Bandara Menika v. De Silva
Present: Gunasekara, J., and T. S. Fernando, J.BANDARA MENIKA and another, Appellants, and
K.V. G. DE SILVA, Respondent
S. C. 346—D. 0. Kandy, 5,667 M. R,
Bent Restriction' Act—Excess rent—Action for recovery—Prescription—-Computationof prescriptive period.
Where money is pud by a tenant in excess of the authorised rent, a causeof action accrues to him immediately on the payment of the money. Therefore,the remedy of recovery of the excess sum becomes prescribed after a period ofthree years from the date of payment of that sum.
Wijesekera v. KanapathipUlai (1954) 55 N. L. R. 575 and Munidasa v. RichardAppuhamy (1955) 57 N. L. R. 108, distinguished.
T. S. FERNANDO, J.—Bandara Menika v. Tie 80*>a283
i^-PPEAL from a judgment of the District Court, Kandy.
H. W. Jayetoardene, Q. G., with G. D. 8. Siriwardene and P. Banctsinghe,for the defendants-appellants.
Sir Lalita Bajapakse, Q. C., with W. D. Gunasekera, for the plaintiff-respondent.
Cur. adv. vult.
December 6, 1956. T. S. Fernando, J.—
The plaintiff instituted this action on 5th May 1954 against thedefendants, his lessors, for recovery of a sum of Rs. 2,667 ■ 95 which healleged had been received by them in excess of the authorised rent ofcertain premises leased out to him. It would appear that by an indentureof lease entered into between the parties on 23rd October 1945 thedefendants leased to the plaintiff the premises referred to above for aperiod of ten years commencing on 1st January 1946 on the plaintiffpaying them a sum of Rs. 9,000 by way of rent for the full term of tenyears, the sum being arrived at on the basis of a rental of Rs. 900 perannum. The full sum of Rs. 9,000 was paid to the defendants at thetime of the execution of the lease, viz., on 23rd October 1945.
It is not disputed that the authorised rent of the premises for each ofthe years commencing from 1946 was less than Rs. 900. The aggregateof the authorised rent for the premises for the ten years 1946 to 1955 wasalleged by the plaintiff to be Rs. 6,322*05, but it is interesting to notethat in computing this aggregate sum the plaintiff has on 5th May 1954(the date of the institution of this action) assumed that the authorisedrent for the following year 1955 will be the same amount as for 1954.The defendants, while not disputing the correctness of the quantum ofthe authorised rent relied on a plea of prescription to defeat the plaintiff’sclaim. The learned District Judge, holding that the difference betweenthe rent paid (Rs. 2,700) and the authorised rent (Rs. 1,935*80) for thethree years prior to the institution of the action was recoverable, hasawarded judgment in favour of the plaintiff for a sum of Rs. 764*20 withcosts in that class.
The learned judge has stated that, as the authorised rent for the entireperiod of the lease was not ascertainable at the time the lease was executedand as the authorised rent for any premises in respect of any particularyear can be ascertained only after the local authority has made its annualassessment of the premises, the cause of action that accrued to the plaintiffat the date of the execution of the lease was a claim for recovery of theamount he had paid to the defendants in excess of the authorised rentfor the year 1946. He has added that in every year of assessment a causeof action arose to the plaintiff to claim the excess paid over the authorisedrent for that particular year. It was for these reasons that he held thatthe excess paid over the authorised rent for the three years prior to the
T. B. FEJtNANDO, J.—liandara Menika v. Ue Silva
institution of the action was recoverable, a claim for the recovery of theexcess paid in respect of the period anterior to these three years beingbarred by the provisions of the Prescription Ordinance. I am of opinionthat the line of reasoning followed by the learned judge in adjudicatingon the issue of prescription in this case is not correct. The first questionthat arose in my opinion was whether the rent was recovered or receivedat the time the parties entered into the contract, i.e. on 23rd October1945. If the rent was recovered or received, as undoubtedly it was, andwas in excess of the authorised rent, then in my opinion a cause of actionto recover the whole of the excess sum accrued to the plaintiff immediatelyon the payment of the money on 23rd October 1955. As this actionwas filed only on 5th May 1954, more than eight and a half years afterthe payment, it is clearly barred by the provisions of the PrescriptionOrdinance. The fact that the authorised rent for the several yearscovered by the lease was not ascertainable with precision until theassessments for those years by the local authority were complete did notstand in the way of the plaintiff maintaining an action for the recoveryof the excess rent as computed on the 1945 basis.
Learned counsel for the plaintiff relied on section 15 of the BentRestriction Act, No. 29 of 1948, in support of his contention that theplaintiff is entitled to recover the excess rent paid for a period of threeyears prior to the date of this action, and has referred us to the decisionsof this Court in Wijesekera v. Kanapathipillai1 and Munidasa v. RichardAppuhamya. These decisions however relate to the question of theappropriation of overpayments of rent where a tenant was sought to beejected by the landlord on an allegation that the tenant was in arrearsof rent and have no application to a case like the present one where thetenant is suing for the recovery of an amount alleged to have been paidin excess of the rent due. It is sufficient to point out that in Wijesekerev. Kanapathipillai (supra), Pulle J. stated that the remedy of recovery ofexcess rent was not available after a period of three years from the date ofpayment of the, excess amount. In the present case it is impossible to denythat the date of payment of the excess amount was 23rd October 1945.
The defendant’s plea of prescription is entitled to prevail, and theappeal must be allowed and the plaintiff’s action dismissed with costs inboth courts.
GtrNASBKARA, J.—I agree.
1 (1954) 55 N. L. R. 575.
(1955) 57 N. L. R. 108.
BANDARA MENIKA and another, Appellants, and K. V. G. DE SILVA, Respondent