg-ment, and there is no evidence of any facts that show the existence ofany other reason for the marriage not having taken place. It seems tome, therefore, that there was no sufficient ground for the rejection ofthe appellant and his son’s evidence on this point, and that the appellanthas established that the premises are required for occupation as aresidence for a member of his family.
One of the matters that are relevant to the question whether they arereasonably required for this purpose is the extent of any hardship thatthe respondent is likely to suffer if he is evicted. The house is situatedin Ratmalana, where the respondent is employed as a minor supervisorin the mechanical engineer’s department of the Ceylon GovernmentRailway. It contains two bedrooms, and the authorised rent is Rs. 17/93
GUJSTASEKLAB.A J.—Qunasekera v. Mathew
303
a month. The respondent has been in occupation of it from 1946.He is a married man, 34 years of age, and at the time of the trial he wasliving there with his wife and two children aged 3 years and 1£ yearsrespectively, and his wife was expecting a third child. This last men-tioned fact, which is no longer relevant, is one of the matters that thelearned commissioner has taken into account in his assessment of thehardship that ejectment could cause to the respondent. Anothercircumstance is that the respondent’s hours of work are 7 a.m. to 4 p.m.The commissioner holds that this makes it necessary that the respondentshould live close to his place of work. It appears from the respondent’sown evidence, however, that even a house in Negombo would be closeenough, for he says that he asked his father to find him a house in thattown. On the question whether there is alternative accommodationavailable to the respondent the commissioner says :
“ This defendant has made efforts to get at some other house inRatmalana. He had also asked his friends and his father also tolook out for any suitable house. So far he has not been able to findanother house. ”
The respondent was the only witness called in support of his case, andthere is no evidence that the persons whose help he sought made anyeffort to find him a house, or that his own efforts went beyond askinghis friends to look for a house for him. There can be no doubt that ifsuch evidence had been available it would have been placed before thecourt. It is manifest that the respondent made no serious effort to findother accommodation. In my opinion the learned commissioner’sfinding on the question of relative hardship is clearly erroneous, and heought upon the evidence before him to have answered in the appellant’sfavour the issue whether the premises were reasonably required foroccupation as a residence for a member of the appellant’s family.
In the lower court the respondent successfully claimed in recon-vention a total sum of Rs. 267/80 which he had. paid the appellantin excess of the rent payable up to the 30th June, 1951, and there isno appeal against so much of the decree as relates to this claim. Itwas admitted at the trial that the rent due up to the 31stOctober, 1951, had been paid. I set aside so much of the orderof the court below as dismisses the appellant’s action anddirects him to pay the respondent’s costs, and I substitute anorder for the ejectment of the respondent as prayed for in theplaint, and for the payment of damages by him to the appellant at therate of Rs. 17/93 a month from the 1st November, 1951, until he isejected from the premises. I also direct that no person other than theappellant’s son A. P. Gunasekera shall enter into occupation of thepremises upon vacation thereof by the respondent or upon his ejectmenttherefrom. Each party will bear his own costs in respect of the pro-ceedings in the court of requests and the respondent will pay theappellant his costs of appeal.
Appeal allowed.