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KARUNARATNE HAMINE v. FERNANDO et al.
NLR25V159
Present: De Sampayo A.C. J. and Garvin A. J. 1923.
KARUNARATNE HAMINE v. FERNANDO
et al. 83-D. C. Galle, 19,934.
Lease-Covenant to keep land regularly weeded-Breach of covenant- Action for
damages and cancellation-Is lessor of rural property restricted to action for
damages only--Power of Court to grant both cancellation and damages.
Plaintiff brought this action for cancellation of lease and damages alleging
that his lessee had failed to carry out a covenant to keep the land weeded
regularly. It was contended for the defendant that a lease of rural property
cannot be cancelled at all, and that the only remedy the lessor had was to ask
for damages, and further that, in any event, the Court could not grant both a
cancellation of the lease and a judgment for damages.
Held, that the lessee was not restricted to a claim for damages, and that he was
entitled for damages for past acts and for cancellation of the lease.
THIS
was an action for the cancellation of a lease of a cinnamon plantation on the
ground of failure to pay the rent regularly and failure to weed the land
annually, and for the recovery of Rs. 300 as damages due to the alleged failure
to weed, and also for the recovery of one of the instalments of rent due.
The defendants brought into Court the instalment of rent sued for and pleaded
that they had weeded the land regularly, and denied that the plaintiff sustained
any damage.
The District Judge decided in favour of the plaintiff, and directed the
cancellation of the deed of lease and the payment of Rs. 300 as damages.
The defendants appealed.
J. S. Jayawardene, for defendants, appellants.
F. de Zoysa (with him C. W. Perera and Amarasekera), for plaintiff, respondent.
April 25, 1923. DE SAMPAYO A.C.J.-
The plaintiff is the proprietor of a cinnamon land. In May, 1919, he leased it
to the defendants for a period of five years at a stipulated rent. In the lease
it was provided that the defendants should weed and clear the land on taking
over possession, and thereafter weed and clear the land regularly once a year
during the currency of the lease. The plaintiff brought this action in
September, 1922, alleging that the defendants had failed to clear the land since
the
first clearing on the execution
of the lease, and that in consequence serious damage and loss had been caused by
the defendants, and he asked for damages for the past loss and also asked for a
cancellation
of the lease. The District Judge's finding on the facts is that the defendants
not merely committed a breach of the covenant to weed the land, but their
neglect was so serious that it caused permanent deterioration and destruction of
the property. This finding is quite supported by the evidence in the case. It
would seem that in 1922, when this action was brought, the jungle and weeds on
the land were higher even than the cinnamon bushes and much above the height of
a man. It is also shown that by reason of this neglect about 300 bushes per acre
had been killed off. I think the District Judge's finding not only is correct on
the question of fact, but the plaintiff is rightly held entitled to a
cancellation of the lease.
Mr. J. S. Jayawardene, for the defendants-, has argued that under the
Roman-Dutch law a lease of rural property cannot be cancelled at all, and that
the only remedy for a landlord is to ask for damages. I do not think the
citations made by him support his contention. On the contrary, the last of the
authorities he cited, namely, the case of Silva v. Obeysekera [1 (1922) 24 N. L. R. 97.] decided that
it is always a question for the Court as to whether any particular abuse of the
leased property might be more appropriately dealt with by damages only, or by a
cancellation of the lease. The District Judge has thought, and I think he is
right, that the circumstances of the case call for the cancellation of the
lease. Then it is argued that the Cou
