DIAS J.—Kulawanse v. Jayaratne.Present: Dias J.
KULAWANSE, Appellant, and JAYARATNE, Respondent.S. C. 64—C. R. Colombo, 337.
Landlord, and tenant—Rent Restriction Ordinance—Acceptance of rent after-action—Waiver of notice—Question of fact.
The question whether the receipt of rent by a landlord after notice toquit and after the filing of an action amounts to a waiver of the notice to■ quit is a question of fact which depends on the circumstances of each,case.
PPEAL from a judgment of the Commissioner of Requests,Colombo.
H. W. Jayewardene, for the defendant, appellant.
J. Femandopulle, for the plaintiff, respondent.July 2, 1947. Dias J.—
Cur. adv. vult.
The plaintiff respondent sought to recover possession of premises;bearing assessment No. 121a, Galle Road, Mount Lavinia, of which the def-endant is the tenant. The plaintiff claimed possession on two grounds : —
Under section 8, proviso (b), of the Rent Restriction Ordinance,.No. 60 of 1942, on the ground that he had given the defendant noticeto quit on July 30, 1946, but that in spite of this, the defendant was inwrongful occupation ; and (b) under section 8, proviso (c), on the groundthat the premises are reasonably required for occupation as a residence forhimself. The learned Commissioner of Requests has found against thedefendant on both points.
In regard to the fh-st point, under the notice quit, the defendantshould have vacated the premises by the end of August, 1946. Thaplaintiff filed this action on September 3, 1946. Therefore, as theCommissioner of Requests holds, the plaintiff was not waiving the noticeto quit by accepting the rent for August, 1946. The plaintiff, however,admits that the defendant paid him rent until the end of January, 1947.Therefore, by accepting that rent even after he had filed action, I am ofopinion the plaintiff must be deemed to have waived the notice to quit.The Commissioner deals with this part of the case as follows. He says :
“ As notice to quit was given at the end of August, plaintiff’s acceptance-of rent for August is quite in order. It is not known when the defendantpaid the September rent. Defendant should have produced the receipt.The plaintiff filed action on September 3, 1946. Receiving rent afteraction filed is not waiver of rent ”. The evidence shows that notice toquit was not given at the end of August but at the end of July. Therewas no need for the defendant to produce any rent receipts when theplaintiff definitely stated in his evidence: “ Defendant has paid me rentto the end of January 1947. Each month’s rent was payable by thetenth of the month, but sometimes he paid it towards the end of themonth also which I accepted. I am not producing my counterfoil book of,receipts”. I do not follow the Commissioner;of Requests when he says;
DIAS J.—Kulawanse v. Jayaratne.
that the receipt of rent after action filed is not waiver of rent. InFonseka v. Naiyan AH' it was held that the receipt by the landlord ofrent after notice to quit, and after filing an action against the tenant,would amount to a waiver of the notice to quit unless, of course, thereis some specific agreement not to waive the notice. It is a question offact in each case whether there has been a waiver of the notice toquit—Virasinghe v. Peris'. In my opinion, in the circumstances of thiscase, there has been a clear waiver by the plaintiff of the notice to quit.
The burden of proof is on the plaintiff to satisfy the Court after aconsideration of all the surrounding circumstances and of the relativeposition of both the landlord and the tenant, that the need of the plaintiffis greater than that of the defendant. This matter has been consideredin a series of judgments of this Court including a decision of a bench of"two Judges in Wijemanne v. Fernando 3. The Court before coming to aconclusion must consider and discuss various matters, such as the alter-native accommodation available for the landlord and tenant; whetherinjury to the health of either party may result from an order for possessionbeing made or refused ; or whether some pecuniary loss might directlyflow from one being turned out. These are questions of major importancewhich the learned Commissioner of Requests has failed to refer to ordiscuss in his judgment.
The defendant is carrying on a school known as the Duke’sCorrespondence College in these premises and he employs a staff of clerks.There is also a printing press in the premises. Defendant says, and thereis no reason to disbelieve him, that he would shift if he was able to obtainanother suitable house. To turn him out from the premises would involvehim in severe financial loss. The Commissioner of Requests appreciatesthis for he has not ordered the immediate ejectment of the defendant.I can attach no importance to the fact that after this action was filed,the plaintiff informed the defendant that a client of his, one Jayetilleke,had a house available. The defendant says he saw Jayetilleke whodemanded an exorbitant rent and also demanded an advance of twoyears’ rent. The Commissioner of Requests dismisses this evidence withthe observation that it is unlikely that Jayetilleke would demand “ blackmarket rent ”. The rights of the parties to an action are to be deter-mined as at the date the action was filed. In this case that date isSeptember 3, 1946. The plaintiff told' the defendant about Jayetillekeon September 9, 1946—see P 1. Therefore, at the date the action wasfiled the defendant had no suitable alternative accommodation available"to him. There is no proof that he had such accommodation even at thedate of trial.
On the other hand, the plaintiff owns two houses—No. 120a of whichthe defendant is in possession, and No. 120 which is vacant althoughlet to an Excise Inspector who is said to be still paying him rent. It isto be noted that the plaintiff refrained from calling this Excise Inspectorand did not produce his counterfoil book of rent receipts from which itmight have been ascertained whether the Excise Inspector was still payingTent to the plaintiff. Furthermore, the plaintiff is living in premises
1 (1920) 22 N. L. R. 447.3 (1943) 46 AT. L. R. 139.
(1946) 47 N. L. R. 62.
CANEKERATNE J.—Edwin Singho v. Jayasinghe.
No. 313, Galle Road. He says that his landlord, one Abeyratne, has givenhim notice to quit, but the plaintiff who is a proctor and knows the valueof evidence, failed to produce the notice to quit.
Had the Commissioner of Requests considered the position of the twoparties in the light of the principles laid down for his guidance, he wouldhave come to the conclusion that the defendant’s need was far greaterthan that of the plaintiff.
I set aside the decree appealed against and dismiss the plaintiff’s actionwith costs both here and below.
KULAWANSE, Appellant, and JAYARATNE, Respondent