H. N. G. FERNANDO, J.—Jayalcody v. Pedris
1959Present: H. N. G. Fernando* J.
% D. M. JAYAKODY, Appellant, and D. L. F. PEDRIS, Respondent
S. C. 231—C. R. Colombo, 66,475
Rent Restriction Act.—Late payments of rent by tenant—No protest by landlord—
Arrear of rent—Landlord's right to eject tenant.
When a landlord is indifferent as to late payments of rent, he cannot takeadvantage of such late payments in order to eject the tenant under the RentRestriction Act when rent is in arrear for a month.
Plaintiff sought to have his tenant, the defendant, ejected on the groundthat the rent due for the month of January 1957 was in arrear. The evidenceshowed that on at least eight occasions between 1950 and the end of 1956(including September to December 1956) the rent for a particular month hadbeen accepted at some time during the next month but one. The positionregarding the rent for January 1957 was exactly the same as it was in thoseeight oases.
Held, that having regard to the very frequent occasions in the year 1956 whenlate payments were accepted, it became the duty of the plaintiff, if he intended toexercise his right to sue for ejectment on the ground of late payment, to informthe defendant explicitly that any future delay would not be excused and thatlegal rights would be insisted upon.
Appeal from a judgment of the Court of Requests, Colombo.
D. R. P. GoonetiUehe, for Defendant*Appellant.
Walter Jayawardene, with Nimal Senamyahe, for Plaintiff-Respondent.February 25, 1959. H. N. G. Fernando, J.—
The plaintiff has obtained a decree for the ejectment of the defendanton the ground that the rent due from the defendant for the month ofJanuary, 1957, was in arrear. Notice terminating the tenancy wasgiven on the 25th March, 1957, and offer of the January rent was madeto the plaintiff but rejected on the same day. The only question I needconsider Is whether the conduct of the plaintiff was such that the defend-ant was led to believe that the kind of delay which actually occurredin regard to the January rent would not be relied on by the plaintiffto sue for ejectment. The evidence shows that several letters werewritten to the defendant before 1950 complaining of the delay in paymentsof rent and also threatening action for ejectment on the ground of delay,but no letter has been produced of any later date containing any suchcomplaint or threat. On the contrary it appears from the plaintiff’sown evidence which was supported by his book of account, that on atleast eight occasions between 1950 and the end of 1956 the rent for ft.
H. IT. G. FERNANDO, J.—Jayakody v. Pedris423
particular month had been accepted at some time during the next monthbut one. The position regarding the rent for the month of January,1957, was exactly the same as it was in those eight cases to which I havereferred.
Counsel for the appellant has referred me to a South African decisionof a Bench of five judges, Garlick Ltd. v. Phillips, where it was decidedthat even in a case where the date of payment of rent was fixed by awritten lease the provision regarding time of payment could be alteredby the conduct of the parties. Watermeyer, C.J., at page 132 makesthe following observations : “ But I am inclined to think that, if breachof a duty be necessary, there was a duty resting on appellant which wasnot performed. So long as its attitude remained one of indifferencetowards late payments of rent, there was of course no necessity to speak,but when appellant’s state of mind changed from one of indifference toone of a desire or intention to take advantage of late payments of rent inorder to obtain ejectment, then I think a duty arose to make that changedattitude known to respondent. A reasonable man in appellant’s positionwould have known that a long continued receipt by him of late pay-ments of rent without protest such as occurred in this case, would leadrespondent into the belief that he had no objection to late paymentsand did not treat them as breaches of contract and would not, withoutnotice, do so in the future. A duty therefore rested on appellant if it’intended to treat late payments of rent in the future as breaches of -contract and to take advantage of them, to inform respondent of thatchange of mind.”
To my mind the fact that no action was taken within a reasonable-time after the plaintiff’s last letter to the defendant of P24 oh 19thNovember, 1949, justifiably caused the defendant to believe that althoughhis late payments might be a source of inconvenience to the plaintiff,nevertheless they would not be relied on for the purposes of foundingan ejectment action.
Having regard to the very frequent occasions in the year 1956 whenlate payments were accepted it became in my opinion the duty of the-plaintiff, if he intended to exercise his right to sue for ejectment on theground of late payment, to inform the defendant explicitly' that anyfuture delay would not be excused" and legal rights insisted upon.
Although there is oral evidence that the plaintiff warned and “ pulledup” the defendant when he made late payments,,there is no expressevidence that the plaintiff threatened that he would go to court in theevent of a late payment. The fact that the rent for the months ofSeptember, October, November and December 1956 was always acceptedin the third month must have induced the defendant to believe thathe ran no risk by delaying the payment for January.
On this ground I would set aside the judgment and decree and enterdecree dismissing the plaintiff’s action with costs in both courts.
1 1949 (1) S. A. L. R. 121.
T. D. M. JAYAKODI, Appellant, and D. L. F. PEDRIS, Respondent