020-SLLR-SLLR-1986-V-2-AKBERALLY-v.-ANNA-FERNANDO.pdf
AKBERALLY
v.
ANNA FERNANDO
COURT OF APPEAL.
P. S. DE SILVA. J. (PRESIDENT) AND GOONEWARDENA. J.
C. A. 474/79 (F).
D C. COLOMBO D/2796/RE.
MARCH 4, 1986.
Landlord and lenant-Notice to quit-Return of notices undelivered-Service on agent.
The defendant was admittedly the tenant of the premises in suit. Attempts to servicenotice to quit on the defendant at his residence. 97/4. Brass Founder Street and at thepremises in suit (Nos. 87/2. 87/4 and 87/5. Brass Founder Street) failed.
Held-
The persons in occupation of premises Nos. 87/2, 87/4 and 87/5 were agents of thedefendant and service on them is sufficient service on the defendant In all thecircumstances, it is reasonable for the court to presume that the agent of the defendanthas deliberately failed or refused to accept the notice and this would amount to a failureor refusal on the part of the defendant to accept notice. If the tenant does not occupythe premises, a person whom the tenant leaves in physical possession to manage andcontrol the premises may be deemed his agent for receiving service of a notice to quit.
APPEAL from the District Court of Colombo.
Cases referred to:
Harrowby v. Snelson and Another -[ 1951] 1 All E.R. 140.
Ranasinghe v. Premadharma – /1985] 1 S.L.R 63.
L. de Silva. P.C. with Shanthi Perera for plaintiff-appellant.
P. A. D. Samarasekera. P.C. with K. Abeypala for the substituteddefendant-respondent.
Cur adv. vult.
May 9. 1986.
G. P. S. DE SILVA, J. (President C/A)
The plaintiff as landlord instituted this action in June 1977 for theejectment of his tenant, the defendant, from premises Nos. 87/1 to87/6, Brass Founder Street, Colombo. The ground of ejectmentpleaded in the plaint and relied on at the trial was arrears of rent from01.01.1974.
In his evidence the defendant admitted that he was the tenant of thepremises in suit which consisted of rooms unde'r one roof. What ismore, he admitted that he failed to pay rent since January 1974. He.however, took up the position that he did not receive any notice oftermination of the tenancy. After trial, the District Judge while holdingthat the plaintiff is in arrears of rent and is entitled to a money decreefor the arrears of rent, refused to order ejectment on the ground thatthe contract of tenancy between the plaintiff and the defendant hadnot been terminated by a valid notice to quit.
The evidence disclosed that the plaintiff's Attorney-at-law sent bypost to the defendant the following notices to quit:
P4 dated 26th May 1976 addressed to the premises in suit;
P5 dated 4th June 1976 addressed to 94/4, Brass FounderStreet ;
P6 dated 12th July 1976 addressed to 94/4, Brass FounderStreet ;
P7 dated 12th July 1976 addressed to 94/4, Brass FounderStreet ;
P8 dated 14th September 1976 addressed to 94/4, BrassFounder Street;
P9 dated 14th September 1976 addressed to the premises in
suit; and
P10 dated 20th January 1977 addressed to 94/4, BrassFounder Street.
It is common ground that all the notices to quit were returnedundelivered. The plaintiff raised the issue:
"Did the defendant deliberately refuse or neglect to accept the
notice to quit?"
The answer to this issue was 'Not proved'. The District Judge heldthat-
" th^re is no evidence that the notice to quit was
returned undelivered for the reason that the addressee refused toaccept the said letters. The only evidence is that the notice has beenreturned undelivered".
Mr. H. L. de Silva for the plaintiff-appellant submitted that on aconsideration of the totality of the facts and circumstances of thiscase, there has been a sufficient and valid service of the notice to quiton the defendant. Mr. Samarasekera, on behalf of the substituteddefendant-respondent, contended that this was a finding on a purequestion of fact and as such should not be interfered with.
It is to be noted that P4 and P9 were addressed to the premises insuit. The defendant admitted that two of his daughters who weremarried were residing at Nos. 87/2, 87/4 and 87/5, Brass FounderStreet. He also admitted that since 1974 his daughters were notpaying him rent. It is not in dispute that the defendant was the tenantof these premises which were residential premises. He, however,stated that he resided at No. 97/4, Brass Founder Street, althoughthe plaintiff's position was that the defendant had informed him thathe resided at 94/4, Brass Founder Street.
Woodfall on Landlord and Tenant (Vol. I, 26th Ed.) at page 989states:
"If the person in whom the possession is legally vested as tenantdoes not personally occupy the premises, it seems that a personwhom the tenant leaves in physical possession to manage andcontrol the premises may be deemed his agent for receiving serviceof a notice to quit".
It seems to me that this statement is sound in principle. It is supportedby dicta in Harrowby v. Snelson and Another (1) and is applicable tothe instant case.
has,deliberately failed or refused to accept the notice and this wouldamount to a failure or refusal on the part of the defendant to acceptthe notice. Jherefore, in my view, the District Judge was in error when[he held that the contract of tenancy has not been terminated.
j This would dispose of the appeal, but Mr. de Silva relying on theauthority in Rahasinghe v. Premadharma (2), next submitted that thedefendant having disclaimed tenancy is, in any event, not entitled to ahotice of termination of the tenancy. I do not agree. The plaintiffaverred in his plaint that "prior to the dates material to this action theplaintiff let to the defendant and the defendant took on rent on onecontract of tenancy the premises bearing assessment Nos. 87/1,87/2, 87/3, 87/4, 87/5 and 87/6, Brass Founder Street, Colombo
13 It is relevant to note that the defendant in his answer
admitted these averments; but he took up the position that the actioncannot be maintained because the contract of tenancy has not beenterminated. In his evidence1 too the defendant admitted tenancy. It istrue, as pointed out by Mr. de Silva, the defendant also pleaded thatthe plaintiff cannot maintain the action because by operation of lawthe premises in suit have vested in the Commissioner of NationalHousing. In my view, this averment by itself does not constitute adenial of the contract of tenancy. Therefore the case of Ranasinghe v.Premadharma (supra) has no application.
For these reasons, we set aside that part of the judgment of theDistrict Judge refusing to order ejectment of the defendant. Thedefendant died while the appeal was pending. We direct that decreebe entered for the ejectment of the substituted defendant-respondent,her servants, agents and all persons holding under her from thepremises in suit. The plaintiff will be entitled to costs of appeal fixed atRs. 315.
GOONEWARDENA, J, – I agree.
Appeal allowed.