113-NLR-NLR-V-59-S.-MUTTUCUMARU-et-al.-Appellants-and-DR.-C.-V.-S.-COREA-Respondent.pdf
SINKKTAMBV, J.—Ultitlucumaru i>. Corea.
525
1958Present:Suinetaniby, J.S. MUTTUCUJIARU el ah, Appellants, and r>R- C. V. S. COREA,
Respondent.
S.G. 222—C.R. Colombo, 61,438
lit,ii Restriction Act JN’o. 29 oj 19IS, as amended by Act -Vo. S of 1953—" Exceptedpremises”—“For the time being”—Sections 2 (/) (5), JO, 27—Schedule,Regulation 2.
In older to ascertain ■whether premises are “ exccplctl within tlio meaningof Regulation 2 of the Schedule to the Kent Restriction Act as amended byAct Xo. 6 of 1953, one must ascertain the annual valuo “ for tho time beingThe expression “ for the time being ” relates to tho date of nction.
The words “ for tho time being ” used in the definition of residential premisesin section 27 of tho Kent Restriction .Vet relate to the tin to of tho lotting or totho dnte on which by subsequent agreement between tho parties tho characterof tho tenant’s occupation has been changed. They do not relate to the dateof action.'
OunalUlekc v. Fernando (195i) 50 X. T.. R. 105, considered.
^^PPEAL from a judgment of the Court of Requests, Colombo.
Q. K. Chill//, Q. C.: with ll’rther Jai/a warden e. for plain tiffs-appellants.H. V. Perera, Q.C., with 31. L. di Silva, for defendant-respondent.
Car. adv. vult.
March 11, 195S. Sixxktampy, J.—
This is a tenancy action in which the plaintiffs sued the defendant forejectment from premises Ho. 2S, Ward Place, Colombo, alleging thatthe premises were “excepted’5 premises within tho meaning of the RentRestriction Act. Notice to quit was admitted and the only questionon which the parties went to trial related to whether tho premises insuit wore “excepted” premises within the meaning of the Rent RestrictionAct. The evidence of an officer of the Municipality was to the effectthat tho annual value of the premises from 1/1/55 was assessed atRs. 2,540.
Having regard to this evidence the only point that arose for decisionwas whether the premises were business premises or residential premises.The plaint did not expressly aver that the premises were residentialpremises the annual value of which exceeds Rs. 2,000. The answerdid not allege that the premises were business premises, and thereforenot “ excepted ” -premises as the annual value was below Rs. 6,000.ft woulfl in my view have been much more satisfactory if, in this
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SINNETAMBV, J.—JUttHucumaru v. (Jorca
state of the pleadings, the issues had been framed after the learnedCommissioner had ascertained from the parties the actual points on ■whichthey -were at issue. The learned Commissioner after trial dismissed theaction for ejectment and the appeal is against that decision. He appa-rently followed the decision in Gunatillclce v. Fernando 1 and held that,there was no evidence placed before him to show that the annual valueof the premises in November, 1941, even on the basis that they "wereresidential premises, was less than Us. 2,000. Gunatillclce- v. Fernandodecided that, as the law then stood, in order to determine whether pre-mises were business or residential one had to ascertain the annual valueas on 1st November, 1941. The learned Commissioner completelyoverlooked the fact that there has since been an amendment- of theschedule to the pzvincipaJ Ordinance by Act "No. 6 of 1953. Hefercnce tothis has been made, I notice from the record, by learned Counsel whoaddressed the Court. Fernando, J. also in the course of his judgment-in Gunatilletce v. Fernando refers to the amendment. The learned Com-missioner without going fully into the matter took the view that thebuilding in question was not wholly or mainly used for the purpose ofresidence but apparently in view of the other ground on which he dis-missed the action lie did not think it necessary to address his mindsufficiently to this question.
I jiropose at this stage to consider how the amending Act- of 1953affected the legal position as determined in Gunatillefcc v. Fernando.Section 2 (4) of the Act of 194S provides that- it shall apply to premisesin a proclaimed area which are not- ‘‘excepted” premises. Sub-section5 is to the effect that for the purposes of determining whether premisesare “excepted” premises one must look to the schedule. The scheduleas amended provides in regulation 1 that all new construction completedafter a certain date shall be “excepted” premises. Tlegulatiou 2 whichis the regulation applicable to the present ease provides as follows :
“Any promises situated in airy area specified in column L hereundershall be excepted premises for the purposes of the Act if. being premisesof the description mentioned in column 2, the annual value thereof asassessed for the purposes of any rates levied for the time- briny by anylocal authority -under any written law exceeds the amount specified inthe corresponding entry in column 3.”
Then follow three columns containing particulars as in the original.inamendcd schedule. The result of the amendment is that in ordero determine whether premises are “ excepted ” or not one lias not to look'or the annual value as on November, 1941, but to ascertain the annual•aluc “as assessed for the purposes of any rates levied for the time being. "L'he effect of the amendment is twofold / fust, it excepts from the opera-ion of the Act new construction after a certain date and, secondly, aixation of the annual value is related not to November, 1941, but to'the time being”. The result is that if the assessment of the annualalue of any premises, which is below the figures in column 3. is at- any 1
1 U'J ',1) 50 .V. L. i:. J05.
SIXXETAJfi3V, J.—SHu/liticitftiaru v. Corea
527
stage increased tiio premises ■would become “ exceptedif the totalincreased amount in tho ease of residential premises exceeds Rs. 2,000,and in the case of business premises exceeds Rs. 6,000. It is no longerfixed and inflexible. In order therefore to ascertain whether premisesare “ excepted ” one must ascertain the annual value “ for the time being ”.That expression, it seems to me, must relate to the date of action. Inregard to this both Counsel were agreed.
The next question for determination is whether tho premises wereresidential or business. To ascertain this one must examine the pro-visions of section 27 which defines residential premises to mean “anypremises far the time being occupied wholly or mainly for tho purposeof residence. ” All other premises are defined as business premises.It is to bo noted that the words “for the time being” appear here also.Does it relate to the lime at which the action -was brought or the timeat which the property was let to the tenant ? Sonic guidance is to beobtained from the provisions of section 10 which renders it unlawfulfor a tenant to whom residential premises had been let to use it for anypurpose other than that of residence. Quite apart from that under theRoman Dutch Law a tenant is under a duty not to use a leased premisesfor any purpose other than that for which lie hired it: and, in tho absenceof an agreement, to use it for the purpose for which such property is byits nature intended to be used (Landlord and Tenant by Wille -127—1010Ld.) 11 will thus he logical to assume t hat the words “ for the time being ”used in the definition of residential premises relate to the date of tlioletting. 31r. H. V. Pcrora who appeared for tho respondent . concededthat this would be a rational interpretation but he argued that the burdenwhich was on the plaintiffs had not been discharged and that the actionwas rightly dismissed. If the words “for the time being ” is to he relatedto the date of action it Avould mean that a tenant at his own will andpleasure may at any time change the character of his occupation fromresidential to business to the prejudice of lvis landlord and would be able tocreate a situation of uncertainty and variability in regard to tlie respectiverights of the landlord and the tenant under the Act. I am, on a con-sideration of the relevant provisions of the Act taken together with theobligcations of a tenant under our law, of the view that the words “ forthe time being ” in section 27 should relate to the date of the letting or tothe date on which by subsequent agreement between the parties thecharacter of the tenant's occupation has been changed : it is needless toadd that such a change cannot be effected by the unilateral act of thetenant.
It is thus apparent that, in view of the amendment- to the Act, in orderto decide this ease the learned trial judge would have-had to come to afinding on the following matters :
On what date were the premises let to the tenant ?
When the premises were let to the defendant was there an agree– ment, express or implied, as regards the character of his occu-pation, i.e., was it let for residential or business purposes ?
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SINXETAJIBY, J.—SiluUucumaru v. Corea
If there was no agreement what was the purpose for which the
– property by its nature intended to be used—business orresidential ?
What was the annual value at the date of action ?-
None of these matters, except the last one, seems to have receivedsufficient attention in the course of the trial. This I think is partly dueto the unsatisfactory nature of the issues framed. When the plaintiffsgave evidence there was nothing either in the issues or in the pleadingsto suggest that the defendant’s contention was that the premises worebusiness premises and not residential premises*. Indeed, in his exami-nation-in-chief the second plaintiff proceeded on the footing that thepremises were residential. Even in his cross-examination the onlysuggestion that the premises were business premises came at the vein-end when the second plaintiff was asked aboil! the defendant’s practiceand whether in the ease of business premises they become “ excepted ”only if the annual value is over Rs. 6, 000. Also it was only when givingevidence that the defendant for the first time took up the stand that heused the premises for the purposo of his business as a practitioner ofhomeopathic medicine and that they were therefore not f: excepted ”premises. Even the evidence relating (o the accommodation availablein the house is indefinite and uncertain. Most medical men do have aportion of their residences set apart for the practice of their professionbut that alone would not make them business premises. The learnedCommissioner has not, as I stated earlier, analysed this aspect of theevidence fully. There is besides, having regard to the various mattersto which I have adverted earlier, in my view insufficient evidence onwhich a satisfactory finding can be reached. The burden is no doubton the plaintiffs to establish that the premises are “ excepted ” and inthe absence of an issue which sets out the real contest between the partiesit is not surprising that the plaintiffs assumed that the character ofthe occupation as residential would not be disputed..
In the circumstances it seems to me the most equitable order to makein this case is to set aside the judgment of the learned Commissioner andsend it back for retrial before another Commissioner upon fresh issuesso that the matters I have referred to may be fully investigated andadjudicated upon. I make order accordingly. The costs of the trialalready had and of this appeal shall be costs in the cause.
Sent back for retrial.