FERNANDO VS. PERERA

SUPREME COURT
TILAKAWARDANE J.
DEP P.C.J.
EVA WANASUNDERA PC. J.
SC APPEAL 80/2010
SC HCCALA 261/09
WP/HCCA KAL-106/02 (F)
DC PANADURA 341/RE
JUNE 17, 2013

Rent Act No. 7 of 1972- Section 22 (1) [d] Deterioration?- What is structural alteration-Reparation of roof- improvement?- Decline value- Does it come within deterioration - Duty of the tenant to take proper care- Expert Evidence.

The plaintiff-respondent sought the eviction of the tenant appellant from the premises in question on the ground that the condition of the premises had become deteriorated owing to acts committed by the appellant- Section 22(1) (d). Judgment was entered in favour of the appellant in the District Court- the High Court set aside the said judgment. The Supreme Court granted leave to appeal on the issue whether the repairs made by the appellant tenant caused deterioration to the premises and whether replacement of Sinhala tiles with asbestos sheets caused deterioration of the premises.

Held:

(1) Expert evidence is a fundamental necessity upon which the question of whether the repairs amount to deterioration or improvement remains.

(2) The replacement of tiles with asbestos cement sheets and the reduction of the height of the walls by two feet amount to a structural alteration.

Per Eva Wanasundera. P.C. J

"On face value, the repair appears to be in the form of an improvement because it involved the reparation of the roof.........., In the present case whether it was a useful repair is contested, as

the alteration, has in fact damaged the building with at least 2 ft of the wall being demolished to align the asbestos sheets, thereby changing the external appearance of the premises for the worse­ this Court sees sufficient evidence of damage to ascertain the inapplicably of the above dicta".

(3) The act of making worse the premises has not been restricted to physical alteration only; value could be included in this definition for given the present status of the premises the value being reduced also contributies to making worse the premises in terms of its commercial worth should the respondent wish to lease the property to another or sell especially when accounting for the value it accrues as it ages. The respondent would have to incur further financial burden in order to restore the premises to its former state as presently, the premises appear unfinished and Court finds that the reduction of the value of the premises amounts to making worse the premises.

Per Eva Wanasundera. P.C. J

"It is the duty of the tenant to take proper care of the leased property, to use it for the purpose for which it was let and for no other purpose and on the termination of the lease, to restore the property to the landlord in the same condition in which it was delivered to him reasonable wear and tear excepted".

APPEAL from the judgment of the High Court [Civil Appellate] Western Province.

Cases referred to:-

(1) A.C.T. Construction Ltd vs. Customs Excise Commissioners 1982- 1 All ER 84

(2) Barakathulla vs. Hinniaappuhamy- 1982 2 Sri LR463 (distinguished)

(3) Musthapa Thamby Lebbe vs. Ruwanpathirane 1982 2 Sri LR 463

(4) De Zoysa vs. Victor de Silva [1970) 73 NLR 576

(5) Dr. Alwis vs. Wijewardene - 1959 59 NLR 36

(6) W.A.S. De Silva vs. L. Gooneratne 1 MLR 6 Distinguished

Rohan Sahabandu, P.C. for defendant-respondent-appellant.

Ikram Mohamed P.C., with M.S.A. Wadood and Milhan Ikram Mohamed for plaintiff-appellant-respondent.

October 10, 2013
EVA WANASUNDERA. PC.J.

Leave to appeal was granted by this Court, in order to enable an Appeal against the judgment of the Western Province Civil Appellate High Court Holden in Kalutara dated 10.09.2009, on 04.08.2010 on the following questions of law as enumerated in paragraph 21 (a), (b) and (c) of the Petition dated 13.10.2009:

1. Has the repairs made by the Defendant caused deterioration to the premises in question wh