DRIEBERG J.—Scmgarapillai v. Berry.
1931Present: Drieberg J.
SANGARAPILLAI v. BERRY.
134—C. R. Colombo, 70,599
Landlord and tenant—Notice by tenant—Tenant overholding vjilfully—Damages.
Where a tenant gave his landlord notice of his intention to quit atthe end of a month and in consequence of his overholding for a daythe landlord was unable to give possession to a new tenant,—
Held, that the landlord was entitled to recover a month’s rent asdamages from the tenant.
A PPEAL from a judgment of the Commissioner of Requests, Colombo.
Navaratnam, for the plaintiff, appellant.
December 15, 1931. Drieberg J.—
The respondent, who was the tenant. of a bungalow belonging to theappellant, gave notice that he would leave at the end of March. Hefailed to do so and the appellant sued him for damages.
The respondent was not present at the trial and the learned Com-missioner has accepted the evidence of the appellant which is that inFebruary he received notice from the respondent that he would leave,at the end of March. The respondent paid Rs. 160 rent. In anticipationof his leaving the appellant secured another tenant, Naidu, to whom heagreed to give the house from April 1, on the same rental. Naidu askedthe appellant for the keys at 9 a.m. on April 1 and the appellant sayshe went at 9 a.m. to the respondent and asked him for the keys. Therespondent said he would not return them until that night and he gavethem to the appellant at 8.30 p.m. As he could not get the keys untilthat evening Naidu said he would not take the house, which remained with-out a tenant during April. The appellant claimed as damages Rs. 160,the rent he lost by the respondent’s default.
The learned Commissioner gave the appellant Rs. 5.33 as damages,basing it on a day’s rental. His reason was that a case like this did notcall for exemplary damages arid further, that when there is a change oftenancy the old and the new tenants usually arrange between themselvesthe taking over of the house. He held that Naidu had no right to bescared away by the respondent overholding the keys for a day and thatthis is an ordinary and trifling circumstance incidental to a change ofresidence. There was no evidence led for the responderit, and Naiduhad left the Islarid before trial. It appears to me that the learnedCommissioner has not given full legal effect to his finding on the facts.If it was not true that Naidu gave up the tenancy because he could not
DRIEBERG J.—Sangarapillai v. Berry.
get possession at a reasonable hour on April 1 then the appellant did notsuffer damages to the extent of a month’s rent. If this is true andif the appellant did lose rent for April, is there any reason' why theappellant should not be entitled to recover that amount from therespondent ?
The learned Commissioner referred to a judgment , of his in which hesays he dealt with this point. I have sent for and examined the recordin that case, C. R. Colombo No. 63,508. There was in that case a tenancyat Rs. 23 a month and the landlord gave the tenant notice to quit onMarch 31 and that if he did not he would have to pay a rental of Rs. 50a month. The tenant left on April 2. There was no evidence that thelandlord had secured a new tenant for April. The Commissioner quiterightly refused to give the landlord judgment for Rs. 50 and enteredjudgment for two days’ rent on the Rs. 23 basis. Rs. 50 in such a casewould have been “ exemplary damages ” and not the actual damagessustained by the landlord.
Where a tenant holds over after a notice to quit or pay increased rentthe question arises in the first instance whether by so doing he assents toa new tenancy on the new terms, and if it is held that he did he will beliable for the enhanced rent. If it is held that a new tenancy was notcreated then he is liable for use and occupation and the increased rentmay afford fair material on which to determine what that is worth(Jacobs v. Peter ’).
But we have here a case where there is evidence of the actual losssustained by the landlord, and that loss is the direct and natural conse-quence of the respondent’s default, and a default which according to theevidence was wilful.
The case of Metz v. Simmonds2 noted on page 361 of Vol. 7 of the SouthAfrican Digest (1915-16) is an authority in point, for there the landlordas a result of the tenant overholding was obliged to cancel a lease whichhe had granted another. The landlord was allowed to recover as damagesthe loss of rent he would have recovered under the lease and expenses' incurred in the preparation of it. Further authority ■ for this is affordedby the cases cited on pages 434 and 435 of Wille oh Landlord and Tenantin South Africa. The principle is the same in the case of a fresh monthlytenancy which the landlord has lost by the tenant overholding. I thinkthe learned Commissioner would have acted on these authorities which hereferred to, except for the reason that, in his opinion, the delay of a daywas an ordinary incident in a change of tenants. It is no doubt customaryfor the outgoing and ingoing tenants to arrange between themselves theirmovements, but if they cannot agree I do not see how the landlord canbe prejudiced. It was possible for the respondent to have inquired fromthe appellant whether he had let the house from April 1 and to have gotpermission to stay on for a day and if he was told that the house had beenlet to come to an arrangement with Naidu. He did not, do this but soughtto give the appellant all the trouble he could in the exercise of what heno doubt conceived to be his legal right. He would not allow the appellanti (1883) Wendt’s Reports 307.2 (1915) C. P. D. 34.
to put up a notice that the house was to let and when asked for the keyson the morning of April 1 merely said that he would not give them upuntil that night.
I set aside the judgment appealed from. Judgment will be enteredfor the appellant as claimed, and the respondent will pay the appellantthe cost of this appeal.
SANGARAPILLAI v. BERRY