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COURT OF APPEALEDUSSURIYA, J„
A NO. 788/91.
C. COLOMBO NO. 6225/RE.
FEBRUARY 9, 1998.
Rent Act, No. 7 of 1972 – No. 10 of 1977 – S. 22 (1A). s. 22 (1) (bb) – Noticeof Action served on Commissioner of National Housing – Prior notice in writing
is it necessary? Subsequent notice – Prejudice – Civil Procedure Code, s. 461
Cause of action.
The plaintiff-respondent filed action against the defendant on the ground that thedisputed premises is reasonably required for the use and occupation as a residence.The plaintiff also served notice of action on the Commissioner of National Housingtogether with notice to quit and a copy of the plaint. The defendant-appellantpleaded, inter alia, that the plaintiff-appellant had not complied with the requirementsof s. 22 (1) (bb) and sought the dismissal of the action. The District Court heldwith the plaintiff-respondent. On appeal, it was contended that as the plaintiff hasfailed to give prior notice in writing to the Commissioner of National Housing beforethe institution of the action, he cannot succeed in the action.
Section 22 (1A) – the landlord shall not be entitled to institute any actionfor the ejectment of the tenant. . . unless such landlord has caused noticeof such action to be served on the Commissioner of National Housing.
Section 22 (1A) mandates that the landlord cause notice of such actionto be served on the Commissioner. Unless action has been instituted theplaintiff .would not be able to satisfy the requirements of s. 22 (1A).
It seems that the first limb of the section materially contradicts the secondlimb, while the section starts off on the basis. . . shall not be entitled
Shahul Hameed v. Abdul Cader (Jayasinghe. J.)
to institute any action . . .* goes on to stipulate that *. . . unlessthe landlord has caused notice of such action to be served on theCommissioner . .
Per Jayasinghe, J.
‘An action in Court must necessarily have a case number. Unless actionis instituted there is no case number, to be served on the Commissioner; itis, therefore, my view that it was never the contemplation of the legislatureto create an anomalous situation brought forth by s. 22 1 (A).'
In any event the Commissioner's hand is activated only after a Court entersjudgment against the tenant, thus the failure to give notice before institutionof action cannot and will not prejudice the tenant.
APPEAL from the judgment of the District Court of Colombo.
V. Thevasenadhipathy with V. Thiyageswaran for defendant-appellant.
S.Mahenthiran for plaintiff-respondent.
Cur. adv. vult.
March 20, 1998.
The plaintiff filed action in the District Court of Colombo against thedefendant on the ground that the disputed premises is reasonablyrequired for the use and occupation as a residence for herself andher family. The plaintiff alleged that she gave notice in writing to thedefendant to deliver vacant possession of the premises but the defendanthas failed to comply and that he continues to be in wrongful andunlawful occupation and prayed for damages in a sum of Rs. 30a month. In terms of the Rent Act, No. 7 of 1972, as amended byLaw No. 10 of 1977 the plaintiff served notice of action on theCommissioner of National Housing together with notice to quit anda copy of the plaint and prayed for the ejectment of the defendantand for damages in a sum of Rs. 30 a month till the plaintiff is placedin possession.
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The defendant filed answer pleaded that the plaintiff has notcomplied with the requirements of section 22 (1) (bb) of the Rent Actand that the plaintiff has not pleaded the date of commencement ofthe tenancy and sought the dismissal of the action: and also madea claim in reconvention in a sum of Rs. 30,000 incurred in obtainingan electricity connection: claimed Rs. 2,000 being rates paid to thelocal authority.
The learned District Judge after trial held with the plaintiff andrefused the claim in reconvention of the defendant. This appeal isfrom the said judgment of the learned District Judge dated 04.12.1991.
The only matter urged before this Court by the defendant-appellantwas whether there has been sufficient compliance of section 22 (bb)read with section 22 (1A) of the Rent Act. According to section 22(1A) “. . . the landlord of any premises referred to in paragraph (bb)of that subsection shall not be entitled to institute any action orproceedings for the ejectment of the tenant of such premises. . .unless such landlord has caused notice of such action orproceedings to be served on the Commissioner of National Housing".Mr. Thewasenadhipathy argued that the plaintiffs action cannot succeedas the plaintiff has failed to give prior notice in writing to the Com-missioner of National Housing before the institution of the action. Hestressed that the notice to the Commissioner has been received onlyafter the institution of the action and that the learned District Judgefailed to consider this fact. He submitted that P3 is dated 28.2.1985and according to the evidence led P3 has been received by theCommissioner on 01.03.1985. Action being already instituted on28.02.1985. The non-compliance of the requirements of section 22(1) (1A) would make the action bad in law. I am unable to acceptthis submission of counsel. It is not in dispute that the notice to theCommissioner was sent on the 28th February and action also institutedon the same day. It is in evidence (vide P3) that notice was sentafter institution of the action. It is a possible argument that thejurisdiction of Court is invoked when he puts the notice to theCommissioner into the post. The plaintiff cannot guarantee its delivery.Even though it appears that the notice was subsequent there seems
Shahul Hameed v. Abdul Cader (Jayasinghe, J.)
to be no prejudice caused to the defendant as a result of the institutionpreceding the notice. In any event section 22 (1A) mandates that thelandlord cause notice of action to be served on the Commissioner.This requirement is to enable the Commissioner to look for alternativeaccommodation for the tenant in the event of a decree for ejectmentof the tenant from the premises is entered. It is seen, therefore, thatit is only at that stage that a burden is cast on the Commissionerto look for accommodation. The ensuing liability of the Commissionerstems from the notice that has been served on him under section22 (1 A). The question for determination is, therefore, whether a failureto serve notice prior to the institution of action on the Commissionerwould make the institution bad in law. There is a similar provisionin the Civil Procedure Code. Section 461 lays down the prerequisitesfor institution of action against the Attorney-General as representingthe State or public officer. The words of section 22 (1A) may giverise to the inference that the service of the notice on the Commissionershould precede the institution of action, unlike in section 461 and thecorresponding form 79 in the Civil Procedure Code where the noticecontemplated therein is that of a proposed action. Section 22 (1A)does not set out that the notice to be served on the Commissioneris notice of a proposed action but the action itself and accordinglyit is my view that notice must accompany the plaint after it is registeredin Court so that if and when a decree is entered against the tenantthe said decree is sent to the Commissioner he will then know thatthe said decree relates to the notice already served on him. Section461 of the Civil Procedure Code states that "No action shall beinstituted against the Attorney-General as representing the State. . .until the expiration of one month next after notice in writing has beendelivered to such Attorney-General . . . stating the cause of actionand the name and place of abode of the person intending to institutethe action and the relief which he claims; and the plaint in such actionmust contain a statement that such notice has been delivered …"Under section 461 all that the plaintiff has to do is to inform theAttorney-General the "Cause of action and the relief which he claims"where as according to section 22 (1 A) "the landlord shall not be entitledto institute any action or proceedings . . . unless such landlord . . .has caused notice of such action or proceedings to be served on
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the Commissioner of National Housing". While under section 461 therequirement is to state the “cause of action" section 22 (1A) mandatesthat the landlord "cause notice of such action or proceedings to beserved on the Commissioner". The basic difference is that in the formersituation the plaintiff informs the Attorney-General the "cause of action"while in the latter “cause notice of action or proceedings served onthe Commissioner". A careful examination of the two provisions wouldshow that in the section 461 notice there is only a contemplation ofan action, notice of which is given to the Attorney-General. But, inthe latter case what is envisaged is giving of notice of the action itself.Unless action has been instituted the plaintiff would not be able tosatisfy the requirements of section 22 (1A). It seems to me that thefirst limb of the section materially contradicts the second limb. Whilethe section starts off on the basis that ". . . shall not be entitled toinstitute any action or proceedings . . ." goes on to stipulate that". . . unless the landlord has caused notice of such action or pro-ceedings to be served on the Commissioner. . ." section 22 (1A)presupposes the institution after notice to the Commissioner. As statedit may not be the case. The Commissioner's hand is activated onlyafter a Court enters judgment against the tenant. Therefore, the failureto give notice before institution of action cannot and will not prejudicethe tenant. In any event the landlord also encounters certain practicaldifficulties in giving notice to the Commissioner. Section 22 (1A)requires that the landlord causes notice of action to be served onthe Commissioner. An action in Court must necessarily have a casenumber. Unless action is instituted there is no case number to beserved on the Commissioner. It is, therefore, my view that it was neverthe contemplation of the legislature to create an anomalous situationbrought forth by section 22 (1A). The appellant ought not to succeedfor the reason that failure to give notice to the Commissioner hasnot caused the appellant any prejudice.
EDUSSURIYA, J. – I agree.
SHAHUL HAMEED v. ABDUL CADER