Dias v. Gomes
1954Precent: Nagalingam A.C.J., Pulle J. and Swan J.M. M. DIAS, Appellant, and P. VINCENT GOMES, RespondentS. G. 28—C. R. Colombo, 39,638
Rent Restriction Act, No. 29 of 1948—Section 13 (1) (a)—Rent in arrears—Tender
of it I efore institution of action—Landlord's right to eject tenant.
By section 13 (1) of the Rent Restriction Act :—
“ Notwithstanding anything in any other law, no action or proceedingsfor the ejectment of the tenant of any premises to which this Act applies shallbe instituted in or entertained by any Court, unless the Board, on theapplication of the landlord, has in writing authorised the institution of suchaction or proceedings :
Provided, however, that the authorisation of the Board shall not bonecessary, and no application for such authorisation may be entertained bythe Board, in any case where—
rent has been in arrear for one month after it has become due ; or
Held, that once a tenant has been in arrear of rent for one month after ithas become due he forfeits the protection given to him by the Act againstbeing ejected. He cannot regain the protection by the mere act of tenderingthe arrears before the institution of the action.
George v. Richard (1948) 50 1ST. L. R. 128, overruled.
PPEAL from a judgment of the Court of Requests, Colombo. Thisappeal was referred to a Bench of three Judges in view of
certain conflicting decisions.
H. W. Tambiah, with V. Ratnasabapathy, for the plaintiff appellant.—This appeal raises the question as to the interpretation of section 13 (1) (a)of the Rent Restriction Act of 1948. The phrase “ has been in arrearfor one month after it became due ” denotes a period of time when therent has been in arrear. The two termini of this period are (1) the timewhen rent became due and (2) one month after it became due. Once thetenant is in arrear for the period there is a vested right in the landlordto bring an action which can only be taken away by waiver. Thesub-section does not state that the tenant has been in arrear till actionis brought.
George v. Richard1 purported to follow Bird v. Hildage2.Section 13 (1) (a) of our Act is entirely different from the correspondingEnglish statute. Under the English Act a discretion is given to the Judgeto dismiss the action of the landlord or to stay proceedings against atenant even where the tenant has been in arrear up to the date of action.See Gill v. Luck3, Crate v. Miller4, DeUenty v. Pellow5. Under ourstatute no discretion is given to Court when tenant is in arrears. Further,according to the wording in the English statute no action shall be brought
1 (1948) 50 N. L. R. 128.2 (1924) 93 L. J. K.’b. 60.
2 (1947) 2 A. E.R. 7.■* (1947) 2 A. W. R. 47.
(1951) 2 A. E. &. 716,
2J. N. B 35134-1,532 (4/54)
Dias v. Gomes
when the tenant has been in arrears. Bird v. Hildage correctly interpretedthe English statute, but it cannot be relied upon whep, the wording ofour statute is different from that of the English statute.
Section 7 of the Increase of Rent and Mortgage Interest' (Restrictions)Act, 1920 (10 and 11 Geo. 5, c. 17) states, “ It shall not be lawful forany mortgagee under a mortgage to which the Act applies so long asinterest at the rate permitted under the Act is paid and is not morethan 21 days in arrear …. to call in his mortgage or to takeany steps for exercising, any right of foreclosure Where thb mortgagorwas in arrear it was held that he was not entitled to any relief—Evans v.Horner1 ; Nichols et al. v. Walters2. By analogy a right vests in thelandlord to bring an action when the tenant has been in arrear tor onemonth after it became due. When the conditions set out in the provisoto section 13 of the Rent Act of 1948 are satisfied the authorisation ofthe Board is no more necessary to bring the action. The procedural barto bring an action is taken away. The paraphrase given in George v.Richards (supra) will be contrary to the rule of interpretation that whenthe words of a statute are plain the Courts should not add to or para-phrase a statute. The words in a proviso cannot be taken into accountto alter the operative part of the main section. See Craies on StatuteLaw. In interpreting a statute there is a presumption against tautology.Every word must be given a meaning. The phrase “ after it becamedue ” must be given a meaning. It denotes the period of time the tenanthas to be in arrear. The interpretation given in Fernando v. Samaraweera 3and Suyambulingam Chettiar v. Pechchi Muttu Chettiar 4 is correct.
It is not necessary to terminate the contract by notice at thetime the authorisation of the Board is asked for. After getting theauthorisation of the Board one can terminate the contract by noticeand then bring the action. This meets the argument that a landlordcan only have a vested right to bring the action after termination of thecontract of notice.
Walter Jayawardena, Crown Counsel, with G. F. Sethukavaler, CrownCounsel, as amicus curiae.—-The questions for decision are :—
whether the phrase “ has been in arrear ” in paragraph (a) of
the proviso to Section 13 means “ has been and is inarrear ” ; and
if the phrase has this meaning, whether the condition of being
in arrears must be satisfied as at the date of filing the plaint.
Ex Parte Kinning5 and Re Storie6, referred to in George v. Richard7,merely show that the words “ has been ” are capable, in certain contexts,of denoting a fact continuing to subsist up to the occurrence of a certainevent or the performance of some act. Whether they do bear this meaningor not, in a particular context, is a matter to be decided by examiningthe language of the relevant statute.
1 (1925) 1 Gh. 177.1 (1952) 53 X. L. R. 3S2.
– (1953) 2 A. E. R. 1517.5 16 L. J. Q. B. 257.
(1951) 52 N. L. R. 278.6 2 D. G. F. and J. 529.
'' (1948) 50 X. L. R. 128.
NAGALENGAM A.C.J.—Dias v. Qomes
Assuming that in paragraph (a) of the proviso to Section 13 the words“ has been in arrear ” bear the meaning referred to, the event, up to theoccurrence of which the condition of being in arrears must subsist, isnot the institution of the action. The words “ after it has become due ”(also taken as denoting a continuous fact) are inappropriate if theevent contemplated is the institution of the action. If the “ event ” is,however, taken to be the accrual of the right for the landlord to sue orthe incidence of the corresponding disability of the tenant, each wordin the paragraph can be given its natural and appropriate meaning.Had the paragraph been in the form of the paraphrase set out in George v.Richard,, the “ event ” naturally suggested by the words would have beenthe institution of the action. This paraphrase, however, is misleadingsince the proviso, in form, deals with circumstances in which theauthorisation of the Board is unnecessary for instituting an action.The idea of instituting an action, though vital, is only implied, so far asthe form of the proviso is concerned; and the form of language employedis important when questions of interpretation arise. Bird, v. Hildagecited in George v. Richard might have been an authority if paragraph
of the proviso was to be considered ; but it is not relevant to aconsideration of paragraph (a).
Assuming it is correct in law that a landlord must terminate thetenancy by due notice before taking advantage of paragraph (a), thatmatter does not displace the view of this paragraph adopted in Fernando v.Samaraweera x, viz., that a right accrues to the landlord to evict his tenantwhen the conditions in paragraph (a) of the proviso are fulfilled. Theright can be regarded as accruing subject to the implied condition thatthe requirements of the general law are complied with.
The cases cited by Counsel for the appellant may not be authoritieson the point to be considered but they furnish examples of statutoryprovisions similar in -form being regarded by Courts as imposingdisabilities.
Cur. adv. vult.
March 26, 1954. Nagaucngam A.C.J.—
The question that has been referred to a Bench of three Judges isone of great public importance involving, as it does, the determinationof the question whether tenancy terminates by reason of the non-payment by a tenant of the rent for a period of over one month afterthe date on which it fell due. On a question of such importance thataffects the community at large it is far more essential that the law shouldbe settled with clarity and precision rather than even that what maybe regarded, according to one school of thought, as .the proper viewshould be permitted to gain currency and foster a spirit of uncertaintyand doubt.
I have had the advantage of reading the judgment of my* brotherPulle J., 'with which I understand my brother Swan J. agrees, and I am
1 (1951) 52 N. L. R. 278.
PTJLL.E J.—Dias v. domes
prepared to adopt the reasoning and the conclusion set out therein witha view to set at rest once and for all the controversy in respect of thepoint of law raised on this appeal.‘
I agree to the order proposed by my brother.
This appeal has been referred to a Bench of three Judges in view ofconflicting interpretations of the proviso to section 13 (1) of the RentRestriction Act, No. 29 of 1948,—corresponding to section 8 (a) of theRent Restriction Ordinance, No. 60 of 1942,—which provides that theauthorisation of a Rent Control Board is not necessary for the institutionof an action in ejectment where “ rent has been in arrear for one monthafter it has become due ”.
In the case of George v. Richard1 my Lord, the Acting Chief Justice,held on the following facts that where the arrears of rent were tenderedbefore the commencement of the action in ejectment the landlord wasnot entitled to maintain it in view of section 8 (a) of Ordinance No. 60of 1942. The tenant was in arrears for the months of, January to April,1947, and a letter dated 24th April, 1947, was sent to him by the landlordclaiming the arrears of rent and terminating the tenancy with effectfrom 31st May, 1947. In response to the letter the tenant sent a moneyorder to the landlord who declined to accept it. Another money orderwas sent on the 10th June, 1947. This too was not accepted and theaction in ejectment was filed on the 19th June, 1947. It was assumedfor the purpose of deciding the case that rent should be paid at thebeginning of each month. Therefore, at the date of institution the landlordhad refused to accept rent for five months in respect of the contractualtenancy and for one month of the statutory tenancy.
In Fernando v. Samaraweera 2 Basnayake J. said,
“ Once the tenant commits a breach of any one of his statutoryobligations the bar against the institution of proceedings in ejectmentimposed by section 13 of the Act is removed and there is nothing the‘ statutory tenant ’ can do to regain his immunity from eviction. Hisrights and obligations are governed by the statute and immediatelyhe violates its provisions the consequences of such violation begin toflow. For instance if he is in arrear of rent for one month ‘after it hasbecome due the landlord becomes free to institute proceedings inejectment. He cannot prevent his eviction by process of law by tenderingthe rent out of time either before or after the institution of legalproceedings. The consequences of the failure to observe the obligationsimposed by the statute cannot be avoided by doing late what shouldhave been done in time. ”1
In Suyambulingam et al. v. Pechchi Muttu Chettyar 3 H. A. de Silva J.held that, where the tenant is in arrear of rent for one month after ithas become due and the tenancy is thereafter duly terminated, the
i (1948) SO N. L. R. 128.2 (1950) 52 N. L. B. 278.
(1951) 53 N. L. R. 382.
PULtE J.—Dias v. Gomes
landlord’s right to eject the tenant is not taken away by tender of thearrears before the action is instituted. The learned Judge preferred the•view expressed in Fernando v. Samaraweera 1.
In the present case which was filed on 1st July, 1952, it was allegedthat the tenant was in arrears from 1st September, 1951. A previouscase, C. R. Colombo, No. 37469, had been filed to recover rent due for themonths of September, 1951, to January, 1952, but ejectment was notasked for. Pending that suit the tenant was given notice on the 8th May,1952, to quit and deliver possession on the 30th June, 1952. In caseNo. 37469 the tenant filed his answer on the 3rd June, 1952, and along■with the answer he deposited in Court Rs. 80’ll being the arrears ofrent up to 31st May, 1952. As stated earlier the present action was filedon the 1st July, 1952. The rent for June was payable on or before the10th July, 1952.
Learned Counsel for the landlord sought to argue that the depositin case No. 37469 of the arrears up to the end of May, 1952, did notconstitute a valid tender but, as the point was not raised in the petitionof appeal, he had to confine himself solely to the submission that oncea tenant has been in arrear of rent for one month after it has become duehe forfeits the protection given to him by the Act against being ejected.The problems raised by this submission are by no means easy of solutionand although the tenant was not represented by counsel we have hadthe assistance of Mr. Walter Jayawardena, Senior Crown Counsel, towhom we are indebted for appearing as amicus curiae.
The decision in George v. Richard, 2 was partly based on the case ofBird v. Hildage3 in which it was held that where rent had beentendered before the commencement of an action in ejectment it couldnot be said that “ rent lawfully due from the tenant has not been paid ”within the meaning- of paragraph (a) of the First Schedule to the Rentand Mortgage Interest Restrictions (Amendment) Act, 1933, (23 & 24Geo. 5, c. 32). The view was expressed in George v. Richard 2 that althoughthe words “ lawfully due ” do not occur in the section of the Ordinanceof 1942 corresponding to proviso (a) to section 13 (1) of the RentRestriction Act yet the notion underlying these words is implicit inproviso (a). On this premise the learned Judge went on to develop theargument as follows :
“ Now a landlord under our law cannot institute an action for recoveryof rent unless it remains unpaid at date of institution of action. If rentis in arrear, a cause of action accrues to the landlord to sue for it butif, before he files or can file action, rent is tendered or paid to him thecause of action is extinguished, and with it the right to sue. Hence atthe date of institution of action the plaintiff must be in a position toshow that not only had a cause of action accrued to him prior to institutionof action but that the cause of action continued to subsist even at thedate of institution. ”
With all respect I am unable to agree—and here I speak naturallywith some difference—that the notion underlying the words in the English
1 [1950) 52 N. L. R. 278.3 [1948) 50 N. L. R. 128.
3 [1947) 2 All E. R. 7.
2*J. X. B 35134 (4/54)
FULiLB) J.—Dias v. Gomes
Act is implicit in proviso (a). X venture to say that basically they aredifferent. The expression “ lawfully due ” when spoken of rent due atany given point of time is inextricably associated with the idea of an actionbeing instituted to recover the same because nothing could be said to belawfully due unless enforceable by action. While, undoubtedly, it istrue that “ if rent is in arrear, a cause of action accrues to the landlordto sue for it, but if before he files or can file action, rent is tendered orpaid to him, the cause of action is extinguished and with it the rightto sue ” I cannot assent to the proposition that any disability tomaintain an action for rent by reason of a valid tender before actionhas necessarily the effect of restoring the tenant to the status ofirretnovability—which is the protection afforded by the Act—if in facthe lost that protection the moment he was in arrears of rent beyond onemonth after it became due. There may be circumstances attending theacceptance of rent before action from which it may be inferred that anew contract of tenancy came into existence which would confer on thetenant de novo all the benefits of the Act. In that event an action forejectment will have to be determined on the basis of the new tenancyand the fact that during an earlier period of a contractual or statutorytenancy the tenant was in arrears beyond a month would becomeirrelevant.•
This brings me to the final question whether the protection conferredon a tenant by the Act is taken away, if he allows himself to be in arrearsfor over a month. It seems to me that being in arrears is a conditionor state in which the tenant finds himself by his own lapse and uponthat condition or state supervening the tenant places himself outsidethe limits of the protection and it is for him to show how thereafter heregained that protection. I fail to see how he regains the protectiononly by the act of tendering the arrears before the institution of theaction. The Rent Restriction Act has made heavy inroads into the commonlaw rights of the landlord and I do not see anything oppressive ininterpreting proviso" (a) to mean that, having regard to the new andextensive rights conferred on a tenant, it is a condition precedent tothe continued protection of the Act against eviction that the tenantshall pay the rent not necessarily as it falls due but at least within amonth thereafter. The opinion that I have just expressed is supportedby the case of Evans v. Homer1- relied on by the appellant. That casearose out of an originating summons to have a mortgage securityenforced by foreclosure or sale on the ground that interest at the ratepermitted by the Increase of Rent and Mortgage Interest (Restrictions)Act, 1920 (10 & 11 Geo. v, c. 17) had not been paid and was in arrearfor more than twenty-one days. Under section 7 of the Act if rent waspaid within the specified time of twenty-one days it was not lawful forthe mortgagee to call in his mortgage or to take any steps for exercisingany right of foreclosure or sale or for otherwise enforcing his securityor for recovering the principal money thereby secured. Interest wasdue on 19th May, 1924, and more than twenty-one days later, namely,on the 11th dune the originating summons was issued. On 14th June themortgagor sent a cheque for the interest, which was accepted by the
1 (1925) 1 Ch. 177.
ROSE C.J.—Ratwalte v. Arthur Silva
mortgagee “ on account generally While I do not overlook the factthat the interest was paid after the originating summons wasissued and served, the judgment of Russell J. is in terms wide. Atpage 178 he states,
“ In my opinion the section only suspends the rights of the mortgageeduring one continuous period, which lasts so long as conditions (a), (6)^ind (c) are complied with, and that when once these conditiohs are brokena subsequent compliance with them does not revive the protection givenby the section. ”
I do not think it is necessary to make reference to a number ofsubsidiary topics argued in the course of the appeal. For the reasonswhich I have given I would set aside the decree under appeal and enterjudgment for plaintiff for the rent due at the date of action, damagesand ejectment. The appellant will be entitled to his costs in both courts.
Swan J.—I agree.
M. M. DIAS, Appellant, and P. VINCENT GOMES, Respondent
Dias v. Gomes