SUPREME COURTM. D. H. FERNANDO, J.AMERASINGHE, J. ANDWADUGODAPITIYA, J.S.C. APPEAL NO. 8/9211 MAY, 1992. JAYASINGHAM
Landlord and tenant – Letter by tenant stating he will vacate the premises – Doesit amount to a termination of the tenancy? – Rent Act, Section 22.
As the issue was whether in terms of the Rent Act, No. 7 of 1972, a letter given bythe tenant that he would vacate the premises, the Roman Dutch law would be.
irrelevant. Section 22 does not set out as a ground for ejectment the giving of anotice to quit by the tenant to his landlord. Hence the letter given by the tenantwill not terminate the tenancy in terms of the Rent Act.
APPEAL from order of the Court of Appeal.
P. A. D. Samarasekera P.C. with K. deAlwis for defendant-appellant.
A. K. Premadasa, PC. with £ C. de Silva for plaintiff-respondent.
17th December, 1992.
The Plaintiff-Respondent-Respondent (hereinafter referred to asthe Respondent) instituted this action against the Defendant-Petitioner-Appellant (hereinafter referred to as the Appellant) in theDistrict Court of Mount-Lavinia praying, inter alia, for the ejectment ofthe Appellant and all those holding under him from the premises insuit, viz., the ground-floor apartment bearing Assessment No. 42,situated in 36th Lane, Colombo 6, and depictecLas Unit 1 inCondominium Plan No; 480 dated 9th September, 1986 and made bySinnetamby, Licensed Surveyor. The Respondent also prayed fordamages in a sum of Rs. 1,100/- from 1st July to 31st October, 1988,and for further damages at Rs. 275/- per month from 1st November,1988 until the Respondent is restored to possession.
The plaint (marked P1 together with its translation marked P1A)recites that the Appellant entered upon the premises on a monthlytenancy on a rental of Rs. 275/- payable on or before the end of everymonth. The plaint next avers that –
“On or about 25th of May, 1988, the Defendant (i.e. theAppellant) terminated the said tenancy at the end of June, 1988.Notwithstanding such termination, the Defendant continues inwrongful and unlawful occupation from 1st July, 1988, causing tossand damages to the Plaintiff (i.e. the Respondent) at Rs. 275/- permonth."
The answer of the Appellant (marked P2 together with itstranslation marked P2A) admits, the monthly tenancy and avers that
such tenancy commenced with effect from 1.10.1985, but states thatthe Appellant has paid rent at the rate of Rs. 4,250/- per month from1.10.1985 upto 31.12.1988 and thereafter at the rate of Rs. 275/- permonth.
The Appellant specifically denies the averment in the plaint that he(the Appellant) terminated the tenancy. He avers that the contract oftenancy has not been lawfully terminated and that therefore theRespondent cannot have and maintain the action without terminatingthe tenancy.
The Appellant further pleads in his answer that the premises areresidential premises governed by the Rent Act, No. 7 of 1972, andthat, accordingly, the Respondent cannot maintain this action' on theground that the Appellant has given notice to quit the said premises,and adds that he, the Appellant is,.in any event entitled to withdrawsuch notice. He avers that the plaint does not set out the requisitesnecessary to entitle the Respondent to maintain this action inejectment. He also sets out a claim in reconvention in a sum ofRs. 155,756/- being overpayment of rent.
The Respondent filed replication (marked P3 together with itstranslation marked P3A) denying the overpayment and stating that atenant is, in law, entitled to terminate his tenancy with a month’snotice; that thereafter no further notice is required from the landlord;that once tenancy has been terminated either by the landlord or thetenant unilaterally, such notice cannot be withdrawn, and that theprovisions of the Rent Act, No, 7 of 1972 have not affected thecommon law right of a tenant to terminate his tenancy.
At the trial, the parties admitted the fact of the tenancy; that thepremises were residential premises governed by the Rent Act, No. 7of 1972, and that a letter dated 25.5.1988 (marked P5) was sent bythe Appellant (tenant) to the Respondent (landlord).
Thereafter issues were framed by both parties and upon theirbeing accepted by Court, the Appellant moved that his issue No. 4be taken up as a preliminary issue of law in terms of section 147 ofthe Civil Procedure Code, to which Court agreed.
Issue No. 4 runs as follows
“19727 cyd-too tscocOcs’ ocna esni) Oa'SanOj 80£>sn.£>i<D
gScst ^ CjS oqcD© ®», CiBSciQzjtdiO BsfSz^diO ngydS®0criiO ^Ststsiof o^S ©3<r(?"
The English translation would be as follows:-
“In terms of the Rent Act, No. 7 of 1972, does a cause ofaction accrue to the Plaintiff (i.e. the Respondent) to eject theDefendant (i.e. the Appellant) on the basis that the Defendanthas given a letter stating that he will vacate the premises ?”
This issue is founded on the averments contained in paragraph 8(b) of the Appellant’s answer marked P2 (with its translation markedP2A), and reads as follows:-
“The Defendant (i.e. the Appellant) specifically pleads thatthe premises in suit are governed by the provisions of the RentAct, No. 7 of 1972 and that accordingly, the Plaintiff cannot, inany event, maintain this action on the ground that the Defendanthas given notice to quit the said premises.”
After oral and written submissions by both the Respondent and theAppellant (marked P6 and P7 respectively), the learned AdditionalDistrict Judge made order (marked P8) answering the said IssueNo. 4 in the affirmative.
Being aggrieved by the said order, the Appellant moved the Courtof Appeal by way of revision in C.A. Revision Application No. 890/90,praying that the above order be revised. However, on 12.9.91, theCourt of Appeal dismissed the Appellant’s application-with costs.Hence this appeal canvassing the order of the Court of Appeal.
Before proceeding to consider the question whether the said IssueNo. 4 has been answered correctly, I must make the observation thatit is only in document P4, viz., the record of the proceedings of 17thJuly, 1990, (which record has been kept in the Sinhala language),that the said Issue No. 4 (marked P4A) appears in its correct form inSinhala. It is for this reason that I have quoted the said issue in itsoriginal Sinhala.
Although the learned Additional District Judge, in his order dated28.8.90 (marked P8), quotes the said Issue No. 4 correctly in Sinhala,he thereafter proceeds to place an erroneous interpretation thereon,viz., that the said issue speaks of the Defendant (i.e. the Appellant)having, by a letter, “terminated the tenancy” whereas the Defendantadmits only that he gave a letter dated 25.5.88 to the Plaintiff (i.e. theRespondent) and nothing more. The learned Additional DistrictJudge thereafter proceeds to answer Issue No. 4 in the affirmative,having decided to apply the Roman Dutch Law; quite unmindful ofthe fact that that issue specifically calls for an answer “In terms of theRent Act, No. 7 in 1972 …”.
The Appellant’s position has always been that he merely gave aletter (P5) to the Respondent, and that the contract of tenancy wasnever terminated. This position he has set out quite clearly in hisanswer (marked P2 together with its translation P2A).
Paragraph 7 of the Appellant’s answer sets out as follows
“The Defendant (i.e. the Appellant) further pleads that thecontract of tenancy between the Plaintiff and the Defendant hasnot lawfully been terminated and that consequently the Plaintiffcannot have and maintain this action.”
Paragraph 8 (a) of the said answer states
“The Defendant (i.e. the Appellant) specifically denies theaverments in paragraph 3 of the plaint that he terminated thesaid tenancy, but further pleads that, in any event the Plaintiffcannot have and maintain this action without terminating thesaid tenancy.”
It is all the more startling then, to find that in all the papers filed inthis case by the Appellant, the vital portion of Issue No. 4 has beenmistranslated to read, “. . . on the basis that the Defendant (i.e. theAppellant) has by letter terminated the tenancy” whereas, theSinhala original clearly states:- . . .Boon sea gSoaf ^
In this connection, it must be observed that even the Court ofAppeal, in its judgment dated 12.9.91 (marked P13), perpetuates themistranslation by the use of the words, “has by letter terminated thetenancy. ”
It is thus seen that this mistranslation has pervaded the entirecourse of the proceedings, and continued in that same uncorrectedform even during the argument before us.
In considering this matter, it must not be forgotten that this appealis only upon a single question, viz., how Issue No. 4 raised by theAppellant as a preliminary issue of law, should be answered; and if Imay reiterate, that single question is merely whether, in terms of theRent Act, No. 7 of 1972, a cause of action has accrued to theRespondent (i.e. the Plaintiff) to eject the Appellant (i.e. theDefendant) on the ground that the latter has given the former a letterstating that he will vacate the premises.
The letter in question (marked P5) states laconically
“Dear Mr. Arumugam,
We shall vacate your home end of June, 1988. We regret we
could not vacate as promised.Thank you.
Signed/B. G. Jayasingham.”
The simple question raised by Issue No. 4, therefore seems to be,whether the mere fact of the tenant giving the,above “notice” by hisletter, P5, to his landlord, gives rise to a cause of action, in terms ofthe Rent Act, No. 7 of 1972, to the landlord to eject the tenant fromthe premises in question. This issue does not seek to go any furtherinto other areas such as the validity of the “notice" and/or whether thesaid “notice” did in fact have the effect of lawfully terminating thecontract of tenancy.
Learned President's Counsel for the Appellant argued that the saidIssue No. 4 should be answered in the negative inasmuch as, boththe learned Additional District Judge and the Judges of the Court ofAppeal had arrived at incorrect conclusions in their attempts toanswer it. He urged that the letter P5 did not constitute a groundwhich gave rise to a cause of action to the landlord to instituteproceedings in the District Court for the ejectment of the tenant,inasmuch as such a ground is not mentioned in section 22 of theRent Act, No. 7 of 1972. Instead, the Respondent should havepleaded a ground mentioned in section 22. He traced the history ofthe Rent Acts and pointed out that in the earlier enactments, viz., theRent Restriction Ordinance, No. 60 of 1942 and the Rent RestrictionAct, No. 29 of 1948, the fact that the tenant had given notice to quitwas mentioned as a specific ground, but the current Rent Act, No. 7of 1972 deliberately omitted any such ground. He submitted further,that, inasmuch as section 22 of the Rent Act, No. 7 of 1972commences with the words, “Notwithstanding anything in any otherlaw …", recourse could not be had to the common law.
Learned President’s Counsel for the Respondent, on the otherhand, argued that the Rent Acts never purported to repeal thecommon law, and that therefore it was the common law, viz., theRoman Dutch Law, which applied in this case. He submitted that thetenancy could under the common law, be terminated by the tenantgiving a notice to quit the premises and that a cause of action didaccrue to the Respondent to eject the Appellant. He urged therefore,that Issue No. 4 should be answered in the affirmative.
Inasmuch as Issue No. 4 specifically states : “In terms of the RentAct, No. 7 of 1972 . . .", it is clear that the answer to this issue mustbe confined within the four corners of that Act. I therefore have nohesitation in stating that any consideration of the applicability of theRoman Dutch Law is irrelevant to the consideration of this issue. Weare not here being called upon to adjudicate on the entire question ofthe tenancy and the ejectment of the tenant. On the contrary, we arecalled upon to adjudicate upon the limited question couched in veryspecific terms in the form of a specific issue, viz.; Issue No. 4. Thisissue must be considered and answered in the form in which it hasbeen framed and accepted by the learned Additional District Judge,
and it is not competent for us to alter the wording of such issue, orenlarge the scope of such issue in any way nor is it permissible for usto place any interpretation upon its specific wording. We are thereforecalled upon, strictly, to answer Issue No. 4 as it stands. It would bequite another matter and other considerations would arise if thewords, “In terms of the Rent Act, No. 7 of 1972…” were absent.
In considering Issue No. 4 in the context and within the frameworkof the Rent Act, No. 7 of 1972, it may be mentioned that section 22 ofthe said Act, as its marginal note indicates, deals with “Proceedingsfor ejectment”, and sets out the grounds for ejectment. However,nowhere does section 22 mention, as a ground for ejectment, thegiving of a notice to quit by the tenant to his landlord. It is thereforeclear that the giving of such a notice to quit the premises, or, in thecontext of this case, the giving of the letter P5 by the Appellant to theRespondent, stating that he (the Appellant) will vacate the premises,will in no way give rise to a cause of action to the Respondent, underthe Rent Act, No. 7 of 1972, to eject the Appellant from the premisesin suit.
This being the only matter for consideration before us, I wouldanswer Issue No. 4 in the negative.
I therefore allow this appeal and set.aside the order of the Court ofAppeal dated 12.9.91, and direct that the record in this case be sentback to enable the trial in this case to be proceeded with in theDistrict Court of Mount Lavinia.
I also make order that the Appellant will be entitled to his costsboth in this Court and in the Court below.
M. D. H. FERNANDO, J. – / agree.
AMERASINGHE, J. – / agree.
Case sent back for trial to proceed.
JAYASINGHAM v. ARUMUGAM