SAMERAWICKRAME, J.—Mohamed v. Wahab
1969Present : Samerawickrame, J.
A. MOHAMED, Appellant, and M. L. A. WAHAB, Respondent
S. C. 102/67—C. R. 3fatale, 15263-
Rent Restriction Act—Section 12A(1) («)—Action in ejectment thereunder—Tender ofthe rent due, before institution of action—yon-liability of tenant to be ejectedthen.
Where, in ft case governed by section 12A (1) (a) of the Rent Restriction Act-a landlord seeks ejectment of hi3 tenant on the ground that rent has been inarrears for a period of three months or more after it has become due, the tenantis not liable to be ejected if, before the date of institution of action, he tendersto the landlord the rent due.
-/V.PPEAL from a judgment of the Court of Requests, Matale.
Nthal Jayawickrame, for the defendant-appellant.
E. R. S. R. Coomaraswamy, with N. R. M. Daluwatte and S. K. II.Wijetilleke, for the plaintiff-respondent.
Cur. adv. vult.
April 26, 1969. Samerawickrame, J.—
The learned Commissioner of Requests has entered a decree forejectment of the defendant from premises bearing assessment Ko. 226King Street, Matale, of which he was in occupation as tenant, on theground that rent had been in arrears for a period of over three monthsafter it had become due. Counsel for the defendant-appellant submitsthat rent had not been in arrear for a period of three months within themeaning of Section 12A (1) (a) of the Rent Restriction Act for the reasonthat the defendant-appellant had made payments before action wasfiled. Learned Counsel for the plaint iff-respondent contended that atenant who had failed to make payment of rent for a period of threemonths was liable to be ejected under the provision in question even
334SAMERAWICKRA3tE, S.—Mohamed v. tfahab
though he made tender of the rent duo before institution of action. Herelied on a judgment of a Divisional Bench in the case of Diasv. Vincent Gomes 1.
The Divisional Bench considered the provision in s. 13 (1) of the RentRestriction Act which is as follows :—
“Notwithstanding anything in an}’ other law, no action orproceedings for the ejectment of the tenant of any premises to whichthis Act applies shall be instituted in or entertained by any court,unless the board, on the application of the landlord, has in writingauthorised the institution of such action or proceedings :
Provided, however, that the authorization of the board shall not benecessary, and no application for such authorization may be entertainedby the Board, in any case where—
(a) rent has been in arrear for one month after it has becomedue ; ”
The Court held that once a tenant has been in arrears of rent for onemonth after it has become due, he forfeits the protection given to himby the Act against being ejected and that he cannot regain the protectionby the mere act of tendering the arrears before the institution of action.The provision which was considered by the Divisional Court sets outthe circumstances where authorization of the board was not necessary.
It also provides that in those circumstances no application for authoriza-tion may be entertained by the board. It would thus appear that thecircumstances were considered to be such as have arisen at the stage ofan application to the board made prior to the filing of an action. Therewas, therefore, if I may say so with respect, good ground for the DivisionalCourt to hold that the provision contemplated rent being in arrear ata time prior to the institution of the action.
Act No. 10 of 1961 amended s. 13 by insertion after sub-section (1)of new sub-sections (1A) and (IB) which are as follows :—
“ (1A) The landlord of an}' premises to which this Act applies shallnot be entitled to institute any action or proceedings for theejectment of the tenant of such premises on the groundthat the rent of such premises lias been in arrear for one monthafter it has become due,—
(а)if the landlord has not given the tenant three months’
notice of the termination of the tenancy, or
(б)if the tenant has, before such date of termination of the
tenancy as is specified in the landlord’s notice of suchtermination, tendered to the landlord all arrears ofrent.
1 (1954) 55 N. L. R. 337.
SAMERAWICKRAAIE, J.—Mohamad v. Wahab
. (IB) Where an}' action or proceedings for the ejectment of the tenantof any premises to which this Act applies is or are instituted onthe ground that rent lias been in arrear for one month after ithas become due, the court may, on being satisfied that therent has been in arrear on account of the tenant’s illness orunemployment or other sufficient cause, make order that awrit for ejectment of the tenant from those premises shall notissue if the tenant pays to the court the arrears of rent citherin a lump sum on such date, or in instalments on such dates,as may be specified in the Order ; and if the tenant pays to thecourt the arrears of rent on such date or dates, his tenancy ofthose premises shall, notwithstanding its termination by thelandlord of those premises, be deemed not to have beenterminated.”
After these amendments a landlord could file action for ejectment ofa tenant only if a tenant in spite of throe months’ notice of terminationof the tenancy fails to tender arrears of rent within that period. ThoCourt is given further power to give relief to the tenant, if it is satisfied,that rent had been, in arrear on account of illness, unemployment orother sufficient cause.
Act No. 12 of 1966 made s. 13 inapplicable to premises where thestandard rent does not exceed Rs. 100 per mensem and introduced thenew section 12A. Sub-section (2) of that section reproduces in substances. 13 (IB). The original s. 13, including sub-sections (1A) and (IB)continue to apply to premises where the standard rent- exceeds Rs. 100.The relevant part of s. 12A reads :—
“ 12A (1) Notwithstanding anything in any other law, no action orproceedings for the ejectment of the tenant of any premisesto which this Act applies and tho standard rent of which for amonth docs not exceed one hundred rupees shall be institutedor entertained by any court unless where—
(a-) tho rent of such premises has been in arrear for three monthsor more after it has become due,”
It appears to mo unlikely that tho legislature intended that tenantsof premises whose standard rent is below Rs. 100 should be liable to beejected by.reason of arrears of rent, even though there had been a tenderof rent before the actual institution of the action. It is not probablothat tho Icgislaturo intended that tenants of such premises should boplaced in a worse position in this regard than the tenants of premiseswhose standard rent is in excess of Rs. 100. Nor is it probable that thelegislature intended to place tenants of such premises in a position of somuch greater disadvantage compared to that which they enjoj’ed underthe law before it was amended by Act 12 of 1966. It is also relevantthat the provision in sub-section (2) which empowers the Court to permit
SAMERAWICKRAME, J.—Mohamed v. Wahab
a tenant to pay into court the arrears of rent and in such case not to issuoa writ of ejectment is some indication that tho legislature contemplatedarrears duo at tho date of institution of action.
In the case of Abdul Samadi. Sirinayake V Alles J., appears to havetaken the view that the section referred to arrears of rent duo at thedate of the institution of the action. Ho stated :—-
“ For the plaintiff to succeed in appeal ho must satisfy the Courtin this case that the defendant was in arrears of rent for throe monthsat the time of tho institution of tho action on 2.7.61.”
The terms in which reference is made in sub-section (2) of s. 12A toan action brought under s. 12A (1) (a) is also significant — “Whereany action or proceedings for the ejectment of tho tenant of any premisesreferred to in sub-section (1) is or are instituted on the ground that renthas been in arrear for three months or more after i t lias become due,the court may …. "—
I think, this provision indicates the nature of an action brought undersub-section 12A (1) (a), namely, that it is brought on the ground thatrent lias been in arrear for throe months or moro. One would normallyexpect a grotmd of an action to subsist at the dato of its institution.The words “ has been ” may be used to denote a fa ' continuing to subsistup to the occurrence of a certain event or tho jDorformance of some act-—vide Ex parte Kinning". It appears to me, therefore, that in . s. 12A(1) (a) the requirement that rent has been in arrear for three monthsor moro after it lias become due is not satisfied unless rent is in arrearup to and at the date of the institution of the action.
The learned Commissioner took the view that the j)Iaintiff was entitledto a decree for ejectment because on tho date of the termination of thecontract of tenancj*, tho defendant was dearly in arrears of rent for morethan three months. Having regard to the conclusion I have arrived atthat the matter of arrears of rent must be considered as at tho date ofthe institution of the action, the decision of the loarncd Commissionercannot bo sustained. I accordingly, allow the appeal and set aside thoorder appealed from and direct judgment to bo entered dismissing thoxfiaintiff’s action. The defendant-appellant will be entitled to costs ofappeal and costs in the trial court.
> (1907) 70 A L. E. 47 at 4S.
* 16 Law Journal Q. B. 257.
V. A. MOHAMED, Appellant, and M. L. A. WAHAB, Respondent