KARUNARATNE

Vs.

KOTALAWELA

SUPREME COURT
SURASENA, J.
WENGAPPULI, J.
SAMAYAWARDHENA, J.
SC/APPEAL/17/2015
SC/HCCA/LA/463/2013
WP/HCCA/COL/257/2008/F
DC COLOMBO 9643/RE
MARCH 25, 2021

Rent Act, No. 7 of 1972, sections 22(2)(bb)(ii), 22(6), 22(7)(b)(ii)-Denial of tenancy-Applicability of the Rent Act-In what circumstances can a party present a case different from his pleadings?

The plaintiff filed action seeking ejectment of the defendant, whom the plaintiff said was her tenant, from the premises in suit in terms of section 22(2)(bb)(ii) read with section 22(6) of the Rent Act, No. 7 of 1972, and damages. The defendant filed answer stating that he was not the tenant of the plaintiff and that he had not attorned to the plaintiff upon the death of his previous landlord, the plaintiff's father. He sought dismissal of the plaintiffs action on the basis that in view of the statutory bar contained in section 22(7)(b)(ii), the plaintiff cannot maintain the action under section 22(2)(bb)(ii). In view of the admission of the defendant that he was not the tenant of the plaintiff, the plaintiff took up the position that the defendant is disentitled to the protection of the Rent Act.

The District Judge applied the statutory bar contained in section 22(7)(b) (ii) to dismiss the plaintiffs action on the ground that the protection of the Rent Act is attached to the premises and not to the tenancy. On appeal, the High Court affirmed the judgment of the District Court.

Held:

1. The protection of the Rent Act is attached to the contract of tenancy and not to the premises in suit despite the premises being technically governed by the Rent Act. If there is admittedly no valid contract of tenancy between the plaintiff and the defendant, the defendant cannot shelter behind the protection of the Rent Act. In

such circumstances, the Rent Act is wholly inapplicable and the court need not apply any of the fetters enumerated in section 22 introduced to protect tenants of rent-controlled premises.

2. Once the defendant is duly informed to attorn to the plaintiff as the new owner of the premises, the defendant has no right to insist on copies of deeds to prove the plaintiff's ownership of the premises and on that basis to refuse attornment and payment of rent to the plaintiff. If he does so, he becomes a trespasser. The defendant is a trespasser from the time he refused to attorn to the plaintiff.

3. The plaintiff gave specific evidence acceptable to court on damages in her testimony, which was not challenged by the defendant. Hence the court can safely accept the uncontroverted evidence to hold that the said matter has been proved.

Held further:

4. Although the plaintiff came before the District Court seeking ejectment of the defendant under the Rent Act, by his own conduct the defendant ruled out the application of the Rent Act. In the result, the principle of law that no party can be allowed to present at the trial a case materially different from what he has placed on the record is inapplicable.

5. An appellant cannot present on appeal a case materially different to what was presented before the trial court, unless the appeal is based on a pure question of law and not on a question of fact or a mixed question of fact and law.

Cases referred to:

1. lmbuldeniya v. De Silva [1987] 1 Sri LR 367
2. Weerasena v. Perera [1991] 1 Sri LR 121
3. Ranasinghe v. Premadharma [1985] 1 Sri LR 63 at 70
4. Beedi Johara v. Warusavithana [1998] 3 Sri LR 227
5. Gunasekera v. Latiff [1999] 1 Sri LR 365 at 370
6. Hildon v. Munaweera [1997] 3 Sri LR 220
7. YMBA v. Abdul Azeez [1997] BLR 7
8. Gnananathan v. Premaardane [1999] 3 Sri LR 301
9. Ranasinghe v. Somawathie [2004] 2 Sri LR 154
10. Candappa nee Bastian v. Ponnambalampillai [1993] 1 Sri LR 184
11. Talwatte v. Somasunderam [1996] BLR 14
12. Janashakthi Insurance Co Ltd v. Umbichy Ltd [2007] 2 Sri LR 39

13. Ham