Weerasinghe v. Chandradasa
Weerasinghe v. Chandradasa
’COURT OP APPEAt*.
RODRIGO, J. AND L. H. DE ALWIS, J.
c. a. (sc.) 1997/79—m.c. mamgakanba 74/c.
DECEMBER 14, 1979.
Rent Act, No. 7 of 1972, section 27 (1)—Meaning of words “living inand living only in” sub-section (1) (b)—Premises must be onlyresidence of plaintiff for requisite period.
Landlord and tenant—Notice to quit—Use of the words “ on or beforeNotice under section 27 (1) (d) of Rent Act—Requisites of a valid notice.
The plaintiff was the owner of residential premises Which he occupiedwith his family. In May, 1974, he let a part of these premises to thedefendant on a monthly tenancy. By a letter dated 28.12.77 the plaintiffsought to terminate the terancy by giving the defendant notice toquit “ on or before " the 31st January, 1978, and thereafter the plaintiffbrought this action for ejectment under section 27 of the Rent Act.
It was contended for the defendant that the plaintiff had not compliedwith the requirements of the said section 27 because :—(a) the plaintiffwas not “ living in and living only in ’’ another part of the said premisesfor a period of not less than six months immediately prior to the date onwhich the action was instituted, as required by section 27 (1) (b) and(b) the defendant had not been given one month’s notice of terminationof the tenancy, as required by section 27 (1) (d), since in the notice toquit he was asked to vacate “on or before” the end of the currentmonth of his tenancy.
1) The words “living in and living only in ” in section 27 (1) (b)of the Rent Act were used to emphasise that the plaintiff must occupyhis part of the premises as his only residence, for the requisite periodof six months and the evidence in this case established such aresidence even though the plaintiff was during the said period engagedin a job which required him to leave home and travel from area to areaduring the week.
The words “ on or before ” in a notice to quit do not render the noticedefective, es they were meant to convey that the tenancy expired atmidnight of the last day of the current month, namely the 31st ofJanuary, 1978. It was not the position of the tenant at the trial that
he was misled by such notice.
Per Rodrigo, J:
“ Whether it is expressed to expire on the 31st January or on the 1stFebruary, whichever the. date, the notice can. be construed as relatingto the midnight which divides them. ”
Cases referred to
Gunasekera v. Wifesinghe, (1963) 65 N.L.R. 303.
Weerapemmal v. Dawood Mohamed, (1893) 3 N.L.R. 340.
Imperial Tea Co. Ltd. v. Avamady. (1923) 25 N.L.R. 327.
Crate v. Miller, (1947) 2 All E.R. 45.
Haniffa v. Sellamuttu, (1967) 70 N.L.R. 200.
Sellathurai v. Fernando, (1965 ) 68 N.L.R. 454 ; 69 C L-W. 14.
Edward v. Dharmasena, (1964) 66 NL.R. 525 ; 67 C.L.W. 44.
Abeyu’iclcreir.a v. Karunaratne. (1962) 63 C-L.W. 23.APPLICATION to revise a judgment of the Magistrate’s Court,Maligakanda.
J. W. Subasinghe, with Romesh de Silva, tor the defendant-petitioner.
N. S A. GoonetUleke, with N. Mahendra, for the plaintiff-respondent
Cur. adv. tnilt
Sri Lanka Law Reports
(1980) 2 S. L. R-
January 21, 1980.
This appeal raises two questions of interpretation—what is themeaning and construction of the word ‘ living ’ found in section27 of the Rent Act of 1972 and similarly of the words ‘on orbefore ’ used in the notice to quit by the plaintiff to the defendant.
To give the facts shortly. The plaintiff is a GovernmentEngineer who had been sent in 1975 to supervise the work inwhat has been styled the Lower-Uva Development Scheme. Hehad been designed the Resident Manager and, it is alleged, theplaintiff had to cover an area of 3,000 square miles in the courseof his supervision. The plaintiff and his wife had become theowner of a residential premises in Colombo in 1971. They andtheir four children had been occupying this house till March 1974,when the wife had left the house leaving the children behindwith the plaintiff. Thereafter his children, being of school-goingage, continued to be in the premises and the plaintiff too wascontinuously staying with bis children till 1975. From this yearhe had to be away from the house off and on at his worksite inthe development scheme referred to. In May 1974, the plaintiffafter his wife had left him, had let a part of these premises tothe defendant on a monthly tenancy. This tenancy had beenterminated or purported to have been terminated by a letterdated 28.12.77 sent by the plaintiff to the defendant. The defendantnot having vacated the premises, the plaintiff instituted thisaction for ejectment of the defendant and this appeal arises fromthe order of ejectment entered.
It is contended for the defendant that he is not liable to beejected since the plaintiff has not satisfied all the provisions ofsection 27 of the Rent Act, under which section the plaintiffadmittedly has instituted this action.
Section 27 of the Rent Act requires, inter alia, the landlord tohave been living in, and living only in, another part of thepremises from which the tenant is sought to be ejected during aperiod of not less than six months immediately prior to the dateof acti°n- The rest of the requirements in this section, not beingmateria1* are not in dispute. The defendant disputes that thiBprovision of the section has been satisfied by fee plaintiff. Hisother intention that the notice to quit is not an effeeive notice, Ishall advert to later.
Thece does not appear to be any other section in the Rent Actwhich uses the word ‘living’ or even if there he, on whichanything turns. The word itself has not been defined. In the
CAWeerasinghe v. Chandradasa (Rodrigo, J.)75
definition of residential premises the word used is ‘ occupy’.Indeed even in the section in which the word in dispute isfound, the word used in relation to the tenant is * occupation
Did the legislature then use the word ‘living’ as a term ofart to which a specific meaning is attached or was the word usedby the legislature as an ordinary English word in everyday use ?Counsel for the defendant stressed before us that the operativeword used is ‘ living ’ in this section and inasmuch as this wordhas not been used in any other section, the legislature hadintended a specific meaning in the use of this word, without,however, telling us what the distinction exactly was in respectof legislative intent.
I have looked at the Sinhalese version of the Rent Act and Ifind that in respect of both landlord and tenant the character ofthe physical presence is described by the same word and nodistinction has been drawn. Be that how it may, the Rent Lawsboth here and in England have not been free of difficulties ofinterpretation. Words have used without “ any scientific accuracyof language and present difficulties of interpretation to the courtsthat have to give practical effect to them.” The question is “ whatdoes the word mean and how does it apply to the particularcircumstances of this case ? ” That is a question of law, beingone of interpretation, but nevertheless it is a jury question inthe sense that the word is not a word of art; it must beinterpreted according to its ordinary meaning as a word in theEnglish language in the context in which it has to fce construed ;that is to say, the court of construction must interpret it “ as aman who speaks English and understands English accurately butnot pedantically would interpret it in that context, applying itto the particular subject matter in question in the circumstancesof the particular case.”
The Shorter Oxford Dictionary defines the word ‘living’ ashaving a permanent abode and, it seems to me, that the twowords ‘ living only ’ here were used together to emphasise thatthe landlord was required to have his permanent abode in anotherpart of the premises. That is, he must have occupied his part ofthe premises as his only residence. Any other meaning orconstruction would involve interesting metaphysical analysis andarguments which might end up in a fruitless semantic exerciseor an essay in literature. A man’s residence is where he dwellsand that carries a connotation of domesticity including “ all themajor activities of life, particularly, sleeping, cooking and feedingand where his wife, family and servants live and where he toolives when he is not at his place of work ”, In everyday languagea man has his residence where he has his home.
76Sri Lanka taw Reports(1980) 2 S. L. R.
There is abundant documentary evidence such as thehouseholder’s list of the plaintiff, his electricity bills and radiolicences and the like which are generally the indices of a man’sresidence apart from where his children are staying (his wifehaving separated). The defendant himself had admitted that thedefendant did come to his part of the premises in which hischildren are staying during the weekends. He has also said thathe is himself away from his part of the premises most of theweek as he is a planter at some outstation and therefore he hashad no opportunity of meeting the plaintiff if he had come tohas part of the premises even during the week. The plaintiff statedcategorically that he had no quarters provided to him by theGovernment in the development scheme and that in the courseof his travels from one area to another in this scheme heoccupied circuit bungalows as and when the occasion demanded.He said that the designation “ Resident Manager ” was amisnomer and he had no residence in any place in that develop-ment scheme. He further said that since his wife was not withthe children he was in the habit of regularly coming to wherehis children were living for two or three days of the week inaddition to the weekends. The trial Judge had accepted thisevidence and had reached the conclusion that, in the circums-tances, his permanent abode was in his part of the premises insuit and that he had qualified accordingly to bring this action.These facts do not bring the plaintiff within the doctrine of the•' two-home-man ’. He is not like the sailor who has a home atevery port of call. When the plaintiff was occupying circuitbungalows he did so out of a necessity for short periods. Hehad come back to where his children were when his duties didnot keep him away and through his children he had corpus posses-sion is of his part of the premises when he was not there. Thesepremises were not an amenity for him which he enjoyed at hisWhim and fancy. His occupation of circuit quarters when, hevras on his work rounds was entirely subservient to the purposesof his duties and therefore he could not have been considered tohave dwelt in those quarters. See Gunasekera v. Wijestnghe (1).It see™3 to me that the learned trial Judge is right in hiscontusions and I accordingly hold that the plaintiff was livingduring the relevant time and living only in his part of thepremises.
T>e next matter urged by the counsel for the defendant wasthe question of the effectiveness of the notice. He contended thatrequiring the tenant to vacate the premises on or before the31st °f January 1978 was not conterminous with the monthlytenancy and therefore ineffective. This was not a point taken
CA• Weerasinghs v. Cbandradasa (Rodrigo, J.)77
in the trial Court. The defendant’s position in the trial Courtwas that he received the notice to quite on the 2nd of Januaryand therefore he did not have a month’s notice. It was not hisposition that the notice was bad because he was required tovacate ‘on or before-’ the 31st of January. Counsel for thedefendant has raised this aspect of the matter for the first timebefore us in this appeal- I shall, however, examine thiscontention. Defendant’s Counsel had taken Us through numerousdecisions of this Court.
The essence of a notice to quit is to determine the tenancy. Infact what the Rent Act requires in section 27 is that the landlordshould nave given the tenant one month’s notice of the termina-tion of. the tenancy. So that the view taken in some of t:. .•earlier cases ~uch as Weeraperumal v. Dawood Mohamed. (2)that the notice that was requited is only * reasonable notice’ andnet ‘notice of any definite length of time’ and also the view takenin such cases as the Imperial Tea Company Ltd v. Avamady (3>that a month’s notice need not necessarily commence from thedate of the commencement of the tenancy are now Irrelevant,keeping in mind that still the month's notice must terminate onthe date on which the* period of tenancy expires. In such noticesthe tenant is required to quit on or before a specified date; that*in my view, means that the period of occupation expires onthe midnight of that date. Notices cf termination are of atechnical nature, technical because they are not consensualdocuments, but if they are in proper form, they are effective;and they are in proper form if a month’s notice is giventerm?"sting the tenancy at the end of a current month of thetenancy, v7h.cn the tenant is required to quit on or before, as inthis case, the 31st oi January, all that the notice does is to givenotice to him that the tenancy is terminated on that dates,Whether it is expressed to empire on the 31st January or on the1st of February, whichever the date, the notice can be construedas relating to the midnight which divides them. In fact, it wasnot the position of the tenant in the trial Court that he wasmisled by this notice. See Cfate w. Miller (4). Often the noticesto quit require the tenant to vacate the premises on thefirst day of the month immediately following the endof the previous month. That is where the tenant is requiredto quit on or before the 1st of February, for instance, when thecurrent month’s tenancy terminates on the 31st' of January.Notices in this form also had given rise to the argument that thenotice was bad for lack of certainty and as involving a ‘ brokenperiod The case of Crate v. Miller referred to had been followed!recently in our Courts by T. S, Fernando, A.C.J. in Hanitfa
7£Sri Lanka Law Reports(1980) 2 S. L.R.
SellamuDtu (5). Therein he stated, with which I agreerespectfully, that the substantial question in all cases of thiskind is the intention of the person giving the notice as expressedtherein;’ Neither could it fairly be said that the receiver of thenotice was confused with regard to the meaning of the noticeand in fact, as I said, he did not say that he was confused at thetrial. A quotation from an English case found in the judgmentreferred to can bear repetition, namely,
“The validity of a notice to quit ought not to turn onthe splitting of a straw. Moreover, if hypercriticisms are tobe indulged in, a notice to quit at the first moment of theanniversary ought to be just as good as a notice to quit onthe last moment of the day before. But such subtleties oughtto be and are disregarded as out of place."
In the case referred to, the notice is dated August 27, 1964,requiring the tenant to quit the premises on 1st December, 1964.In the present case the notice is dated 28th December, 1977, andrequires the tenant to vacate the premises on or before the 31stof January 1978. Counsel for the defendant contends that hadthe tenant been required to vacate the premises on the 1st ofFebruary it would have been in order. In the case of■Setlathurai v. Fernando (6) the notice to quit was dated the25th of May, 1961, and required the tenant to quit on the 30thof June, 1961, which is the last date of the month as in thiscase. Alles, J. with whom G P. A. Silva. J. agreed held thatthe notice was a valid one month’s notice and they purported tofollow the case of Edward v. Dharmasena (7) referred to thereinin which Sri Skandarujah, J. revised an earlier decision to the.contrary by him in Abeywickrema v. Karunaratne (8). Thoughthe case was sent back by Alles, J. giving an opportunity to the■defendant to canvass the matter of the notice, still they were; of the firm view that a notice terminating the tenancy on thelast (Jay of the month and requiring the tenant to quit on theIpst qf the month is a valid notice. So that on a view of the'fSngiish case of Crate v.. Miller and the local cases referred to,
. f t see1113 t° me that the notice in question in this case is a valid..notice-
’' -Fbf these reasons, I affirm the order of the learned Magistrate^©eiding that the tenant shall be ejected and dismiss thisapplication with costs.
"L, if. DE ALWIS, J.—I agree.
Weerasinghe v. Chandradasa