BASNAYAKE, C.J.—Mammoo v. Menon
1964Present: Basnayake, C.J., Abeyesundere, J.,and Sirimane, J.C. MAMMOO and 2 others, Appellants, and
M.P. K. MENON, Respondent
8. C. 65/61—C. R. Colombo, 76475
Landlord and tenant—Monthly tenancy—Action for recovery of arrears of rent only—Subsequent action for ejectment—Maintainability—Notice to quit—Effect ofsubsequent waiver, tacit or otherwise—Rea judicata—Civil Procedure Code,as. 33, 34, 207.
A landlord who, before the notice to quit sent by him to his monthlytenant has taken effect, sues the tenant for recovery of arrears of rent only,but not for ejectment, is entitled to bring a separate action in ejectment afterthe same notice to quit has taken effect.
Plaintiffs had let certain premises to the defendant on a monthly tenanoy.On 2nd April 1960 notice of termination of the tenancy was givon requiringthe defendant to deliver possession of the bouse by 31st May 1960. Beforethe expiry of the notice, however, namely on 26th May 1960, action No. 50064was instituted in the District Court for recovery of all arrears of rent due upto that date. Consent decree was entered in that action on 2nd February 1961.After the notice to quit of 2nd April 1960 had taken effect, the present actionwas instituted on 2nd June I960 for the ejectment of the defendant and fordamages per mensem commencing from 1st June 1960.
Held, that the decree in action No. 50064 could not operate as res judicatain the present action.
Ebhramjee v. Simon Singho (62 N. L. R. 261) considered.
After notice of termination of a monthly tenancy, an unqualifiedacceptance of rent amounts, in the absence of other facts which indicate thecontrary, to a tacit renewal of the contract of tenancy. After such a tacitrenewal, the landlord is not entitled to go back on it and sue for ejectmentas if the notice of termination is in force. But the renewal, tacit orotherwise, does not deprive the landlord of the right to sue for the recoveryof arrears of rent.
/PPEAL from, a judgment of the Court of Requests, Colombo. Thisappeal was referred under section 48A of the Courts Ordinance to aBench of three Judges.
O.Ranganothan, with M. T. M. Sivardeen, for Plaintiffs-Appellants.
U.W. Jayewardene, Q.C., *uth D. 8. Wijewardene, M. 8. M. Nazeemand M. Sivanathan, for Defendant-Respondent.
June 3, 1964. Basnayake, C.J.—
This is an action by the plaintiffs carrying on business under thebusiness name of P. B. Umbichy against the defendant who was employedas a technician at their Mills for his ejectment from premises No. 221
2—E. 824—1,855 (9/64)
BASNAYAKE, C.J.—Mammoo v. Mcnon
Baseline Road, Colombo, and for damages at the rate of Rs. 58-12 permensem commencing from 1st June 1960 till the defendant and allpersons holding under him are ejected from those premises and peacefulpossession thereof is restored to the plaintiffs. The defendant whileadmitting that he took the premises in question from the plaintiffson a monthly tenancy denied that the rental was pa3*able on the 10thday of each month. He denied that he had failed and neglected topay the rents due after 31st March 1958 and stated that the questionof rental had been settled in D.C. Colombo Cases Nos. 47445 and 50064.When issues were framed at the trial, the following issue was suggestedby counsel for the defendaut, although there was no plea of res judicatain the answer :—
“ 5. Do the judgments and decree in D.C. Colombo Nos. 47445and 50064/M operate as res judicata ? ”
The issue was not in regard to a matter that arose on the pleadingsand should not have been adopted by the Commissioner. At the trialthe plaintiffs took up the position that the defendant paid monthlyrentals up to 31st March 1958 and thereafter defaulted, and that on16th June 1959 notice of termination of tenancy on 31st July 1959 wasgiven to the defendant by the plaintiffs. On 8th July 1959, however,before the tenancy terminated, action No. 47445/M was instituted bythe plaintiffs for the recovery of a sum of Rs. 819*30 being arrears ofrent due for the months of April to December 1958 and for Januaryto June 1959. In that action too, the defendant admitted that hehad become a monthly tenant of the plaintiffs, but denied that he wasin arrears of rent. He asserted—
(а)that the plaintiffs bought from him four soap frames at a cost
of Rs. 3,000,
(б)that it was agreed that the rental was to be deducted from
the said stun of Rs. 3,000,
that he had paid all rents which fell due,
that there was yet a sum of Rs. 1,321*46 due and owing from
the plaintiffs to him, and
that in accordance with the agreement the said sum ofRs. 1,321*46
should be set off against future rents.
In the course of those proceedings the parties appear to have Settledthe matter, because the decree that was entered on 23rd May 1960 isa consent decree which reads—
“ …, it is ordered and decreed by consent that the defendant
do pay to the plaintiff the sum of Rs. 819*30 together with legalinterest thereon from 8.7.59 to date and thereafter on the aggregateamount of the decree till payment in full and Costs of suit, payableby instalments of Rs. 75 a month commencing from 30.6.60.”
BASJTAYAKE, C.J.—Mammoo v. Menon
While the earlier action was still pending, on 2nd April 1960 a secondnotice of termination of defendant’s tenancy was given requiring himto deliver possession of the house he occupied by 31st May 1960. Beforethe expiry of that notice, however, namely on 26th May 1960, a secondaction No. 50054/M was instituted by the plaintiffs for the recoveryof a sum of Rs. 600*82 being the rents due for the months July 1959to May 1960. In that action also the defendant admitted that he hadbecome a monthly tenant of the plaintiff-, but once more denied thatthe rent was payable on the 10th of each month. He also denied thathe was in default of rent for the months for which the claim had beenpreferred. This action too appears to have been settled because thedecree that was entered, dated 2nd February 1961, is a consent decree.It reads—
**. . .,it is ordered and decreed by consent that the defendantdo pay to the plaintiff the sum of Rs. 600*82 together with legalinterest thereon from 27.5.60 to date and hereafter on the aggregateamount of the decree till payment in full and costs of suit payableby monthly instalments of Rs. 25 commencing from 15.2.61.”
The second notice appears to have been given on the basis that thecontract of tenancy which had been terminated by the earlier noticehad been tacitly renewed. The second action that was filed was alsobrought on the basis of a subsisting tenancy, for what was claimed wasrent and not damages for over-holding despite the notice terminatingthe tenancy in July 1959. The defendant acquiesced in that positionand admitted a subsisting tenancy. He cannot therefore now be heardto say that the June 1959 notice was in force in May 1960 when thesecond action for arrears of rent was brought, and that the plaintiffshould have then prayed or was entitled to pray ejectment.
The piaint in the present action was filed on 2nd June 1960 afterthe April 1960 notice had taken effect. The learned Commissioner heldthat the two previous judgments operate as res judicata and dismissedthe plaintiff’s action, and the present appeal is from that order.
This appeal came up before my brother Sri Skanda Rajah whoreserved for the consideration of more than one Judge the questionof res judicata arising hereon.
In Ebhramjee v. Simon Singho1 Pulle J. held that a landlord who. had sued for arrears of rent only, but not for ejectment, was not entitledto bring a separate action in ejectment based on the same notice toquit. He says—
“ Having intentionally relinquished his claim to ejectment thelandlord should not be allowed to pursue that in separate proceedings.”
In this case two separate actions were brought for the recovery ofrent that had accrued but had not been paid. In the first action theplaintiffs were not entitled, even if they wished to do so, to add a prayer
1 (I960) 62 N. L. R. 261.
BASNAYAKE, C.J.—Mammoo v. Menon
for ejectment because the tenancy had not terminated on the date onwhich the action was brought. The second action was brought afterthe second notice had been served, but before the date fixed thereinfor the determination of the tenancy. It was common ground inthe second action that there was a subsisting contract of tenancytacitly created and their conduot indicated that both parties regardedthe June 1959 notice as not in force.
It was not open to the plaintiffs in either of those actions to ask forejectment of the detendant; so that the present action does not seekany relief which had been claimed or could have been claimed in theprevious actions. The plea of res judicata does not therefore lie.
The basic principles of the law of Res Jvdicata have been written intoour Civil Procedure Code. Its provisions are designed as far as maybe to prevent a multiplicity of actions. With this end in view—
(a) section 33 enacts that, as far as practicable, every regular notionshall be so framed as to afford ground for a final decision uponthe subjects in dispute, and to prevent further litigationconcerning them,
(&) section 34 enacts—
that every action shall include the whole of the claimwhich the plaintiff is entitled to make in respect of the causeof action,
that if a plaintiff omits to sue in respect of, or intentionallyrelinquishes any portion of, bis claim, he shall not afterwardssue in respect of the portion so omitted or relinquished, and
that a person entitled to more than one remedy in respectof the same cause of action may sue for all or any of hisremedies ; and that if he omits except with the leave ofthe court obtained before the hearing to sue for any of suchremedies, he shall not afterwards sue for the remedy soomitted,
(c) section 207 enacts that all decrees passed by the court shall, subjeotto appeal, when aD appeal is allowed, be final between theparties and goes on to explain what is the extent of the finalityin these words—»
" Every right of property, or to money, or to damages, or to reliefof any kind which can be claimed, set up, or put in issue betweenthe parties to an action upon the cause of action for which the actionis brought, whether it be actually so claimed, set up, or put in issueor not in the action, becomes, on the passing of the final decree inthe action, a res adjudicata, which cannot afterwards be made thesubject of action for the same cause between the same parties.”
Now the expression “ cause of action ” is defined in the Civil ProcedureCode as “ the wrong for the prevention or redress of which an actionmay be brought, and includes the denial of a right, the refusal to fulfil
BASNAYAKE, C.J.—Mammoo v. Menon
an obligation, the neglect to perform a duty, and the infliction of anaffirmative injury.” Subject to the context in which it occurs, theexpression “ cause of action ” has to be understood in the sense in whichit is defined. In the instant case the expression occurs in the context“ or put in issue between the parties to an action upon the cause ofaction for which the action is brought ”. The material words are “ uponthe cause of action for which the action is brought”. What is the causeof action for which the two earlier actions were brought ? It is thenon-payment of rent, and not the failure to quit the premises upontermination of the tenancy. What was claimed in the July 1959 actionwas arrears of rent (D.C. Colombo 47445/M), the cause of action beingnon-payment of rent. It was not open to the plaintiff to pray ejectmentin that action. Similarly in the May 1960 action (D.C. Colombo50064/M) it was again arrears of rent alone that was claimed, althoughnotice of termination of tenancy had been given in June 1959. Thecause of action being non-payment of rent, was it open to the plaintiffin that action to pray ejectment ? We think not, because the pleadingsshow that there had been after the June 1959 notice and before theMay 1960 action a tacit renewal of the contract of tenancy which wasterminated by the second notice in April 1960 upon which the thirdaction was brought. It is only in the instant action that damages andejectment are prayed. The cause of action in the instant case is thefailure to quit and deliver possession of the premises on the terminationof the tenancy. We find ourselves unable to agree with the view takenby Justice Pulle in regard to the meaning of “ cause of action ”.
Where there has been a breach in the case of a contractual relationshiplike that between landlord and tenant, it is open to the parties byagreement or conduct to renew the contractual relationship eitherexpressly or tacitly. Where there has been such a renewal, it is notopen to the landlord to go back on it and proceed as if there had beenno renewal. The acceptance of rent without more, after notice oftermination of a monthly tenancy, has been held, in the absence ofothei facts which indicate the contrary, to amount to a tacit renewalof the contract of tenancy. After such a tacit renewal, it has beenheld that the landlord is not entitled to go back on it and sue forejectment as if the notice of termination was in force. In such a casea fresh notice of termination is necessary before an action in ejectmentcan be instituted. But the renewal tacit or otherwise does not deprivethe landlord of the right to sue for arrears of rent though he cannotpray ejectment. We are therefore of the opinion that the learnedCommissioner is wrong in his conclusion.
We accordingly allow the appeal with costs both here and in thecourt below, set aside the order of the Commissioner and send the caseback for trial de novo.
Abeyestjndere, J.—I agree.
Sirimane, J.— I agree.
V. C. MAMMOO and others, Appellant, and M.P.K.MENON, Respondent