Law and Citizen 

Can he sublet?

By Dr. C. Ananda Grero 

After some time, citizen Aponso, the tenant gave out of the hall to various people from time to time to have wedding receptions without obtaining permission from the landlord, citizen Fernando. The landlord annoyed about this questioned the tenant but he ignored the issue and did not give a proper answer. 

Citizen Fernando through his lawyer gave a notice to quit the premises on the grounds that the tenant Aponso had sublet part of the premises in contravention of Section 10(1) of the Rent Act. However, the tenant did not leave and the landlord instituted an action in the District Court of Panadura and prayed that the defendant tenant be ejected from the premises. The defendant denied that he had sublet the premises and moved that the plaintiff's (citizen Fernando's) action be dismissed. After trial, the District Judge held that subletting part of the premises had been established and he gave judgment in favour of the plaintiff, citizen Fernando. 

The defendant tenant Aponso appealed against this judgment to the Court of Appeal. which after hearing the appeal dismissed it and affirmed the judgment of the District Judge. Aponso then made an appeal to the Supreme Court. 

A similar case came up before three Judges of the Supreme Court, namely Justices Atukorale, Collin Thome and the Chief Justice Sharvananda. This case, Grace Warnakulasinghe Vs. S. Subramanium is reported in the Colombo Appellate Law Reports, 1986, Volume I - Part V on page 569. The counsel for the appellant (like Aponso) argued, that even assuming that they (i.e., those who took the hall for wedding functions) were exclusive users of part of the premises for their functions on payment of money, still, their occupancy was not in consequence of a contract of tenancy or sub-tenancy but was in pursuance of a licence given to them by the appellant (like Aponso), falling short of sub-letting. Further it was argued by the counsel for the appellant that the parties took the hall for receptions temporarily and the tenant (Aponso) did not have the intention to enter into a contract of tenancy or sub-tenancy. 

Justice Atukorala who wrote the judgment referred to the relevant provisions of the Rent Act as stated in Section 10(1) of the Act. He was of the view that one has to decide whether there had been sub-letting or not, on the basis of the said provisions of the Rent Act. The relevant provisions are: 

(1) Any part of premises shall be deemed to have been let or sublet to any person, if and only if such person is in exclusive occupation, in consideration of payment of rent, of such part, and such part is a defined and separate part, over which the landlord or tenant, as the case may be as for such time being relinquished the right of control. But no person shall be deemed to be the tenant or the sub-tenant of any part of any premises by reason solely of the fact that he is permitted to use a room or rooms in such premises; 

(2) The tenant of any premises, shall not sublet any part of the premises to any other person, without the prior consent in writing of the landlord. 

Having mentioned the provisions of Section 10(1) of the Rent Act, Justice Atukorale observed that the said Section shows two criteria for determining whether in law there is a letting or subletting of a part of premises. They are firstly, that the occupant must be in exclusive occupation of part in consideration of the payment of rent, and secondly that the part must be a defined and separate part which the landlord or the tenant (as the case may be) has for the time being relinquished his right of control. If these two criteria are satisfied, the law deems the existence of a letting or a subletting as the case may be. He finally held that applying the above test to the facts and circumstances of this case (i.e., the case that came up before Court) he was of the view that the trial Judge (District Judge) and the Court of Appeal were both correct in concluding that the appellant (like Aponso) sublet a portion of the premises to the parties concerned for the purpose of holding their respective wedding receptions. He affirmed the judgment of both Courts i.e., the District Court and the Court of Appeal and dismissed the appeal of the appellant tenant (like Aponso) with costs. 

Based on the aforesaid judgment, the provisions of Section 10(1) of the Rent Act, and facts of the case, it is crystal clear that the tenant Aponso had sublet a part of the premises for the holding of wedding receptions in that part, namely the hall. He had not obtained the consent of the landlord, Fernando in writing as required under Section 10(1) of the Rent Act. The facts show that part of the premises were given to have wedding receptions in consideration of the payment of rent to Aponso. Once the hall is given to some party to have the wedding reception, the tenant Aponso relinquishes his right of control to that part of the premises. The person who has taken the hall on rent during the period of the reception is in exclusive occupation of it and at his invitation, guests come to the hall. Thus, one can see citizen Aponso has sublet a part of the premises contrary to the provisions of Section 10(1) of the Rent Act and he is liable to be ejected from the whole premises. Aponso cannot succeed in his appeal. 

(Names are fictitious)

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