Siriwardena v. Karunaratne
1959Present: Sansoni, J.
T. H. SIRIWARDENA, Appellant, and MRS. M. G. KARUNARATNE,
8. G, 8—0. B. Panadura, 15,480
Rent Restriction Act, No. 29 of 1948—Section 13 (1)—Consent decree—Undertakingby tenant to quit premises on a certain date—Enforceability—Right of tenantto recall a promise to quit.
Where, in an action for rent and ejectment in respect of promises to which theRent Restriction Act applies, the parties enter into a compromise a term ofwhich is that the defendant can continue to be tenant but should vacate thepremises on or before a certain date, and there is no provision for the issue of a' writ of ejectment in case of default, the undertaking to quit cannot be enforcedsubsequently in smother action for ejectment without proof of the facts neces-sary to confer jurisdiction on the Court in terms of section 13 (1) of the Rent■ Restriction Act.. In such a case, it cannot be contended that the undertakingamounts to a notice to quit -given by the tenant within the meaning of seotion13 (1) (b) of the JRent Restriction Act.
PPEAL from a judgment of the Court of Requests, Panadura.
Walter Jayawardene, with Nimdl Sermnayake, for Defendant-Appellant.
W. Jayewardene, Q.G., with W. D, Gunasekera, for Plaintiff-Respondent,
Our. adv. wit.
SANSONI, J.—Siriwardena v. Karunaratne
June 9,1959. Sansoni, J.—
The plaintiff and the defendant are landlord and tenant respectively ofcertain premises to which the Bent Restriction Act No. 29 of 1948admittedly applies.
In an earlier action No. 3456 of the District Court of Panadura, theplaintiff sued the defendant for rent and ejectment on the ground thatthe defendant was in arrears of rent for more than one month. Thataction was settled on 12th October 1953, it being agreed :
that a sum of Rs. 243 is due from the defendant to the plaintiff
as rent up to the end of October 1953, that the defendant willpay the same before the end of the month, that thereafter eachmonth’s rent will be paid on or before the 10th of the followingmonth, that the plaintiff will be entitled to add on to therent any increases permitted by law,
that the plaintiff shall effect all necessary repairs,
that the plaintiff will thereafter pay all assessment rates in respect
of the premises,
that the defendant undertakes to vacate the premises on or before
31st December 1956.
Notwithstanding his undertaking to vacate the premises on or before31st December 1956 the defendant continued to occupy them, and theplaintiff sued him in this action on 16th July 1957.
In her plaint she pleads the undertaking given by the defendant, andalso that she gave the defendant notice to quit the premises on 31stDecember 1956. The plaint does not explain why the written authorisationof the Rent Control Board was unnecessary, nor does it contain any pleawhich would bring the case within the proviso to section 13 (1) of the Act. Theanswer filed by the defendant, rightly in my opinion, raised the defencesthat the written authorisation of the Board was necessary and that theplaint discloses no cause of action. The issues raised at the trial coveredthese matters.
The learned Commissioner gave judgment for the plaintiff, holdingthat the undertaking given by the defendant was not a notice to quit ascontemplated by proviso (6) to section 13 (1), but also holding that theRent Restriction Act did not apply to the cause of action in this case.He appears to have reached this latter conclusion because the undertakingwas contained in an agreement between the parties entered into in theearlier action and embodied in a decree of Court. With respect, I amunable to agree with this finding. The case of Barton v. Fincham1 whichthe learned Commissioner relies on undoubtedly contains expressions ofopinion by the judges to the effect that agreements between the partiesentered into in Court when the action comes up for hearing can beenforced. Scrutton L. J. said: “ It was urged that the effect of ourdecision would be to prevent agreements in Court …. I do notsee any reason why the judge on being satisfied that the tenant is then
1 (1921) 2 K. B. 291.
SANSONI, J.—Siriwardena v. Rarunaratne
ready to go out (not that he was once willing but has changed his mind)should not make an order for possession Atkin L.J. said: “ If theparties before the Court admit that one of the events has happened whichgive the Court jurisdiction, and there is no reason to doubt the bonatides of the admission, the Court is under no obligation to make furtherinquiry as to the question of fact; but apart from such an admissionthe Court cannot give effect to an agreement, whether by way ofcompromise or otherwise, inconsistent with the provisions of the Act. ”The learned Judges were drawing a distinction between a compromiseentered into in an action, upon which the Court can make an orderin that action, and an agreement which it is sought to enforce subsequentlyin another action without proof of the facts necessary to confer jurisdictionon the Court. It is the latter case which they had to deal with and whichI have to deal with on the present appeal. An instance of the formertype of case will be found in Nugera v. Richardson1, where the termsof settlement provided that a writ of ejectment should issue on a certaindate—a provision which is absent from the terms agreed in this case.
One must bear in mind that the Act has placed a fetter upon the powersof the Court, and has restricted its jurisdictions to order ejectment of atenant. Under section 13 no action for the ejectment of a tenant shallbe instituted in or entertained in any Court unless the conditions thereinmentioned are satisfied, yet the plaintiff made no allegation in his plaintthat any such condition had been satisfied.
But as the case was fought out in the lower Court on the question whetherthe defendant’s undertaking to vacate the premises amounted to a noticeto quit, I shall consider this question also. Clearly the earlier settlementarrived at was on the basis that the defendant should continue to be thetenant of the plaintiff paying rent regularly on or before the 10th of thefollowing month. The present action was also brought on that basis.
It was submitted for the plaintiff that the defendant’s undertaking tovacate amounted to a notice to quit. I am unable to agree. If such anargument were to be accepted, every contract of tenancy, notarial ornon-notarial, which contained an agreement by the tenant that he woulddeliver possession to the landlord by a certain date would have to beinterpreted as containing a notice to quit given by the tenant. Nothingwould then be easier than for the landlord to sue the tenant in ejectment,pleading that the case fell within proviso (6) to Section 13 ; the Act wouldcease to afford any protection to a tenant in such cases, and itsprimaryobject would be defeated.
I therefore think thata cleardistinctionmust be drawn between a noticeto quit and an agreement to surrender possession. That distinctionwas drawn by Salter J. in de Vries v. Sparks 2. He said: “ A noticeto quit and an agreement to surrender or determine a tenancy wereessentially different in their nature. An agreement depended on thecommon consent of the parties, while a notice to quit was a notice givenby one party to the other of an intention to exercise a right given by theoontract, whether the other party liked it or not ”. A similar view was
1 (1949) SI N. L. R. 116.2 (1921) 43 T. L. R. 44S.
SAISfSONl, 1 .—Siriwardena v, Katrunaratm
taken by Wij eye wardens S P.J. in Alikanu v. Marikkar That casewas even stronger than this, because the agreement provided that thenotice given by the tenant, that he would quit on a certain date, was tobe deemed a notice under the Act.
The undertaking which the plaintiff is seeking to enforce offends againstthe principle that a tenant can never contract out of the protectionafforded by the Act, and can at any moment recall a promise to surrenderpossession—see Ibrahim Saibo v. Mansoor2. The most that can besaid for the undertaking given by the tenant when the earlier action wassettled was that it was a promise to surrender possession, but there wasnothing to prevent him from recalling it.
I vary the decree entered in this case, by setting aside the order forejectment. The defendant appellant is entitled to his costs in bothCourts.
1 (1948) 38 C. L. W. 90.2 (1953) 54 N. L. R. 217.
T. H. SIRIWARDENA, Appellant, and MRS. M. G. KARUANRATNE, Respondent