106-NLR-NLR-V-66-S.-M.-ISMAIL-Petitioner-and-S.-RAMALINGAM-Respondent.pdf
Ismail v. Ramalingam
4 54
1964Present: Sri Skanda Rajah, J., and Sirimane, J.
S. M. ISMAIL, Petitioner, and S. RAMALINGrAM, Respondent
S. C. 65/64—Application for Conditional Leave to Appeal to the PrivyCouncil in S. C. 45 of 1963jC. R. Colombo 82852
P-'ivy Council—Conditional leave to appeal—Rent controlled premises—Judgmentfor ejectment against tenant—Valuation of subject matter in dispute—Appeals(Privy Council) Ordinance (Cap. 100), Schedule, Rule 1 (a).
Where a tenant of rent controlled premises seeks to appeal to the Privy-Council as of righu from a judgment for ejectment entered against him, thevalue of the subject matter in dispute is the value of the right of occupancyand net the value of the premises.
Kaliappa Pillai v. Cassim (63 N. L. It. 199) not followed.
Obiter: Where the landlord is the appellant, the determining factor is thevalue of the premises.
Application for conditional leave to appeal to the Privy Council.
M. Tiruchelvam, Q.C., with M. T. M. Sivardeen and J. Peri Sunderam,for the Defendant-Petitioner.
C. Ranganathan, with S. Sharvananda, for the Plaintiff-Respondent.
Cur. adv. vult.
455
SRI SKANDA RAJAH, «J.—Ismail v. RamalingamOctober 15, 1964. Sri Skahda Rajah, J.—
This is an application by an unsuccessful tenant for conditionalleave to appeal to Her Majesty in Council.
He was sued in the Court of Requests by the landlord, after the tenancywas terminated by a calendar month’s notice. The monthly rent ofthese residential premises, which are subject to the Rent Restriction Actof 1948, is Rs. 97'75. The ground on which the action was broughtwas that the premises are reasonably required by the landlord for hisresidence. Judgment was entered for the landlord. The tenant’sappeal to this Court proved unsuccessful. Hence this applicationon the basis that an appeal lies as of right in terms of Rule I (a) of theRules in the Schedule to the Appeals (Privy Council) Ordinance,Cap. 100. In his affidavit he avers that the matter in dispute in theappeal, which he calls the right of occupation, amounts to or is ofthe value of Rs. 5,000 or upwards. The plaintiff-respondent has, in hiscounter affidavit, denied it. Thereafter the petitioner filed a furtheraffidavit with a Valuation Report which gives the value of the premisesin suit. It does not purport to assess the alleged right of occupation.
Learned Counsel for the petitioner cited in support Kaliappa Pillai v.Gassim1, the Privy Council decisions Lipsliitz v. Valero2 andMeghzi Lakhamshi and Brothers v. Furniture Shop3 cited therein, andSalim v. Hashim : S. C. Application No. 5 of 1961. C. R. Colombo 76282,S. C. Minutes of 26.10.62
In Lipsliitz v. Valero (supra) the landlord claimed an order for possessionof land which he had leased to the appellant on a monthly tenancy ata rent of £ 13.5 a month, and on which the appellant had erected abuilding at a cost of £ 450. The appellant pleaded, inter alia, that theaction was contrary to the Rent Restriction Ordinance. The landlordbeing successful in the Supreme Court of Palestine, the appellant appliedfor and obtained leave to appeal to His Majesty in Council. The SupremeCourt holding that the tenancy right amounted in value to at least£ 50, i.e. about four times the monthly rent—and not at 50 times asthe petitioner before us seeks to do—and the value of the building to £ 450.The Privy Council held that the Supreme Court had applied the rig^ttest, viz.: whether it was worth £ 500 to the appellant that the RentRestriction Ordinance should be held to give him protection againstan order to vacate the land leaving on it a building which cost him£ 450 to erect. It is necessary to emphasize that if the building hadbeen erected by the landlord the tenancy right would have been about£ 50 and the tenant would have had no right of appeal to His Majestyin Council. We would point out that the petitioner before us doesnot claim to have made any improvements on these premises.
1 {1961) 63 N.L.R. 199.
1964 A.G. 80.
3 (1948) A.G. 1.
456
SKI sLwiJM.'A KAJAH, J.—lamail v. Ramalingam
In Meghzi Lakm.. wi case (supra) the appeal was by the landlords.At 87 it was pointed out that, “ the value of the subject matter in disputemust be determined by looking at the judgment as it affects the interestsof the party who is prejudiced by it and who seeks the appeal ”, andat 88, “ Looked at from the angle of the landlords, the valueof the property, vacant possession of which they were claiming,was correctly taken as on a capital value basis. It by no meansnecessarily follows that the result would have been the same if the tenantshad been the appellants ….”
In the 63 N. L. R. case (supra), after referring to these two cases,it was stated at 201, “ We consider that in the state of the facts beforeus on the present application we should apply the decision in MeghziLakhamshi's case (supra) that it is the value of the property, not thevalue of the claim in question, which is the determining factor.” Withrespect, we find it difficult to reconcile this view with the observationquoted in the last paragraph, considering the fact that the appellantwas not the landlord but the tenant. We would respectfully add thatwe find that our view is at variance with that in Kaliappa Pillai’s case(supra) and Salim's case (supra), which purported to follow the former.
In S. C. Application 241 j62 : S. G. Minutes of 16.11.1952, the petitionerwas the unsuccessful tenant of business premises, where he carried onbusiness which had a daily turnover of over Rs. 25,000. It was,therefore, held that his right of occupancy was worth more thanRs. 5,000 and he was granted conditional leave to appeal.
In our view (1) where the tenant is the appellant the determiningfactor is not the value of the property but that of the right of occupancy,and (2) where the landlord is the appellant the determining factor isthe value of the property.
In this case the petitioner has failed to establish that his right ofoccupancy is of the value of Rs. 5,000 or upwards.
The submission that the petitioner has a perpetual right of occupancybecause, in the event of his death, his widow or child will be entitledto step into his shoes as tenant under seotion 18 of the Rent RestrictionAct is not correct. Once the tenancy has been terminated by noticethe statutory protection, which is of a purely personal nature, cannotbe passed on to the widow or child : Hens?,nan v. Stephen x.
The above are the reasons for the order we made on 15.10.64 refusingleave.
Sirimane, J.—I agree.
Application refused.
1 (1953) 66 N. L. R. 89.