PERIAPPERUMA AND 2 OTHERS
COURT OF APPEALWEERASEKERA, J.
A. 461/88 (F)
C. MOUNT LAVINIA 505/REFEBRUARY 22, 1996.
Rent and Ejectment – Rent Act 5 of 1972 – S. 37 (2) b and k – Ejectment -Notice to Quit – Attornment – Agent of Landlord.
Plaintiff-respondents instituted proceedings for the ejecment of theDefendant Appellant on the ground of arrears of Rent. One ‘S’ was thelandlord till 1974, and in 1974 he gifted the House to the 2nd and 3rdplaintiff-respondents, and from 1974 though he had collected the Rent hehad handed over same to the owners. In his application to the Rent Boardby the defendant-appellant ‘S’ was referred to as the landlord, but hadincluded the names of all three Plaintiff-Respondents as necessary parties,and subsequently accepted the position that the Plaintiff-Respondents werehis landlords. The District Court held with the plaintiff.
The evidence showed that ‘S’ was only an Agent for the owners after1974. The fact that S collected the Rent may have caused confusion in themind of the defendant -appellant. When his lawyer stated to the Board thathe was accepting the position that the plaintiff respondents were thelandlords and he was only acknowledging a pre-existing state of matters ofwhich the defendant -appellant was vague and undecided. He did not forthe first time for any specific reason attorn Tenancy to the plaintiffrespondents, as such the existing tenancy was confirmed and no NewTenaney was created. S.37 (2) b and (k) of the Rent Act recognises the factthat the person to whom rent is payable need not be the landlord.
The Notice to quit was in order, since the proper land-lords had sentsame. The defendant-appellant must be deemed to have been the Tenantof the plaintiff-respondents at the time of the Notice to quit.
The giving of the proper period of Notice in terms of the law is what isrelevant with regad to a Notice to quit, other matters can be elucidated byEvidence – as done in this case.
Cases referred to:
Seelawathie v. Ediriweera – 1989 2 SLR 17
A. K. Premadasa P.C., with C. E. de Silva for defendant-appellant.
P. A. D. Samarasekera P.C., with Kirthi Sri Gunawardane for plaintiff-respondents.
AN APPEAL from the Judgment of the District Court of Mt. Lavinia.
Cur. adv. vult.
30 April, 1996.
WIGNESWARAN, J.The plaintiff-respondents instiuted this action inter alia for ejectmentof the defendant-appellant from premises No. 346. Pita Kotte, Kotteon the ground of arrears of rent from March 1977 within the meaning ofSection 22(1 )(a) of the Rent Act.
The learned District Judge. Mt. Lavinia after trial held in favour of theplaintiffs by his judgment dated 9.11.83.
The learned President’s Counsel appearing for the defendant-appellanthas taken up before us the following matters:-
The notice to quit is dated 12.8.77.
At the time of the notice to quit there was no tenancy between theplaintiffs and the defendant.
The defendant-appellant attorned to the plaintiff-respondents onlyfrom 11.10.79 at the Rent Board proceedings.
Notice to quit refers to defendant-appellant in occupation of thepremises in suit wrongfully and unlawfully but not as a tenant.
Notice to quit was not given for 3 months as contemplated inSection 22(3) of the Rent Act.
The learned Counsel has therefore argued that the order of the learnedDistrict Judge was in error and has prayed for the dismissal of theplaintiff’s action after setting aside the order dated 9.11.83.
There is no doubt in this case that the Defendant-Appellant was thetenant although he carried on business with two other partners. Atpage 37 of the brief it is stated by the Defendant-Appellant as fol-lows:-
Thus the dispute is with regard to who the landlord/landlords were.Defendant-Appellant since he paid rent to Simon claimed that Simonwas the landlord. Simon has himself given evidence and said that until1974 he took the rent for the 1st plaintiff-respondent and himself. In1974 when his daughter the 2nd Plaintiff-Respondent married 3rdPlaintiff-Respondent the pemises in suit was gifted to the 2nd and3rd Plaintiff-Respondents and therefore though he collected the rentfrom the Defendant-Appellant, he handed over the rents to the 2ndand 3rd Plaintiff-Respondents. He disclaimed landlordship after thegift of the property took place. At page 28 of the appeal brief Simon’sevidence runs thus:-
At pages 29 and 30 of the brief witness Premananda, the other partner,gave evidence and said thus:-
caQ®7si zqj0o &8si ©qzs>£o. &©<qc csSSzrf mzrfes-i
ts>QedOQzrt. qeef eoGcf 298“ @Osi 80 ea3®zri iSsitsi
cs^znOD. 3 nBOzriQO saozztosfce: caqcnsf ts>eo.Oa satsc?. 6
eeaEfesfecogsG & ©aasfanf oeri’zn.0351.
The evidence of these witnesses therefore seems to confirm thatSimon was only an agent for his daughter and son-in-law after 1974.Though the Defendant-Appellant referred to Simon as his landlord, inhis application dated 4.9.78 to the Rent Board he was himself notsure whether Simon was in fact his landlord. That was probably whyhe included the names of all three Plaintiff-Respondents in P3 in item3 of the application, as necessary parties.
At the inquiry, having found that Simon was not the owner he abandonedhis earlier position and acknowledged that the plaintiff-respondentswho were shown as necessary parties in his application were the actuallandlords. The relevant portion of P6 at page 66 of the brief reads asfollows:-
There was no contest with regard to the question of who was the landlordat the Rent Board. The Respondent-Appellant seems to have knownthat the Plaintiff-Respondents had interests over the property occu-pied by him and what their interests were, as there was otherwise nonecessity to mention them as parties necessary. The fact that Simoncollected the rent may have caused confusion in the mind of the Re-spondent-Appellant. When his lawyer stated to the Board that he wasaccepting the position that the plaintiff-respondents were the land-lords he was only acknowledging a pre-existing state of affairs of whichthe Defendant-Appellant was vague and undecided. He did not forthe first time for any specific reason attorn tenancy to the Plaintiff-Respondents. As such the existing tenancy was confirmed and nonew tenancy was created. The wording is quite clear to come to theconclusion that no attornment for the first time took place on 11.10.79.The Counsel simply acknowledged the fact of the Defendant-Respon-dents being the landlords. The learned District Judge understood this
position clearly and correctly, when he gave his judgment dated9.11.83. At page 52 of the brief he has said as follows:-
It must be noted that in Section 37(2) (b) and (k) of the Rent Act thereis a recognition of the fact that the person to whom rent is payableneed not be the landlord. In Seelawathie v. Ediriweera "it was said "… the statement under Section 37 of the Rent Act referred to thebrother-in-law as the person entitled to receive rent: as the Court ofAppeal observes this “does not make (him) the landlord . .. only theagent of the landlord to collect the rents due to the landlord:…"
Thus the notice to quit being sent on 12.8.77 was quite in order sincethe proper landlords had sent the notice to the tenant. The tenant as'stated above did not attorn to the Plaintiff-Respondens for the firsttime on 11.10.79 but instead acknowledged the pre-existing tenancyin an official forum. Thus the Defendant-Appellant must be deemedto have been the tenant of the Plaintiff-Respondents at the time ofthe notice to quit.
D4 states "… I cannot understand how your client is taking up theposition to say that he is the tenant of these premises”. Its meaningmust be gathered from the earlier part of that sentence. What it meansis that the Defendant-Appellant had no right to consider L. D. Simonas his landlord and therefore could not have been deemed to be atenant of L. D. Simon.
Further in the notice to quit, D1 the wrongful and unlawful nature of theoccupation has been referred to in the light of the business called “SwedaFurnishers” ceasing to function. The fact of the tenant, Simon andPremananda continuing in business together and thereafter ceasing todo business must be kept in mind in understanding the contents of D1.
The partners Simon and Premananda have given evidence and con-firmed the state of affairs that existed. Therefore the notice to quitcannot be looked upon as an illegal document. In any event the giv-ing of the proper period of notice in terms of the law is what is rel-evant with regard to a notice to quit. Other matters can be elucidatedby evidence as done in this case. The notice was given on 12.8.77 toquit at the end of 30.11.77. Three clear calendar months’ notice hadbeen given in terms of the law.
I therefore find that there is no merit in the submissions raised onbehalf of the defendant-appellant and accordingly dismiss the appealwith costs fixed at Rs. 2,625/-.
WEERASEKERA, J. – I agree.Appeal dismissed.