WEERASENA v. MATHUPALA

035-SLLR-SLLR-1992-V-1-WEERASENA-v.-MATHUPALA.pdf


WEERASENA
v.
MATHUPALA
COURT OF APPEALW. N. D. PERERA, J.
ISMAIL, J. ANDEDUSSURIYA, J.
A. 506/79
C. COLOMBO 1284 RE4, 10 AND 30 JUNE, 1992
Landlord and tenant – Reasonable requirement for purposes of landlord’sprofession – Duty of tenant to look for alternative accommodation – Assessmentof reasonable requirement – Point of time at which reasonable requirementshould be assessed – Rent Act, s. 22 (1) (b).
The premises in suit comprising a basement, ground floor and first floor wsrs :::in 1947 by the plaintiff's mother to the defendant who ran a tailoring and dry-cleaning business. The standard rent did not exceed Rs. 100/-. The pialntli, smother gifted these premises to the plaintiff when he passed out as a doctor. ?■ -aplaintiff gave one year’s notice to the defendant on the ground that the premiseswere required for running a dispensary. The defendant who had been using thebasement for the drying of clothes and the ground floor for tailoring surrenderedthese two sections to the plaintiff. The defendant used the first floor for ironing ofclothes and maintaining an office. The plaintiff did extensive improvements andstructural improvements to the basement and ground floor. The first floor used bythe defendant was separately assessed as 372 1/1 in 1972 and its standard rentnow exceeded Rs. 100/-. The plaintiff wanted these premises for use as alaboratory, observation room and drug store.
The plaintiff’s practice had increased. He had an acupuncture clinic and a clinicfor channelled consultation.
The defendant ran a dry cleaning business and although he had given up part ofthe premises, he had not made any serious attempts to find alternativeaccommodation, despite receiving a year’s notice and having 12 years to look forother premises while the case was pending.
Held:
In deciding the issue reasonable requirement, the court must take intoaccount the position of the landlord as well as of the tenant, together with anyother factor which is relevant to the decision of the case.
(Edussuriya, J. dissenting) The efforts made by the tenant to find alternativeaccommodation must be taken into account. Where the tenant had not madeserious attempts to find alternative accommodation although he had handed overthe basement and ground floor, this would count as a factor against him.
In weighing the comparative needs of the landlord and tenant, the court willact as follows:
Where the hardship of the landlord is equally balanced with that of thetenant, the landlord's claim must prevail.
Where the hardship to the landlord outweighs the hardship to the tenantthe landlord's claim must prevail. ’
Where the hardship to the tenant outweighs the hardship to the landlord,the landlord's action must be dismissed.
The landlord is not expected to demonstrate a necessity. The words“reasonably required" connote something more than a desire but somethingmuch less than absolute necessity will suffice.
(Edussuriya, J. dissenting) Reasonable requirement has to be determined notas at the date of the institution of the action, but at the conclusion of the trial.
Cases referred to:
Abeywardene v. Nicolle (1944) 45 NLR 350.
Ramen v. Perera (1944) 46 NLR 133.
Mohamed v. Salahudeen (1945) 46 NLR 166.
Raheem v. Jayewardene(1943) 45 NLR 313, 316.
Fernando v. David (1948) 49 NLR 210.
Atukorale v. Navaratnam (1948) 49, NLR 461,469.
Gunasena v. Sangaralingam Pillai & Co. (1948) 49 NLR 437,475.
Andree v. de Fonseka (1950) 51 NLR 213.
Weerasinghe v. Candappa (1950) 52 NLR 91.
Hameedu Lebbe v. Adam Saibo (1948) 50 NLR 181.
Sabooriya Begum v. Hassen CA 305/85 (F) CA minutes of 16.10.91.
Abeysekere v. Carolis SC 44/91 CA 540/88 minutes of 28.02.1992.
Newman v. Biggs (1945) EDL 51 at 54.
Paterson v. Koonin (1947) 2 SALR 337.
Ismail v. Merit (1948) 50 NLR 112.
Swamy v. Gunawardene (1958) 61 NLR 85.
Abdul Rahim v. Gunasena (1964) 66 NLR 419.
Arnolis Appuhamy v. De Alwis (1958) 60 NLR 141.
Hilmi v. De Alwis, CA (SC 280/79 F) SC minutes of 14.08.80.
Abdeen v. Miller & Co. Ltd. (1948) 50 NLR 43.
Mendis v. Ferdinands (1950) 51 NLR 527.
De Mel v. Piyatissa (1948) 39 CLW 63.
John Appuhamy v. David (1945) 47 NLR 36.
Egginona v. David (1946) 22 CL Rec 40.
Abeysekera v. Koch (1949) CLW 31.
Britto Mutunayagam v. Hewavitarane (1950) 51 NLR 237.
Shrlmpton v. Rabbits 40 TLR 457,
Allcroft v. Lord Bishop of London (1891) AC 66.
Neville v. Hardy (1920) 124 LT 210,
Kennealy v. Dunne (1977) (1) QB 837, 844.
APPEAL from judgment of the District Court of Colombo.
K. N. Choksy, P.C. with N. B. S. Moraes and S. Mahenthiran, for plaintiff-appellant.
P. A. D. Samarasekera, P.C. with G. L. Geethananda and P. Keerthisinghe fordefendant-respondent.
Curadvvult.
9th September, 1992.
W. N. D. PERERA, J.
The plaintiff-appellant, the landlord instituted this action on13.11.1975 for the ejectment of the tenant, the defendant-respondent, from premises No. 372 1/1 Kollupitiya Road, Colombo 3,and for arrears of rent and damages. An amended plaint dated8.12.1976 was filed to comply with the provisions of theAdministration of Justice Law, No. 25 of 1975. The defendant-respondent filed answer on 30.8.1976 and the amended answer on11.5.1977. The said premises are governed by the provisions of theRent Act No. 7 of 1972. The plaintiff-appellant relied on the groundthat the premises are ‘reasonably required' within the meaning ofsection 22(2)(b) of the Rent Act for the purposes of his profession,that of a medical practitioner. The plaintiff-appellant, had given thedefendant-respondent one year’s notice on 26.8.1974 to quit the saidpremises on or before 31.08.1975. He pleaded that the defendanthas had sufficient time to find alternative accommodation. Theprincipal issue at the trial was whether the premises were reasonablyrequired for the purposes of the practice of the plaintiff-appellant’smedical profession. His action was dismissed with costs on13.03.1979. The plaintiff-appellant now seeks to have the saidjudgment set aside and to have judgment entered in his favour tosecure the ejectment of the tenant from the aforesaid premises.
The defendant was the tenant of the mother of the plaintiff fromabout 1947 of the entirety of the premises then bearing assessmentNo. 372 Galle Road, Kollupitiya, consisting of a basement, a groundfloor and a first floor. The premises, the standard rent of which did notexceed Rs. 100/- were then rent controlled. The defendant wascarrying on the business of a tailoring and dry cleaningestablishment known as “Servall”. In about 1970, the plaintiff’s motherhaving gifted the premises to the plaintiff after he qualified as amedical practitioner, requested the defendant to give vacantpossession of the entire premises to enable the plaintiff to run adispensary. The defendant then surrendered the basement and theground floor to enable the plaintiff to establish a dispensary. Thedefendant had till such time used the basement for the drying ofclothes and the ground floor for tailoring. On the first floor a room wasused for ironing of clothes while the balance space was utilized for
maintaining an office. The plaintiff having thus obtained possession ofa part of this building did extensive improvements and structuralalterations to it at a cost of Rs. 45,000/-. The first floor used by thedefendant was then separately assessed as No. 372 1/1, while thebasement, the ground floor and the terrace on the first floor, inclusiveof the additions to the two floors, were separately assessed andcontinued to bear the assessment No. 372. Following the revision inthe rates of assessment of the premises in 1972 the standard rent ofthe portion of the premises assessed under No. 372 1/1 occupied bythe defendant exceeded Rs. 100/- and it thus became possible forthe plaintiff to institute this action for ejectment on the ground ofreasonable requirement.
The plaintiff having made structural alterations and improvementsto the building commenced his practice there on 23rd December1971. Having also taken up residence there he utilized the basementfor the kitchen, and as a dining room, a sitting room and also forstoring drugs. There were two bedrooms with a bathroom used by thefamily on the ground floor. The balance space on the ground floorwas utilized as a consultation room, a room for dressing wounds, as adispensary and as a waiting hall. The defendant used the entirety ofthe first floor, except for the terrace at the rear, and it consisted of tworooms, a fit-on room, a bathroom and another terrace, all of whichwas assessed as No. 371 1/1. These are the premises from which theplaintiff sought to have the defendant ejected. He had averredspecifically that the said premises were required for use as alaboratory, as an observation room and for storing drugs presentlystored in the basement.
The plaintiff sought to have the defendant ejected from the saidpremises, the first floor, on the basis that the said premises werereasonably required by him for the purposes of his profession as amedical practitioner. The approach of the trial judge was that inconstruing the provisions of section 22(2)(b) of the Rent Act theposition of the tenant must also be taken into consideration inconsidering the reasonable requirement of the premises by thelandlord.
The principal submission of President's Counsel for the appellantwas that the trial judge had misdirected himself by taking into
consideration the requirement of the tenant, as the relevantconsideration in terms of section 22(2)b of the Rent Act is only thereasonable requirement of the landlord. The relevant portions ofsection 22(2) provide as follows:
“Notwithstanding anything in any other law, no action orproceedings for the ejectment of the tenant of –
(i) any residential premises the standard rent … of which for amonth exceeds one hundred rupees; . . . shall be instituted inor entertained by any Court, unless where
(b). the premises are, in the opinion of the Court, reasonablyrequired for occupation as a residence for the landlord or anymember of the family of the landlord or for the purposes oftrade, business, profession,'vocation or employment of thelandlord…”
Section 22(2)b is similar to the provisions of section 8c of the RentRestriction Ordinance No. 60 of 1942 and section 13 of the RentRestriction Act No. 29 of 1948 and these provisions have beenconsidered in several earlier judgments.
It was held in Abeywardene v. Nicolle(' in Ramen v. Perera{2) andin Mohamed v. Salahudeen(3> that in deciding whether under section8c the requirement of the premises for the landlord’s use is areasonable one, the surrounding relevant facts must be consideredand that lack of alternative accommodation for the tenant is one ofsuch relevant facts. In Raheem v. Jayewardenew, Howard, CJ. said,"The Court has to be satisfied after taking into consideration othermatters such as … the position of the tenant, that the requirement isa reasonable one.”
Subsequently, however, Basnayake, J. in Fernando v. Dav/d(5) andin Atukorale v. Navaratnamie>objecting to the interpolation of specificprovisions of foreign legislation into our Ordinance for itsinterpretation, took a view contrary to that expressed in the earlierjudgments. In the former case Basnayake, J. stated;
“Once the Court is satisfied that the premises are reasonablyrequired by the landlord for any of the purposes mentioned insection 8c, the Court is not in my view entitled to take intoaccount the tenant’s difficulties in finding accommodation.”
In Atukorale v. Navaratnam(6) Basnayake, J. again expressed asimilar view:
“Section 8c requires the Court to form an opinion whether thepremises are reasonably required for the occupation as aresidence for the landlord. The tenant’s difficulties do not comeinto the matter at all. The only thing that matters is thereasonableness of the landlord’s requirement.”
The ensuing conflict in regard to the interpretation of the relevantprovisions which prevailed was then resolved by a bench of twojudges in Gunasena v. Sangaralingam Pillai & CoP which favouredthe earlier view holding that a Court must take into account not onlythe position of the landlord but also that of the tenant, together withany other factor that may be directly relevant to the acquisition of thepremises by the landlord. This decision has been regarded assettling the law in this regard. In Andree v. de Fonseka(8), Gratiaen, J.referring to the issue of reasonableness said: “In determining thisissue the Court must take into account the position of the landlord aswell as of the tenant together with any other factor which is relevant tothe decision of the case. Doubts which had at one time existed as tothe proper interpretation of the words ‘reasonably required’appearing in this section have now been set at rest by the ruling ofthis Court in Gunasena v. Sangaralingam Pillai & Co.". Again inWeerasinghe v. CandappaGratiaen, J. observed, “It is now settledlaw that in considering whether the premises are reasonably requiredfor the occupation of the landlord, a Court must take into account,inter alia, the degree of hardship which an order for eviction wouldcause to the tenant.” Similar observations were made byNagalingam, J. in Hameedu Lebbe v. Adam Saibo(m>.
In a recent decision in Sabooriya Begum v. Hassen<u it was theview of the Court of Appeal, without reference to any of the decidedcases in this regard, that the “reasonable requirement of thepremises by the landlord only is relevant, as there is no provision in
the Rent Act to consider reasonable requirement of the premises bythe tenant". The Supreme Court, however, in Abeysekere v. Carol is "2i,having recognised that the view expressed in Gunasena v.Sangaralingam Pillai & Co m has been consistently followed sincethen, observed that the foundation for that view was that“reasonableness is not one-sided”. Windham J., in Gunasena v.Sangaralingam Pillai & Co.i7) had stated: “It is the negation ofreasonableness to take a one-sided view to consider one factor onlyout of more than one; nor can any person be said to have reached areasonable decision who, in reaching it, ignores any effect which itmay have on his neighbours”. The reasonableness of the requirementof the landlord cannot be assessed regardlesspf the difficulties thatwould be encountered by the tenant. The interests of the tenant in thepremises is a pertinent consideration in the evaluation of the words“reasonable requirement" of the landlord. It is inherent in the criterionof reasonableness that the position of the tenant should beconsidered as a relevant factor. “The exclusion of the tenant's point ofview puts it beyond the power of the Court to make a comprehensiveappraisal of all factors by reference to which the reasonableness ofthe landlord's demand for possession has to be assessed” G. L.Peiris in Landlord and Tenant- page 604.
We are therefore of the view that the trial judge has adopted thecorrect approach in interpreting the provisions of section 22(2)b ofthe Rent Act in conformity with the settled law, approved and affirmedfrom time to time. No cogent reason has been adduced before us tohold that the interpretation of Windham, J. of the words “reasonablyrequired" for the purposes of the landlord arrived at “unfettered byauthority” in Gunasena v. Sangaralingam Pillai & Co ,m need be nowrevised.
The next submission on behalf of the appellant was that in anyevent the hardship suffered by the landlord outweighs that whichmight ensue to the respondent. In his judgment the trial judgereferred to the conduct of the respondent in surrendering, thoughstrictly not obliged to do so, the basement and the ground floor of thepremises that was occupied by him from 1947 to 1970 in its entirety;that having so obliged the appellant, the respondent was now notacting unreasonably in resisting his eviction from the first floor of the
premises; that the appellant's requirement of the first floor for thepurposes envisaged in the amended plaint was satisfied with thespace in the basement and the ground floor becoming available tohim consequent to the shifting of his residence to a houseconstructed by him in 1987. The trial judge finally held that therespondent would be subject to more serious hardship,inconvenience and damage in the event of his being evicted from thepremises.
The learned trial judge without making an appraisal of thereasonable requirement of the landlord has misdirected himself byconsidering whether it is reasonable in the circumstances to make anorder for the ejectment of the tenant. The plaintiff-appellant averred inhis amended plaint dated 8.12.1976 that the premises are requiredby him for the purposes of its use as a laboratory, for an observationroom and for its use as a drug-store. His requirement for thesepurposes were pleaded in his amended plaint dated 8.12.1976before he shifted his residence in September 1977. At the stage ofthe trial he produced sketches ‘A’ and ‘AT to demonstrate the uses towhich he had put the space which became available consequent tothe shifting of his residence. He had at this time used the basementto accommodate the drug-store, the E.C.G. room, an acupunctureclinic and a waiting room, while the two rooms on the ground floorwere utilized as rooms for specialists for channelled consultation. Hehas explained how the interests of his patients were best served bymaking acupuncture treatment available to them and by having themexamined by specialists in his presence. In his evidence hemaintained that the location of the storeroom for drugs in thebasement was not satisfactory and that the E.C.G. room could alsobe accommodated in the first floor besides having an examinationroom. The burden resting on the landlord in regard to showingreasonable requirement was adverted to as follows by Basnayake, J.in Atukorale v. Navaratnam®.
“The extent of the onus resting on the landlord appears from thewords of Pittman, J., in Newman v. Biggs™, quoted with approval bySearle, A.J. in the case of Paterson v. Koonin™.It is difficult, says Pittman, J., "to see what more canordinarily be required of a claimant than that he should assert
his good faith and bring some small measure of evidence todemonstrate the genuineness of his assertion. He can normallyscarcely do more and it rests with the lessee resisting ejectmentto bring forward circumstances casting doubt upon thegenuineness of his claim”.
The appellant having shown that he reasonably requires thepremises for the purposes of his profession, need not be expected todemonstrate a “dire necessity”. “The words “reasonably required"connote something more than a desire, although at the same timesomething much less than absolute necessity will do” – Megarry -The Rent Acts, Vol. 1, page 424, 11th edition. It is settled law thatreasonable requirement has to be determined not as at the date ofthe institution of action but at the conclusion of the trial – Ismail v.Herft{'5 Andree v. de Fonsekam, Swamy v. Gunawardenem, AbdulRahim v. Gunasenam. The appellant has demonstrated that thenature and the extent of his practice had increased; the number ofhis patients had increased from 24 patients in December 1971 whenhe commenced practice to over 10,000 in 1976. Besides, utilizing thespace which became available after he moved out, for anacupuncture clinic and for specialists channelled consultation for hispatients, after specialists became entitled to engage in privatepractice in 1977, did not negative his bona tides but on the contraryshowed that the appellant had made a genuine endeavour to furtherhis professional purposes in the best interests of his patients. Thecircumstances which occurred after the institution of his action hadthus strengthened his claim to possession; Arnolis Appuhamy v. DeAlwism.
While the plaintiff-appellant has shown that he still reasonablyrequired the premises for his professional purposes as a medicalpractitioner, the defendant-respondent has not made any seriousattempt to find alternative accommodation. A period of over 12 yearshad lapsed since the respondent was given notice to quit as at thedate of the trial. In his amended answer dated 11.5.1977, thedefendant-respondent while admitting that he received one year’snotice to quit on or before 31.08.1975 had stated that he will find itdifficult to find alternative accommodation. Although it was shownthat several new buildings had come up around the area, the
defendant-respondent said that he made enquiries from oneestablishment which demanded an advance and a hire rent. Hisposition was that he would be unable to find alternativeaccommodation at the same rent he was paying the plaintiffappellant. He was unable to say when he would move out of thepremises though it was not his desire to take possession of the same.The evidence was that he ran a dry cleaning business in thepremises from 1947 and that he required the premises in suit for thispurpose. He had voluntarily relinquished a part of the building to theappellant at the latter’s request in 1971. He required the premises forthe carrying on of the business of dry cleaning. He had been givenone year’s notice by the appellant before the action was filed. Hisevidence as to his efforts to secure alternative accommodation is asfollows: “After the plaintiff asked for the surrender of the premises,there were a number of buildings constructed on Galle Road. I wentand inquired from them. Their rents were excessive. They asked for adeposit. One place was Dadlani Building. They asked for Rs. 1,000/-as rent and for 5 years rent as deposit. Similarly I inquired regardinga number of buildings. I state that I have given a reasonable portionof the building for the plaintiff’s needs”. His evidence is therefore notthat suitable alternative accommodation was unavailable nor that hecould not afford their rents, but simply that their rents were‘excessive’. The defendant admitted in cross-examination that he wasa man of means possessing property both in and out of Colombo. Hisposition seems to have been that he was not prepared to pay a renthigher than that he was already paying the appellant.
In the case of Hilmi v. De Alwism, Victor Perera, J. stated, “Thedefendant-appellant having received this notice has made noendeavour whatsoever to look out for alternative premises. Hisevidence on this point is at the tail-end of his re-examination, 'I haveno other house to shift. I have tried to get a house but I am finding itdifficult. After this action was filed I just inquired for a few houses. Ifind it difficult. I do not have an ancestral house. In view of this newprovision in the law and in keeping with the criteria established underthe Rent Restriction Act in the numerous decided cases, where alandlord wants the premises for his own occupation and the tenanthas made no serious effort to secure other accommodation or toretain other accommodation which might have or had been available,
a Court called upon to form an opinion as to the reasonableness willbe justified in granting a landlord a decree for ejectment. In my view,the requirement of one year's notice thus provided relieved to someextent a burden that may have laid on a landlord".
In the instant case all that the respondent has done is to make afew inquiries as to other premises which according to him wereavailable at the time. It is only in respect of one such premises that hehad given evidence as to the rent demanded. As to what rent wasdemanded of him in respect of the other unnamed premises that hehas referred to, he has remained silent. We do not consider that theevidence shows that he had made any sertous effort to obtainsuitable alternative premises. We are in agreement with the viewexpressed by Victor Perera, J. in the case of Hilmi v. de Aiwism thatsuch failure could justify a Court, in granting a landlord a decree forejectment under the provisions of section 22 of the Rent Act. Oncethe landlord has shown that he reasonably requires the premises, thefailure of the tenant to search for alternative accommodation will ormay negative the plea that the tenant, too, reasonably requires thepremises for himself – Abdeen v. Miller & Co. Ltd™. We are thereforeof the view that on the evidence in this case the defendant-respondent had failed to show that he has made a genuine effort tosecure other accommodation and in the circumstances the landlordis entitled to judgment in his favour.
As regards the question of hardship, Dias, S.P.J. in Mendis v.Ferdinands1^ set out three categories of comparative needs asbetween landlord and tenant, as the case may be, would be entitledto judgment in his favour:-
Where the hardship of the landlord is equally balanced withthat of the tenant, the landlord’s claim must prevail; De Mel v.Piyatissa<J2), Ramen v. Perera®.
Where, the hardship to the landlord outweighs the hardship tothe tenant, the landlord’s claim must prevail; John Appuhamyv. Davidm, Egginona v. Davidm.
Where the hardship to the tenant outweighs the hardship tothe landlord, the landlord’s action must be dismissed,Abeysekera v. Koch{ii Britto Mutunayagam v.Hewavitaranem.
The appellant has established not only that his requirement isreasonable but that it is equal to that of the respondent. Nagalingam,J. said in Hameedu Lebbe v. Adam Saibom; “Where the hardship isequally great viewed from either the landlord’s point of view or that ofthe tenant, in determining the question of reasonableness of thelandlord’s requirement, the pendulum must be regarded as swingingin the landlord’s favour inasmuch as he is the owner of the premises”.Further, in view of the respondent’s failure to make a serious effort tofind alternative accommodation, we are of the view that the appellantis entitled to a decree for ejectment. The first two issues must beanswered in the affirmative. We therefore set aside the judgment ofthe District Judge and allow the appeal and direct that judgment beentered in favour of the plaintiff-appellant for ejectment of thedefendant-respondent from the premises in suit. Although theappellant is entitled to arrears of rent and damages we make noorder as to the quantum in this regard as the rent has not been finallydetermined by the Rent Control Board. The defendant-respondentwill pay the appellant Rs. 525/- as costs of this appeal and the costsincurred in the District Court.
ISMAIL, J. – / agree.
EDUSSURIYA, J.
The Piaintiff/Appellant the landlord, of the premises which is thesubject-matter of this action, the standard rent of which exceedsRs. 100/- per mensem has instituted this action to evict theDefendant/Respondent therefrom and recover'the possession thereofon the ground that it is reasonably required for the purpose of hismedical practice.
After trial, the learned District Judge had dismissed thePlaintiff/Appellant’s action and this appeal is from that judgment.
Briefly the facts are as follows:
The Defendant/Respondent had first gone into occupation in 1947of the entire building made up of the basement, ground floor and the1 st floor bearing assessment No. 372. At present, the basement andthe ground floor bear assessment No. 372 whilst the 1st floor which isalone occupied by the Defendant/Respondent bears assessmentNo. 372 1/1.
In 1970 or thereabout, when the Plaintiff/Appellant’s mother, thethen landlord requested the release of the ground floor, theDefendant/Respondent had vacated the ground floor, and althougheven the basement had been temporarily vacated by theDefendant/Respondent at that time to enable the Plaintiff/Appellant toeffect certain structural alterations, it is the Defendant/Respondent’sevidence that the basement was'not handed back to him by thePlaintiff/Appellant. In 1970 the standard rent of the premises hadbeen less than Rs. 100/-. Then, bn 26.8.1974 just four years later thePlaintiff/Appellant had noticed the Defendant/Respondent to vacatethe 1st floor bearing 372 1/1 on the ground that it was reasonablyrequired by him for the purpose of his profession. By that date thestandard rent of the premises in question had been increased to overRs. 100/-.
The learned District Judge having held that in his view morehardship and inconvenience will be caused to theDefendant/Respondent than to the Plaintiff/Appellant if judgment was ventered in favour of the Plaintiff/Appellant, dismissed thePlaintiff/Appellant’s action. In other words, it appears that thePlaintiff/Appellant has satisfied the learned District Judge that he hasa genuine present need for these premises for the purpose of hisprofession and dismissed the Plaintiff/Appellant’s action, because theDefendant/Respondent would be faced with more hardship by beingejected than the Plaintiff/Appellant being without the premises.
Mr. Choksy, P.C. appearing on behalf of the Plaintiff/Appellantsought to attack this judgment on two grounds namely; (1) that thestatute does not require the Courts to consider the tenant’s.
requirements and to read into the provisions of a statute words whichare not there will be doing violence to the rules of interpretation.(2) that in any event the Plaintiff’s requirements outweigh the tenant’srequirements.
Both Mr. Choksy for the Appellant and Mr. Samarasekara for theRespondent in the course of their submissions stated that eventhough the Rent Restriction Ordinance of No. 60 of 1942 wasreplaced by Act No. 29 of 1948 as amended by No. 10 of 1961, No. 2of 1964 and No. 12 of 1966 and then replaced by Act No 7 of 1972,the section corresponding to S 8(c) in the Rent Restriction OrdinanceNo. 60 of 1942 is similar. They also referred to the decisions of theSupreme Court and the Court of Appeal up to date, on this question.
Mr. Choksy also submitted that the early decisions of our SupremeCourt were influenced by the English decisions which interpreted therelevant provision in the English statute which was different to theprovision in our Ordinance.
I will now proceed to examine these decisions.
In Abeywardene v. Nicolle (,) Soertsz, J. held that alternativeaccommodation is a relevant fact to be taken into account along withother facts in considering the question of reasonableness. In thatcase the Plaintiff/Appellant’s counsel sought to attack the judgment inthe lower Court on two grounds, the first of which was that there waslogical inconsistency in the finding that the Plaintiff’s action was ingood faith and yet unreasonable and secondly that the Commissionerof Requests misdirected himself in taking into account the matter ofalternative accommodation.
In regard to the first Soertsz, J. held that, “there was no logicalinconsistency, even ordinarily in stating that something has beendone in good faith or with the best of motives but yet unreasonably.Much less is there such inconsistency in a case in which we wereconcerned not with reasonableness at large but with what may bedescribed as relative reasonableness”, and went on to cite apassage in Justice Acton’s judgment in Shrimpton v. Rabbits(27) that
“because the landlord's wish for possession was reasonable it doesnot follow that it was reasonable for the Court to gratify it”. It must beremembered that the provision of the English statute which came upfor interpretation in that case, cast on the Courts the further duty ofascertaining whether it was reasonable to grant the relief claimed bythe landlord even if the Court was satisfied that the premises inquestion are reasonably required by the landlord.
On the 2nd question of alternative accommodation it is seen thatSoertsz, J. whilst stating that the English Act requires the availabilityof alternative accommodation to be considered, goes bn to state thatit is a relevant fact in considering the question of reasonableness.
Though our Acts do not have such additional provisions Soertsz, J.follows up by saying that what is laid down in Shrimpton v. Rabbits{supra) is that in making an order the Judge must consider thecircumstances of the tenant as wellas those of the landlord.
So that it appears that Soertsz, J. was influenced by the decision
in Shrimpton v. Rabbits {supra).
It is seen that Chief Justice Howard, in Raheem v. Jayewardene H)was of the view that the words "in the opinion of the Court" found inour section cast upon the Court a duty to satisfy itself after taking intoconsideration other matters such as alternative accommodation atthe disposal of the landlord and the position of the tenant, that therequirement is a reasonable one and went on to state that our section8(c) seems to combine the first part of S. 5(1) (d) of the Englishsection together with the words “and, in any such case as aforesaidthe Court considers it reasonable to make such an order or give suchjudgment which appears after paragraph (g) of section 5(1)".
Thus it is clear that Howard, C.J. was of the view that a landlordwho seeks to eject a tenant on the ground that the premises arereasonably required by him must first satisfy Court that he has agenuine and bona fide need of the premises and secondly that it isreasonable to make such an order granting him relief and on thatlatter burden cast on the landlord, he must satisfy Court on suchmatters as alternative accommodation at the disposal of the tenantand the requirements of the tenant.
So that the decision in Nicolle v. Abeywardene (supra) wasinfluenced by the decision in Shrimpton v. Rabbits (supra) whichinterpreted a provision in the English statute which cast upon theEnglish Courts the duty of ascertaining whether granting relief isreasonable even if the Court is satisfied that the landlord has agenuine need for the premises. Whilst in Raheem v. Jayewardene'4'Howard, C.J. was of the view that the words in the "opinion of theCourt” required Court to look into the position of the tenant.
In Ramen v. Perera(2) Cannon, J. in arriving at his decision havingdiscussed the two cases referred to, by me above, went on to statethat the words “reasonably required” would at first sight appear torequire no explanation to a reasonable person but that guidingprinciples are however desirable; Cannon, J. went on to cite areference made by Soertsz, J. in Nicolle v. Abeywardene (supra) andby Acton, J. in Shrimpton v. Rabbits (supra) that "because thelandlord’s wish for possession was reasonable it does not follow thatit was reasonable for the Court to gratify it”. This passage onlybecomes relevant in view of the latter part of the relevant provision inthe English statute which requires the Court to satisfy itself whethergranting relief to the landlord is reasonable in the opinion of the Courteven after the landlord has established that the premises arereasonably required by him. So once again we see the influence ofthe English decision in Shrimpton v. Rabbits (supra).
Then in Mohammed v. Salahudeen <3) Rose, J. has made mentionof a submission made by the landlord’s Counsel. “Now Counsel forthe Plaintiff says that having regard to the wording of this particularsubsection, which it is to be noted, is different from the English Act of1920 from which most of these Colonial Ordinances derive, the onlyelement'that the Court need take into consideration is the landlord’saspect of the matter. There is much to be said for that contention asa legal argument but it seems to me that as far as this question isconcerned the matter is covered by authority’s In this connection, Imay state that it is unimaginable to think that in 1942 whilst we werestill under British rule the legal draftsman would not have had beforehim the English statute.
Therefore it may be said that it is reasonable to infer that havingreferred the English statute, the additional provisions found therein,
suchas the need to consider the questions of alternativeaccommodation and whether it is reasonable to grant relief to thelandlord, were deliberately left out since the intention of thelegislature was that only the requirement of the landlord should beconsidered. However, on a careful study of our Rent RestrictionOrdinance of 1942 it is seen that the scheme of the English Act hasnot been followed.
The Supreme Court decisions thereafter were on these lines untilBasnayake, J. in his judgment in the case of Atukorale v. Navaratnam®looked into the decisions in this country, England and South Africa indetail in order to ascertain whether S. 8(c) of our Rent RestrictionOrdinance No. 60 of 1942 requires a Court to take into considerationthe question of the availability of alternative accommodation andalso the interests of the tenant.
Basnayake, J. dealt with the effect of the words "in the opinion ofthe Court" found in S. 8(c) of our Rent Restriction Ordinance and wasof the view that they only mean according to the judgment of thecourt or tribunal or person who has to form the opinion and in thisconnection Basnayake, J. went on to refer to the words of LordBromwell in the case of Allcroft v. Lord Bishop of London(28>. “If a manis to form an opinion and his opinion is to govern, he must form ithimself on such reasons and grounds as seem good to him” andwent on to state that the word “reasonably” make the Court the arbiterand not the landlord, and that the landlord’s ipse dixit that thepremises are reasonably required for his residence would have littlevalue unless his request is supported by evidence sufficient topersuade the Court of the reasonability of his requirement.Basnayake, J. was of the view that S. 8(c) required the Court to forman opinion whether premises are reasonably required for occupationas a residence for the landlord and that the tenant’s difficulties do notcome into the picture.
In arriving at this decision Basnayake, J. appears to have beenpersuaded by the decisions of South African Courts where S. 14(1)(c) of the Rent Act 1942 read "that the premises are reasonablyrequired by the lessor for his personal occupation or for that of hismajor or married child or children or any person in his employ andtherefore very much akin to our S. 8(c), which had repeatedly been of
the view that what the Courts have to decide is simply whether theapplicant has shown that he reasonably requires the premises for hisuse and not the question of who will suffer the greater hardship, theapplicant if the Respondent is not ejected or the Respondent if he isejected.
It was at this stage that this question came up for decision in thecase of Gunasena v. Sangaratingam Pillai& Co.g and Windham, J. inthe course of his judgment stated that he agreed with Basnayake, J.in his judgment in Atukorale v. Navaratnam (supra) in that the words“in the opinion of the Court" appearing in S. 8(c) do not affect to anyextent the interpretation to be placed on the word “reasonably” andthat these words mean that the landlord’s ipse dixit that hisrequirement of the premises is reasonable is not enough and that it isthe Court which has to decide whether the requirement is reasonable.
Therefore it is clear that the earlier decisions that the words “in theopinion of Court" requires Court to take into consideration othermatters such as alternative accommodation and the position of thetenant has not been followed. In fact Windham, J. had gone on toascertain the meaning of the words "reasonably required foroccupation of the landlord” independently of the words “in theopinion of the Court".
Windham, J. has in the course of his judgment stated that,although Basnayake, J. has in the course of his judgment inAtukorale v. Navaratnam (supra) pointed out that the English Courtsin the cases of Shrimpton v. Rabbits (supra) and Neville v. Hardymmade it clear that, if those additional provisions (namely thoseregarding availability of alternative accommodation and whether theCourt considers it reasonable to make such an order or give suchjudgment) had not been present in the English Acts, the EnglishCourts would have interpreted the words “reasonably required” tomean “reasonably” from the point of view of the landlord exclusively,but since those additional provisions were included in the EnglishActs he (Windham, J.) does not think those opinions of the EnglishJudges can be held to be other than obiter, and that they might wellhave considered the meaning of the words “reasonably required”with more deliberation had not the additional words relieved them of
the necessity of doing so. In this connection f'may also mention thattwenty eight years later Lord Justice Stephenson in the course of hisjudgment in the case of Kennealy v. Dunne m has expressed thesame view when he stated that “Those words reasonably required inthe Rent Act, in case 8 and its predecessor in earlier Acts have beengiven a less than completely objective meaning. The words havebeen limited to meaning reasonably required from the landlord’s pointof view, and not in all the circumstances including the tenant’s. Thatlimited interpretation of the words “reasonably required" has no doubtcome about because the tenant is protected by the provisions ofwhat is now S. 10(1) – that the Court – must consider the making ofan order for possession* reasonable – and by the further safeguardthat the balance of hardship must be in the landlord’s favour for himto get possession under what is now Part III of schedule 3".
Windham, J. in the case of Gunasena v. Sangaralingam Pillai(supra) has in interpreting the words “reasonably required’’ held thatit is a negation of reasonableness to take a one-sided view but thatalternative accommodation was a relevant factor, no more and noless in determining Whether the requirement of the premises for thelandlord's purposes is reasonable.
Windham, J. in Gunasena v. Sangaralingam Pillai (supra) hasinterpreted the words “reasonably required”, “unfettered by authority”and I see no reason whatsoever to justify my taking a different view.
The Supreme Court and the Court of Appeal since then, havefollowed the decision in Gunasena v. Sangaralingam Pillai (supra)except in a few cases in which this question was not dealt with indetail with reference to decided cases.
However in view of the requirement that one year's notice oftermination of tenancy be given to the tenant under the Rent Act inforce today, the position is different to what it was at the time the caseof Gunasena v. Sangaralingam Pillai (supra) was decided.
It is obvious that the sole purpose of requiring the landlord to givethe tenant one year’s notice of termination of tenancy is to enable thetenant to secure alternative accommodation. Therefore the Courts will
no longer, in my view be required to look into the questions ofalternative accommodation and comparative hardships caused toparties if alternative accommodation is not available.
In view of what I have stated above and also in view of theDefendant/Respondent’s Counsel, Mr. Samarasekara’s submissionthat when the Plaintiff/Appellant shifted his residence the requirementon which he came to Court was satisfied, the next question to bedecided in this case is whether the Plaintiff/Appellant reasonablyrequired these premises and if so did such requirement exist at thedate of institution of action and continue to exist at the time of thetrial.
Gratiean, J. in Andree v. De Fohsekam expressed the view thataccording to S.8(c) of the Ordinance No. 60 of 1942 thereasonableness of the landlord’s demand for possession must existat institution of action and must continue to exist at the time of thetrial.
In Ismail v. Herft{'S) the view was expressed that the time at whichthe conditions set out in S. 8(c) of the Rent Restriction Ordinance ofNo. 60 of 1942 must be shown to exist by a landlord is, the time whenthe Court is required to make the ejectment order, but, in a casewhere there is an appeal from such an order, the landlord whobrought the action has died before writ of ejectment has issued andbefore he has entered into possession of the premises, that theAppeal Court should likewise satisfy itself that the premises arereasonably required for the purpose set out in the plaint.
The Plaintiff/Appellant admitted in evidence that in the summary ofevidence he proposed to lead which was annexed to his amendedplaint he had set out that he required the 1st floor bearingassessment number 372 1/1, to accommodate a laboratory, anobservation room for children, and a drug-store and when inSeptember, 1977 he shifted his residence, five rooms in thebasement and ground floor became available to him for the purposeof his profession. This had happened whilst this action was pendingin the District Court. However, of those five rooms he had made tworooms available to specialists for consultation practice. It was also
admitted that consultation practice to specialists was permitted bythe Government after the institution of this action. Although thePlaintiff/Appellant has said in evidence that the drugs cannot bestored in the basement due to dampness, drugs could certainly havebeen stored on the ground floor but for his using two rooms for thespecialists. Therefore, on the Plaintiff/Appellant’s evidence, with theavailability of the five rooms in the basement and the ground floor therequirement of the 1st floor for the purpose set out in his plaint,namely, to accommodate a laboratory, an observation room forchildren and a drug-store was satisfied.
If due to consultation practice being permitted after he came toCourt, he required further space to render abetter service to hispatients then that would be a completely new purpose for whichspace is required which had arisen after he came to Court and thatpurpose would if at all have given rise to another cause of action ofreasonable requirement.
In view of the reasons given above I dismiss this appeal withcosts.
Appeal allowed.