Canthiah V. Muttiah Chetty

1915. Present  : Ennis J. and De Sampayo A.J.

CANTHIAH v. MUTTIAH CHETTY.

110-C. R. Colombo, 42,284.

Evidence Ordinance, s. 92-Lease of houses and grounds-May oral evidence be led to prove that house was leased to be used as a rice store ?-House prohibited to be used as a rice store by authorities-Cancellation of lease-Remission of rent.

Plaintiff brought this action to recover rent due on a notarial lease. The defendant pleaded that prior to the execution of the lease it was agreed between the parties that the plaintiff should effect certain alterations to the premises so as to fit them for a rice store, and lease the same to defendant, and that after the lease was executed, in consequence of certain plague regulations, the defendant was prohibited by the authorities from storing rice in the said premises. There was no provision in the deed to indicate the purpose for which the premises were to be used. The defendant prayed in reconvention that the deed of lease be cancelled, and he be declared entitled to a remission of all rent payable thereunder.

Held, that it was not open to the defendant to lead oral evidence to prove that both parties agreed and intended that the premises should be fit for and be used as a rice store.

THE facts, are set out in the judgment of De Sampayo A.J.

Bawa K. C. (with him J. S. Jayewardene), for appellant.-The defendant is a trader in rice, who advanced large sums of money

to the plaintiff to enable him to convert the premises leased into a rice store. The defendant is Unable, through no fault of his own, to have commodious use of the leased premises. The Roman-Dutch law under such circumstances not only permitted a recision of the rent due, but also a cancellation of the lease. (Voet 19, 2, 23.) Among the just causes for quitting, Voet mentions (a) incursion of the enemy or brigands whom the tenant could not resist, (b) spectres haunting houses, and pestilence.

In the present case it was the outbreak of plague which induced the authorities to prohibit the use of the rice store as such. [Ennis J.-But the deed does not speak of a rice store; it says " houses and grounds."]

The defendant is entitled to prove, under section 92, sub-section (2) of the Evidence Ordinance, that the parties contemplated a particular mode of use of the " houses and grounds." It is a matter upon which the deed is silent, and not inconsistent with its terms. Counsel cited Wille on Landlord and Tenant, pp. 402 and 403; L. R. 10 Q. B. 174.

Arulanandam (with him A. St. V. Jayewardene), for respondent.-If in the converse case the landlord had sued for a cancellation of the lease, on the ground that through some unforeseen cause rental in that locality had trebled and that the leased premises could be put to an infinitely better use than a rice store, the Court would not grant him relief. Why, then, should the lessee be entitled to relief ?

Vis major has only prevented the tenant from using the house as a rice store. All that the landlord is bound to do is to assure to the tenant the commodious use of the premises. The tenant is free to use the store for any other purpose but storing rice. If he has nothing else to store, there is nothing to prevent him from sub-letting the premises.

The case is covered by authority (8 N. L. R. 315). The oral evidence sought to be led is not merely explanatory of " houses and grounds," but seeks to add to the terms of the notarial lease. This is repugnant to the provisions of section 92.

Bawa, K.C., in reply.

Cur. adv. vult.

May 7, 1915. ENNIS J.-

In this case the plaintiff sued for the recovery of Rs. 116.50, rent due on a lease of certain property in Bankshall street. There is no evidence in the case, which has been decided on the averments of fact in the plaint and answer. The plaint avers the plaintiff leased to the defendant an undivided half share of certain " houses and grounds " in Bankshall stre

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