ZAROOHA ZUHAIR

VS

JAYATUNGA

SUPREME COURT
EVA WANASUNDERA.PC,J
B.P.ALUWIHARE.PC.J.
UPALY ABEYRATHNE, J.
SC (LA) APPEAL 165/14
SC HCCA LA NO. 230/2012
CP HCCA KAN 69/20177(FA)
D.C.KANDY NO. 16773/L
21.09.2015.

Fire-Destruction of premises- Tenancy - Land Lord and Tenant- Contract of Tenancy - Termination of contract - no building to occupy.

A fire broke out on 29-6-1991 in the city of Kandy. As such number of business premises in the Yatinuwara Veediya sustained damage. Numbers 4 & 6 of Yatinuwara Veediya were owned by the Original Plaintiff. Both premises were rented at the time of fire. Defendant engaged in business was the Tenant.

Learned District Judge after trial held with the plaintiff that tenancy has come to an- end. In Appeal the High Court allowed the appeal of the Defendant Tenant. Leave to appeal granted by the Supreme Court.

HELD:

1. The evidence is that Defendant has never surrendered the possession of the premises and on the Plaintiffs own admission; he (the Defendant) commenced his business activities after two days of the occurrence. There is also evidence that the ground floor of the building was not affected due to the fire.

When one considers the totality of the evidence, I am of the view that the Plaintiff has not established that the building was destroyed to an extent where the Defendant was unable to exercise his rights, as a tenant.

Considering the above, the Judges of the High Court of Civil Appeal cannot be faulted for concluding, in the light of the evidence that the tenancy has not come to an end as a result of the fire.

Cases Referred to:

1. Giffrry Vs. De Silva 69 NLR 281
2. Samuel Vs. Mohideen 71 NLR 451
3. Abeysinghe Vs. Abeysekara 1995 2 SLR
4. H.W. Tambiah (Landlord and Tenant 1st Edition 158)
5. Wiile (Landlord and Tenant 4th Edition page 249)
6. Dr. Wijeydasa Rajapaksha - Law of Property Vol. IV Landlord and Tenant pg. 204)
1. Rohan Sahabandu, PC for the substituted - Plaintiff- Respondent -Appellant
2. Harsha Soza, PC with Upendra Walgampaya for the Defendant -Appellant - Respondent

Cur.adv.vult.

August 04,2017,

BUVANEKA ALUWIHARE, PC, J.

On or around 29th June, 1991, a fire broke out in the city of Kandy and as a result number of business premises along Yatinuwara Veediya had sustained damage. Two of these premises were Nos. 4 and 6, Yatinuwara Veediya which were owned by the original Plaintiff Mohammed Javad Marrikkar. Both these premises had been given out on rent, and at the time of the fire the defendant who was engaged in business was the tenant.

The position of the original Plaintiffs was that the building had been so extensively damaged that it could not be used without effecting repairs and the tenancy had come to an end. On that basis the Plaintiff filed an action in the District Court seeking a declaration that the tenancy of the Defendant had come to an end and also sought an order for the ejectment of the Defendant from the rented premises. After trial, the learned District Judge held with the Plaintiff and granted the relief sought in the plaint.

Aggrieved by the said judgment, the Defendant appealed to the High Court of Civil Appeal, Kandy and the learned judges of the High Court of

Civil Appeal, by their judgment dated 17th May, 2012, allowed the appeal of the Defendant. While the matter was pending before the District Court the Plaintiff had died and the daughter of the Plaintiff had been substituted in room and place of her father.

Aggrieved by the judgment of the High Court of Civil Appeal, the substituted- Plaintiff-Respondent (hereinafter referred to as the Substituted-Plaintiff)-sought leave to appeal from this Court and leave was granted on the following questions of law.

(i) Did the learned High Court Judges err in holding that for the contract of tenancy to come to an end, the entire building had to be completely destroyed by the fire?

(ii) In the circumstances of the case has the contract of tenancy c