Navamany v. Rosairo
COURT OF APPEAL.WIGNESWARAN, J.,WEERASURIYA, J.
CA NO. 755/87 (F).
DC BATTICALOA NO. 114/RE.DECEMBER 3, 1997.JANUARY 23, 1998.
Rent Act, No. 7 of 1972 – S. 13 – Repairs effected by tenant – Set off againstrent without permission.
The defendant-appellant (tenant) contended that the sum of money allegedly spentby him to repair the premises in suit affected by cyclone, without permission eitherfrom the landlord or the Rent Board could be set off against rents due, until thesum spent is exhausted. The District Court held against the defendant-appellant.
Duty of carrying out repairs to the premises in suit and maintaining it inproper condition is primarily vested on the landlord – S. 13.
It is only if the landlord fails to comply with an order for repair andredecoration that the Board would authorise the tenant to carry out suchrepairs or redecoration and incur such expenditure not exceeding a ceilingset by the Board – S. 13 (3).
It is such amount spent or delineated by the order whichever is less thatcould be set off against the rent payable.
Failure of the defendant-appellant in the first instance to have recourseto the forum (Rent Board) designed by law would prevent him from seekinga set off of moneys allegedly spent by him on repairs subsequently.
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APPEAL from the judgment of the District Court of Batticaloa.Cases referred to:
Appuhamy v. Seneviratne – [1981) 2 Sri L.R. 45.
Henderick Appuhamy v. John Appuhamy – 69 NLR 29.
K. Jeganathan with S. Kanagasingham for defendant-appellant.S. Mahenlhiran for plaintiff-respondent.
Cur. adv. vult.
March 27, 1998.
The question that comes up for consideration in this case is whetherthe sum of Rupees Ten Thousand (Rs. 10,000) allegedly spent bythe tenant-defendant-appellant to repair the premises in suit affectedby cyclone in November, 1978, without permission either from thelandlord or the Rent Board, could be set off against rents due fromNovember, 1978, until the said sum of Rs. 10,000 is exhausted.
The learned District Judge, Batticaloa, by his judgment dated26.11.1987 held against the defendant-appellant and entered judgmentin favour of the plaintiff-respondent.
The learned counsel for the defendant-appellant has taken up thefollowing arguments in appeal:
Section 13 of . the Rent Act is applicable only to an existingpremises which can be used as a dwelling place and not toa premises fully damaged. In this instance walls and roof ofthe premises in suit were damaged by the cyclone.
The law that should apply, therefore, is the common law whichpermits such expense and set off.
Navamany v. Rosairo (Wjgneswaran, J.)
The plaintiff-respondent admitted in evidence that the defendant-appellant would have spent Rs. 10,000 for re-erection of wallsand replacement of roof. Hence, the Judge should have notdoubted the expending of Rs. 10,000.
Implied consent of the landlord-plaintiff-respondent was obtainedsince –
the latter knew of the cyclone,
the damage was brought to the notice of the plaintiff-respondent,
the latter had acquiesced when repairs were done,
the latter had not objected to such re-erection.
Since the plaintiff-respondent had admitted that Rs. 10,000 couldhave been spent on repairs no proof of actual expenditure needhave been provided.
These submissions as a whole would now be examined.
Section 13 (1) of the Rent Act is as follows:
"13(1) When the Board is satisfied, on application made by the
tenant of any premises, or on an inspection of such premisescarried out by it or under its authority, that the landlord-
has without reasonable cause discontinued or withheldany amenities previously provided for the benefit ofthe tenant; or
has failed to carry out any repairs or redecorationnecessary in the opinion of the Board to maintain thepremises in proper condition, the Board may make
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order directing the landlord to provide such amenitiesor to carry out such repairs or decoration as may bespecified in the order; and it shall be the duty of thelandlord to comply with the provisions of such orderbefore such date as may be specified in that behalfin the order, or within such extended period as maybe allowed by the Board on application made by thelandlord."
There is nothing in this section which refers to the extent of thedamage sustained by a premises. In any event the question of whethera premises have been completely destroyed or partly damaged mustitself be decided by the Rent Board and not by the tenant unilaterally.It is to be noted that the duty of carrying out repairs to the premisesin suit and maintaining it in proper condition is primarily cast on thelandlord by section 13. It is only if the landlord fails to comply withan order for repair or redecoration that the Board would authorizethe tenant to carry out such repairs or redecoration and incur suchexpenditure not exceeding a ceiling set by the Board, [vide sec. 13
]. It is such amount spent or delineated by the order, whicheveris less, that could be set off against the rent payable, [vide Appuhamyv. Seneviratn&v].
As pointed out by the learned counsel for the plaintiff-respondentthe rationale behind such statutory provision is to keep control on atenant arbitrarily and unilaterally spending a sum of money on a rent-controlled premises and claiming a set off thereafter which might keephim in occupation for a very long time without payment of any rent.
. Since there is specific provision in law as to the forum that shouldbe sought and the mode of implementation with regard to expenditureson repairs, the party affected must necessarily seek recourse to suchspecified forum. In such cases the common law would be in suspense.In Hendrick Appuhamy v. John Appuhamy, it was held that wherea specific remedy has been provided by an Act for the breach ofa relevant statutory right, the remedy provided by the Act must besought.
Navamany v. Rosairo (Wigneswaran, J.)
Thus, the failure of the defendant in the first instance to haverecourse to the forum designed by law would prevent him from seekinga set off for moneys allegedly spent by him on repairs subsequently.
Even if one were to argue that the power of the District Court toinvestigate into the nature of such expenses and make an appropriateorder thereon had not been taken away by the Rent Act yet the failureon the part of the defendant-appellant to prove his alleged expenditureof Rs. 10,000 in 1969 on a house whose rent was onlyRs. 35 per month, precluded the Court from granting any relief tothe -tenant-defendant-appellant.
It is incorrect to say that the plaintiff-respondent admitted anexpenditure of Rs. 10,000 by the defendant-appellant. What the plaintiff-respondent did say at pages 55 and 56 of the brief was that heranswer referred to an expenditure of Rs. 10,000 and it may havebeen spent on repairs but that he never gave permission for suchexpenditure and the need to spend such an amount never arose sincethere had been no destruction to the premises in suit to necessitatesuch heavy expenditure.
At page 58 the plaintiff-respondent had said that he was unawareof the amount spent on repairs and that he believed that the repairswere done with material already in the premises.
When the law had specified as to what steps have to be takenwhen the necessity to repair tenanted premises arose, it is no usearguing that there was implied consent of the plaintiff-respondent.Whether the landlord consented or not the Rent Board had powersto compel the landlord to do repairs or to order the tenant to undertakerepairs and set off expenses from the rents payable. The impliedconsent of the plaintiff-respondent, therefore, is irrelevant to the issue.In any event the evidence of the plaintiff-respondent shows that therewas no such implied consent. In fact, the defendant-appellant hadasked the plaintiff-respondent only in March, 1979, to repair thepremises. The plaintiff-respondent had then said that since rents had
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not been paid he could not repair the premises and that the defendant-appellant should leave the premises in suit to enable him to repair.
Therefore, there was no such consent either implied or directforthcoming from the plaintiff-respondent.
Under the circumstances the arguments put forward by the counselfor the defendant-appellant are found to be untenable and the appealis, therefore, dismissed. Over 10 years have passed from the dateof judgment. The matters urged in appeal appear spurious and possiblydesigned to delay the plaintiff-respondent from enjoying the fruits ofhis litigation.
We make order dismissing the appeal with incurred costs payableby the defendant-appellant to the plaintiff-respondent.
WEERASURIYA, J. – I agree.
NAVAMANY v. ROSAIRO