041-SLLR-SLLR-1986-V-1-FERNANDO-v.-BERNIE-DE-SILVA.pdf
406
Sri Lanka Law Repons
11986) 1 SriLR.
FERNANDO
v.BERNIE DE SILVA
SUPREME COURT.
WANASUNDERA. J.. RANASINGHE. J. AND L. H. DE ALWIS. J.
S.C. APPEAL No. 76/85. C.A. (L.A. No. 29/82).
D.C. PANADURA No. 16657.
FEBRUARY 5, 1986.
v»
Landlord and tenant-S. 22(3)(c) Rent Act No. 7 of 1972-Tender of arrears of tpnt bydeposit in Coun to the credit of the case-Issues-Judgment-Ss. 146(2), 184ll) and187 Civil Procedure Code.e
Where the only issue in the case was whether because of the fact that the defendanthad deposited the arrears of rent to the credit of the case before the service ofsummons, the plaintiff could proceed with the action in view of section 22(3) ^c) of theRent Act of 1972 and the court was of the opinion that the deposit of the arrears inCourt, did not amount to tender of arrears to the landlord within the meaning of theprovisions of the said section 22 (3) (c) the District Judge should have entered judgmentdismissing the action in final disposal of the action and not enter as he did aninterlocutory order-
There was no need to have raised a consequential issue asking for judgment as it hadbeen prayed for in the plaint and in the written submissions of plaintiff. If the District. Judge thought such an issue was necessary he could have framed it under section146(2) of the Civil Procedure Code and answered it in favour of the plaintiff.
The District Judge was bound to enter a proper judgment in terms of s. 184(1) and187 of the Civil Procedure Code dismissing the action.
APPEAL from judgment of the Court of Appeal.
Nimal Senanayake. P.C. with Kithsiri Cunaratne and Miss S. M. Senaratne forplaintiff-appellant.
D. Wikramanayake for defendant-respondent.
cur. adv. vult.
March 4. 1986.
L. H. DE ALWIS, J.
This is an appeal, with the Special Leave of this Court, from thejudgment of the Court of Appeal, dismissing the appeal and affirmingthe order of the District Judge of Mt. Lavinia and remitting the case to
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Fernando v. Bernie De Silva (L. H. De Alwis. J.)
407
the District Court for determination, the District Court had answeredthe only issue raised in the trial against the defendant, holding that theaction could be maintained.
This was an action instituted by the plaintiff on 27.1.1980 againstthe defendant for arrears of rent in a sum of Rs. 825 from March1977 up to April 1978 at the rate of Rs. 75 per month and ejectmentfrom the premises in suit.
The defendant filed aqswer on 9. 1.80 and at the commencementof the trial the following'admissions were recorded•>
Tenancy under the plaintiff.
<8
Rent at Rs. 75 per month.
Notice to quit.•
Receipt by the plaintiff of a deposit note dated 7.5.80 that thedefendant had deposited the money.'
A sum of Rs. 825 has been deposited.
The sum of Rs. 825 has been deposited in Court as arrears ofrent.
• 7. The monthly rental of Rs. 75 was deposited with theCommissioner of National Housing from March 1977 up toJanuary, 1 978.
Further rent was deposited with the Commissioner of NationalHousing in view of his letter dated 25.9.77.
Acceptance of letter dated 21.4.78 (D2).
It is then recorded that parties state that since arrears of rent is aquestion of law, they wish to tender written submissions, (that is.without leading oral evidence).
The defendant then raised the single issue in the trial, which haserroneously been recorded as admission No. 10. It runs as follows: 1
1 Since the sum of Rs; 825 which the plaintiff-states is arrearsof rent, has been deposited to the credit of the case prior to20.5.80. can the plaintiff proceed with this action in view ofsection 22(3){c) of the Rent Act of 1972?
408Sri Lanka Law Reports(1986] 1 Sri L.R.
The relevant portion of section 22(3) of the Rent Act No. 7 of1972, reads as follows: –
"The landlord .of any premises referred to in subsection
(1)shall not be entitled toproceed with, any actionfor
the ejectment of the tenant of such premises on the ground that therent of such premises has been in arrears for three months ormoreafter it has become due-
(c) if the tenant has, on or before d'.he date fixed, in suchsummons as is served on him. as the date on which he shall
appear in court, in respect of such actiontendered to
the landlord all arrears of rent."( The emphasis is mine).
The decision of the District Judge related to the interpretation of theword "tender" in the context of the section. Subsection (1) referred toabove relates to premises the standard rent of which for a month doesnot exceed one hundred rupees. It is applicable to these premises, theadmitted rent of which is Rs. 75 per month. Under this subsection,one of the grounds, viz (a) provides for instituting an action forejectment of the tenant where rent has been in arrears for threemonths or more, after it has become due.
Under section 22 (3) (c) a tenant against whom an action for arrearsof rent and ejectment has been instituted, is afforded an opportunity oftendering all the arrears of rent to the landlord,on or before thesummons returnable date. In the present case summons wasreturnable on 20.5.80 and the defendant deposited the arrears to thecredit of the case on 5. 5. 80. The tenancy, arrears of rent, notice toquit and the deposit of the arrears are admitted by the parties. Thedefendant then raised the issue as set.out above as to whether theplaintiff could proceed with the action in view of the deposit of thearrears, in terms of section 22(3)(c) of the Rent Act of 1 972.
The learned District Judge took the view that the deposit of thearrears of rent in court did not amount to a tender of the arrears to thelandlord and answered the issue to the effect that the plaintiff "canproceed with the action". This is the English version of the judgmentwhich is in Sinhala. He was obviously quoting the language of section22(3) of the Rent Act when he used the above words within invertedcommas.
SCFernando v. Bernie De Silva (L. H. De Alwis, J.)409
Learned counsel for the appellant contended that having come tothe conclusion that there was no tender of all the arrears of rent to theplaintiff by. the defendant in terms of section 22(3) (c) of the Rent Act,the learned District Judge should have entered judgment for theplaintiff as prayed for. He also argued that the Court of Appeal erred inupholding the judgment of the District Judge because noconsequential issue asking for judgment had been raised, and that ifjudgment was entered it would have deprived the defendant of raisingany further issues, or as counsel for the respondent submitted beforeus, of even amending hi?answer, thereafter-.
Counsel for the appellant contended that once the District Judgehad cdhne to a finding that the defendant was in arrears of rent therewas no 'alternative left for him but to enter judgment for the plaintiffThere was nothing more left for the plaintiff to prove in his case, inview of the recorded admissions, which supplied the-necessary proolof the matters entitling her to judgment. I agree with the learnedcounsel for the appellant., …
The judgment that the District Judge entered was regarded as aninterlocutory order because it did not give finality to the matter in issuebetween the parties. This was due to the District Judge employing thesame language as section 22(3), in entering judgment. The finding ofthe District Judge under this section in this case should have resultedin a conclusion of the action, one way or another.. If, for instance, thedefendant succeeded in establishing that he paid the plaintiff thearrears of rent in terms of section 22(3) (c), the judge would havebeen bound to enter judgment dismissing the plaintiff's action.Similarly, if the defendant failed to establish the payment of all arrearsof rent in terms of the section, and no. other matters had been raised inissue between the parties, the District Judge was obliged to enterjudgment for the plaintiff, in this case there were no other matters inissue between the parties that had to be resolved, in view of theadmissions recorded before commencement of the trial. The onlymatter put in issue was the question of arrears of rent, and that wasanswered in the plaintiff's favour. The learned District Judge shouldaccordingly have entered judgment for the plaintiff. There was noneed to have raised a consequential issue asking for judgment as ithad been prayed for in the plaint'and also in the written submissions –
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Sri Lanka Law Reports
[1986] 1 SriL.R.
tendered by plaintiff's counsel in the District Court. If, however, theDistrict Judge thought that such an issue was necessary it was hisduty to fjave framed such an issue under section 146(2) of the CivilProcedure Code and then answered it in favour of the plaintiff.
As the learned counsel for the appellant contended, the learnedDistrict Judge was bound to enter a proper judgment in terms ofsections 184(1) and 187 ot the Civil Procedure Code after heanswered the only issue raised in the case in the plaintiff s favour. Itshould have been a judgment which gave finality to the action and onwhich a decree under section 188 could have been entered. Thejudgment on the other hand that the District Judge pronounced,"tookthe form of an interlocutory order on which a decree could net havebeen: ef/ered. The learned District Judge appears to have been ledinto this error by endeavouring to follow the language of section 22 (3)of the Rent Act of 1972.
A submission was made that on the judgment entered by theDistrict Judge, the trial would have continued and the defendantwould have been entitled to satisfy the court under section 22 (5) thatthe rent was in arrears on account of "other sufficient cause," namelythat he had erroneously deposited it in court.
But this vyas a.'defence' on which the defendant could have raisedan issue'at the trial but chose not to do so. In fact he raised it in hiswritten submissions tendered in the Disctrict Court and has not beengiven the relief'he sought.
In my view no prejudice will be caused to the defendant if theDistrict Judge is directed to enter a final judgment in the action on theproceedings held by him. When such a judgment is entered it will beopen to the defendant, if he so wishes, to canvass the correctness ofthe District Judge's finding on the question that the deposit of thearrears of rent to the credit of the case does not amount to a tender ofthe arrears to the plaintiff landlord in compliance with section 22(3)
of the Rent Act.
I therefore set aside the judgment of the District Court and of theCourt of Appeal and direct that the record be remitted to the District. Court to enable the District Judge to pronounce a proper judgment onth'e findings he had reached in the proceedings held before him, afternotice to the parties, and then to enter decree in accordance with thejudgment.
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Fernando v. Bernie De Silva (L. H. De Alwis, J.)
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The plaintiff-appellant will be entitled to costs in this court and in theother two courts below.,
WANASUNDERA, J. – I agree.
RANASINGHE, J. – I agree.
Judgment set aside. Record remitted to District Judge to pronouncejudgment, after notice, on his findings.