SRIYANI PEIRIS' v.
COURT OF APPEAL.
P. S. DE SILVA. J. (PRESIDENT) AND GOONEWARDENA. J.
D.C. MOUNT LAVINIA 579/ED.
CA 415/80 (F).
MARCH 11 AND 12. 1986.
Landlord and tenant-Rent Act, No. 7 of 1972, section 22(1)(bb)-Tenancycommencing prior to date of operation of section 22(1 )(bb)-Notice-Does attornmentto new landlord create a new contract?
Where in a tenancy begun in 1965 the landlord informs the tenant to attorn to anew landlord in 1977 and the tenant in compliance attorns to the new landlord theresultant legal effect is . –
There is a termination of the tenancy under the original landlord.
A new tenancy is created from the date of attornment under the new landlord towhom the tenant attorns and pays rent.
Section 22(1)(bb) necessarily refers to the "current" landlord who institutes theaction for ejectment.
As the tenancy commenced under the "current" landlord who instituted the actionafter the operative date of the Rent Act namely after 01.03.1972, section 22(6) of the_Act applies and one year's notice is required to terminate the tenancy.
A notice of 6 months which was what had been given is insufficient to terminatethe tenancy and the action must fail.
Case referred to:
Fernando v. Wijesekera-(1969) 73 NLR 110.
APPEAL from judgment of the District Court of Mount Lavinia.
J. W. Subasinghe. P.C. with D. Ft. P. Goonetilake and Miss T. Keenavinna forplaintiff-appellant.
Faiz Mustapha with M. I. H. M. Sally and Suhaidtor defendant-respondent.
Cur. adv. vult.
May 16. 1986.
G. P. S. DE SILVA, J. (President, C/A)
The plaintiff instituted this action to eject her tenant, the defendant,from the premises in suit. The action was founded on section22(1 )(bb) of the Rent Act as amended. The section reads thus:
"Notwithstanding anything in any other law, no action orproceedings for the ejectment of the tenant of any premises thestandard rent (determined under section 4) of which for a monthdoes not exceed one hundred rupees shall be instituted in orentertained by any court, unless where-such premises, beingpremises which have been let to the tenant prior to the date of thecommencement of this Act, are in the, opinion of the court,reasonably required for occupation as a residence for the landlord orany member of the family of the landlord
The question that arises for decision on this appeal is whether thepremises in suit "have been let to the tenant prior to the date of thecommencement of this Act". The date of the commencement of theRent Act was 1st March 1972. The District Judge held that thepremises were let to the tenant after 1st March 1972 and since theplaintiff as the landlord has given only 6 months' notice (P4) and hadfailed to give one year's notice in writing of the termination of thetenancy as required by section 22(6) the notice (P4) was bad in lawand for that reason dismissed the plaintiff's action. The plaintiff hasnow preferred this appeal.
At the hearing before us it was not in dispute –
(a) that the standard rent of the premises for a month did notexceed Rs. 100;
(£>) that the defendant was the tenant of the plaintiff's father from1st November, 1965 to 30th September, 1977;
that the plaintiff became the landlord of the premises from 1stOctober, 1977;
that by letter dated 22.9.77 (R3) the plaintiff's father hadrequired the defendant to pay all "future rents” to the plaintiff.
It was also conceded before us that if the finding of the trial Judge thatthe premises were let after 1 st March 1 972 is correct, then the periodof the notice of termination of the tenancy was inadequate and theaction had to fail.
The principal submission of Mr. Subasinghe. counsel for theplaintiff-appellant, was that the contract of tenancy commenced on1 st November, 1 965 when the landlord was the plaintiff's father andthat the same contract continued even after 1 st October, 1977 whenthe plaintiff became the landlord. In other words, counsel argued thatthe contract of tenancy which commenced on 1 st November, 1965continued even after 1 st October, 1977 although the plaintiff's fatherceased to be the landlord and the plaintiff became the new landlord.Mr. Subasinghe urged that an "attornment" does not create a newcontract of tenancy. Counsel maintained that it was the self-samecontract, though with a new landlord. He stressed that the terms ofthe contract remained the same.
I find myself unable to agree with Mr. Subasinghe's submissions. Atthe outset it may be stated that it was not the case of the plaintiff, asset out in the plaint, that there was a continuation of the tenancywhich commenced on 1st November, 1965 even after the plaintiffbecame the landlord on 1st October, 1977. The document R3 isintensely relevant in this connection. It is a letter dated 22ndSeptember, 1977 written on the instruction of the plaintiff's fatherrequesting the defendent to pay rent in the future to the plaintiff. It isnot in dispute that the defendant thereafter paid rent to the plaintiff.Can it then be said that even after R3 the earlier contract of tenancybetween the plaintiff's father and the defendant continued? I think not.
Weeramantry, J. in Fernando v. Wijesekera (1), had occasion to.examine "the precise meaning of attornment when used in our law inrelation to the acknowledgement by a tenant of a new landlord". Afteran exhaustive review of the position under the English Law and theRoman Dutch Law, the learned judge reached the conclusion "that thenotion of attornment contains no element which points to thecontinued existence of the prior contract-a meaning which is oftenmistakenly supposed to be inherent in the term". In my view, Mr.Mustapha, counsel for the defendant-respondent, was right in hissubmission that the effect of R3 was to terminate the contract oftenancy that existed between the plaintiff's father and the defendant.
Mr. Mustapha further submitted that the "letting" contemplated insection 22(1) (bb) of the Rent Act must necessarily refer to the currentlandlord who institutes the action for ejectment. It seems to me thatthis submission is well founded. What is relevant is the contract oftenancy upon which the action is founded and not a contract oftenancy that existed at an earlier point of time. Admittedly the plaintiffbecame the landlord only from 1st October, 1977, that is after thedate of the commencement of the Rent Act. I hold that the contract oftenancy between the plaintiff and the defendant commenced only on1st October, 1977. The provisions of section 22(1 )(bb) apply topremises which were let prior to 1st March 1972. The premiseshaving been let "on or after the date of the commencement of thisAct" within the meaning of section 22(1 )(b), the plaintiff was requiredto give one year's notice in writing of the termination of thetenancy-vide section 22(6). But as stated earlier, the notice given bythe plaintiff is only 6 months’ notice. The notice of termination oftenancy (P4) is therefore bad in law and for that reason the plaintiffsaction must fail.
The judgment of the District Court is accordingly affirmed and theappeal is dismissed with costs fixed at Rs. 210.
GOONEWARDENA, J. – I agree.
2-SRIYANI PEIRIS v. MOHAMED